Are the Litigation Floodgates Going to Open Even Wider?

Article excerpt

besides disturbing traditional notions about informed consent, the Kokemoor case has potential fallout in three areas-litigation, referrals, and physician training, according to health-law experts.

To begin with, the Wisconsin Supreme Court avoided specifying when a doctