That will happen if this important verdict sets a precedent. The case also has implications for referrals and physician training.
Donna Johnson was in a preoperative room at Sacred Heart Hospital in Eau Claire, Wis., on the morning of Oct. 5, 1990, minutes away from surgery to remove an unruptured, but menacing brain aneurysm. Her neurosurgeon, Richard Kokemoor, stopped by and asked Johnson if she was ready.
According to her sister, Mary Jo Johnson, who was in the room, Donna replied Yes, then added, "My life is in your hands."
Moments later, Donna Johnson asked Kokemoor a question that reverberates still: "Are you sure you know . .. what you're doing?"
A Wisconsin jury decided in October 1993 that if Johnson, now 44, had been aware of Kokemoor's history as a surgeon, she might not have put her life in his hands. As it turned out, the surgery damaged Johnson's brain, leaving her unable to walk or control her bowel or bladder movements. Her vision, speech, and upper-body coordination were partially impaired, too.
Through her guardian, Johnson sued Kokemoor for failing to secure informed consent. Johnson's lawyer, Charles Jordan, argued that the Eau Claire doctor misrepresented his experience with the kind of aneurysm surgery that he performed on Johnson, failed to disclose that his complication rate was sub stantially higher than that of more experienced surgeons, and did not refer Johnson to such surgeons-only 90 miles away at the Mayo Clinic in neighboring Minnesota. Notably, Johnson didn't accuse Kokemoor of surgical malpractice, despite the catastrophic result.
The case, which was appealed after it was decided in Johnson's favor, took four years to resolve. In March 1996, the Wisconsin Supreme Court upheld the jury verdict. Eight months later, the parties avoided a second trial on damages and, according to Jordan, settled for $6.2 million.
Other informed-consent verdicts have faulted doctors for not disclosing their alcohol abuse or HIV-positive status as potential risk factors. But Johnson vs. Kokemoor is the first to center on a doctor's failure to reveal how his inexperience with a medical procedure affected its risk, says Brooklyn Law School professor Neil Cohen. Legal experts say the Kokemoor case has troubling ramifications for informed consent, particularly as purchasers of health care seek to statistically measure physician performance.
"This case is a wakeup call," says Martin Hatlie, director of professional liability and patient safety at the American Medical Association. "It's the next step in the trend of doctors having to disclose more information to patients. think we'll see other decisions like this."
The Wisconsin Supreme Court didn't purport to create a new informed-consent standard. Even so, experts who've studied the decision call it "bad law" owing to the Pandora's box it could open. Will an obligation to disclose inexperience or higher-than-average complication rates prevent young surgeons from mastering their craft? Will community surgeons be forced to refer patients to tertiarycare centers?
And will plaintiffs' attorneys find it easier to convert a bad outcome into a million-dollar jury verdict? Instead of proving that the doctor botched a procedure, lawyers need only argue that the doctor failed to refer the patient to a colleague with a lower complication rate. How much of a difference in complication rates warrants disclosure, anyway? And how much warrants referral?
"No one knows," says physician-attorney Dan Tennenhouse of Corte Madera, Calif. "That's the trouble with this case."
The surgeon used to have a job making artificial trees
Richard Kokemoor apparently no longer performs neurosurgery. A 1996 article in the Eau Claire newspaper reported that he owned a bagel bakery with his wife, psychiatrist Gail A. Tasch, and was doing medical evaluations on a part-time basis. In October 1992, Kokemoor performed back surgery at Sacred Heart Hospital on two patients who, experiencing nerve damage, later sued for malpractice and together collected $500,000 in a 1996 settlement, according to plaintiffs' attorney John Cates of Madison.
Kokemoor now has a courtesy staff position at the hospital with no surgical privileges, says Sacred Heart executive vice president Matthew Hubler, who adds that Kokemoor had requested the change in appointment. Kokemoor declined to be interviewed for this article.
When Kokemoor, now 50, first saw Donna Johnson in 1990, he was an unboarded neurosurgeon five years out of a residency at the University of Texas Health Sciences Center at San Antonio, according to court records. Johnson worked in an artificial-tree factory and, as a hobby, made teddy bears for friends and family. Relatives described Johnson, deemed unable to testify at the trial, as logical and thoughtful.
Johnson's family doctor, Romulo M. Sanchez, referred her to Kokemoor after she complained of excruciating headaches. In the course of his exam, Kokemoor found an enlarging, unruptured aneurysm in the posterior of the patient's brain at the bifurcation of the basilar artery. Kokemoor recommended clipping the aneurysm, which he did not consider responsible for the headaches.
Johnson's relatives quoted Kokemoor as saying that the risk factor for death or impairment in aneurysm surgery was 2 percentwhich happens to be the same risk of an untreated aneurysm is rupturing. In turn, Kokemoor testified that he told Johnson that operating on an unruptured aneurysm carried a 2 percent risk, but had added that because of her aneurysm's location, her risk was higherthough he couldn't determine it exactly. (He made the same assessment in a letter to Sanchez.) Johnson's relatives told the court that Kokemoor described the surgery as safer than an angiogram, and likened it to a tonsillectomy-statements that Kokemoor later denied making.
Johnson twice asked Kokemoor about his experience with the procedure, the second time while she was being wheeled out of the preoperative room to surgery. Her relatives quoted Kokemoor as saying he had performed the surgery "several times"; asked to elaborate, he explained that "several" meant "dozens" and "lots of times."
When Johnson's suit went to trial in September 1993, plaintiffs' attorney Charles Jordan launched a three-pronged attack to show how Kokemoor "misled" his client. First, Jordan focused on Kokemoor's surgical experience. As a resident, Kokemoor had performed 30 aneurysm surgeries, but they all involved aneurysms in the front of the brain. Those, according to the plaintiff's expert witnesses, were generally easier to remove than posterior aneurysms like Johnson's. In between his residency and the Johnson case, Kokemoor had performed aneurysm surgery on six more patients. Two had basilar bifurcation aneurysms, none as large as Johnson's.
Second, Jordan argued that Kokemoor had soft-pedaled the surgery's risk. Neurological experts testified that basilar bifurcation aneurysms were the hardest to remove. Medical literature-which Kokemoor said he'd read in preparation for the surgery-put this procedure's morbidity and mortality rates for even accomplished surgeons at roughly 15 percent. One of the world's busiest and best aneurysm surgeons, the jury learned, had a complication rate of roughly 11 percent for basilar bifurcation aneurysms the size of Johnson's. Kokemoor testified that he couldn't hope to achieve that success rate. In contrast, expert witnesses said that the complication rate for neurosurgeons with Kokemoor's limited experience approached 30 percent.
The plaintiff's lawyer compares Kokemoor to master surgeons
The third pillar of Jordan's case was that Kokemoor should have steered his client to a tertiary-care center with a more seasoned surgeon who had performed hundreds of aneurysm surgeries. In testimony for the plaintiff, neurosurgeon Haring J. Nauta declared that it's unfair "not to bring up the subject of referral to another center when the problem is as difficult to treat as Donna's." Jordan, in his closing statement, maintained that had Kokemoor painted a true picture of the surgery's risks and his own inexperience, Johnson wouldn't have let him operate on her. With only a 2 percent risk of the aneurysm rupturing, Jordan said, Johnson could have taken the time to get a second opinionand find a better surgeon. But she chose to have surgery 10 days after first seeing Kokemoor, Jordan argued, because Kokemoor acted as though her condition were an emergency-and signed a hospital form to that effect.
Anybody in Johnson's situation, said Jordan, had three choices-no surgery, surgery with Kokemoor, or surgery with a more experienced doctor at a tertiary-care center.
Among patients who know the facts, "Dr. Kokemoor's going to come in third every time," Jordan pointed out. The lawyer likened the situation to betting on a horserace: Even if you don't know much about the horses, but somebody tells you the old gray mare is in gate I and Secretariat is in gate 2, where are you going to put your money?
Kokemoor denied that he had described the operation as an emergency or misled Donna Johnson about its risks. His expert witnesses testified that basilar bifurcation aneurysms are operated on at community hospitals like those in Eau Claire, and that the risks attending aneurysms in the front and back of the brain are less divergent than the plaintiff stated. The risk factor in Johnson's particular surgery, they said, was between 5 and 10 percent.
At the same time, Kokemoor's attorney, Douglas J. Klingberg, downplayed the importance of numbers.
"Do people really, in life-anddeath situations, make decisions based on numbers, the way we have been bandying them about?" he asked. "1 don't think informed consent has anything to do with statistical exactness." Rather, he argued, informed consent hinged on the patient understanding "the big picture," and Donna Johnson had understood. "When she said, `Yes, I'm going ahead with the surgery,' she had justifiable reason to do so."
The jury disagreed. It declared that Kokemoor had failed to adequately inform Johnson about the risks of her surgery. In a separate vote, it found that a reasonable person in Johnson's position would not have consented to the surgery with Kokemoor if all the facts had been on the table.
Must a doctor reveal that he had a poor night's sleep?
In November 1993, Kokemoor told a Wisconsin court of appeals that the state's informed-consent law doesn't require doctors to compare themselves with colleagues in terms of experience and risk. The lower court therefore erred, according to Kokemoor, when it admitted such evidence about him. Kokemoor also said that the jury was unfairly led to believe that Donna Johnson was injured because, as a non-master surgeon, he botched the operation.
The appeals court agreed that the informed-consent rules did not oblige Kokemoor to refer the patient elsewhere, and ordered a new trial. Kokemoor's victory at the appellate level, however, was only partial. The court ruled that testimony about the doctor's comparative experience was indeed admissible, and that the evidence was "overwhelming" that Kokemoor "did not adequately inform Johnson."
So in November 1994, Kokemoor turned to the Wisconsin Supreme Court. His lawyers contended that the appellate decision set a bad precedent, forcing doctors to give a defensive "minicourse in medical science." Moreover, if doctors had to discuss their surgical competence, there'd be no limits to what they'd have to reveal: the stress of a recent divorce or a poor night's sleep, for example. Finally, any physician who was less than a "master" would be liable if a patient experienced a bad result, no matter how well the physician performed.
The Wisconsin high court reversed the appellate decision and upheld the original verdict in its entirety. Wisconsin law, the court wrote, requires doctors to discuss "all alternate, viable medical modes of treatment." For Donna Johnson, that meant information about Kokemoor's experience and risk statistics compared with other surgeons, and the availability of those surgeons. The court also was of the opinion that this information did not unfairly burden Kokemoor, or confuse the jury about the difference between faulty informed consent and malpractice.
The court ruled, though, that it was not always necessary for "physicians to give patients comparative risk evidence in statistical terms to obtain informed consent." Rather, the admissibility of such evidence depends on the individual case. In Johnson vs. Kokemoor, the court said, a vast body of medical literature and expert opinion agreed that the difference in surgical experience affected surgical risk.
The case was bound to happen, say legal scholars The Kokemoor case hasn't rewritten the book on informed consent-at least not yet. In handing down its decision, the Wisconsin Supreme Court made binding law just for that state.
Nevertheless, most legal experts say the Kokemoor verdict departs from the traditional understanding of informed consent. "The general rule has been to discuss complication rates about an invasive procedure, but not your own track record," says John Campano, senior vice president and general counsel for Group Council Mutual Insurance Co. in New York.
David Karp, loss prevention manager for a malpractice carrier, Medical Insurance Exchange of California, sees the situation a bit differently. "The notion of discussing your experience-or lack of it-has always been around, and I tell doctors that if they're performing a serious operation, like heart surgery, for the first time, it may be prudent to disclose that," says Karp. "What may be new is the doctor's experience as a primary subject of litigation. Just this year, my company got its first case in which the plaintiff alleged that his physician didn't adequately disclose his level of experience."
To the AMA's Martin Hatlie, the Kokemoor case is a sign of the times. "We've watched the law on informed consent evolve," he says. "The standard used to be what the average doctor thought his patient should know. But with the rise of medical consumerism, there's been a shift to basing informed consent on what a reasonable person in the patient's shoes would want to know. And the more information there is about physician performance, the more patients' expectations will be raised."
The outcomes movement in the managed-care era, for instance, feeds patients an increasing amount of physician-performance data. At least two states-New York and Pennsylvania-have published the mortality rates of heart surgeons, adjusting them for the severity of the patient's condition, though many doctors distrust the reliability of such figures. The National Committee for Quality Assurance is incorporating more results-oriented performance yardsticks in its Health Plan Employee Data and Information Set, or HEDIS, which allows health plans to develop physician "report cards."
"Managed care recognizes the need for patients to have more information," says attorney Fay Rozovsky, vice president and director of risk management of The Reciprocal Group in Richmond, Va. "So the impetus for increased disclosure is coming from managed care, and it will upset the applecart as far as informed consent is concerned."
Brooklyn Law School professors Neil Cohen and Aaron Twerski predicted four years ago in a journal article that the outcomes movement would-and ought to-spark informed-consent cases such as Johnson vs. Kokemoor. "Ten years ago, nobody thought a case like Kokemoor was possible," says Twerski, whose article was quoted in the Wisconsin Supreme Court decision. "Now it's happened."
In the Jocular Vein
How do you read a map?
During my 13 years as financial manager of my husband's practice, I received many requests for information from insurance companies. None of them made me wonder about the education of the insurance clerks as much as the one I received recently. She placed two long-distance calls to our office before finally reaching me to ask "Can you tell me where the Cleveland Clinic is located?" When I answered "Cleveland," she expressed relief and thanks for my assistance. "We'd checked everywhere," she said, "and couldn't find out."
-Deborah J. Beyer
Paw Paw, Mich.
The author is a freelance writer in St. Louis.…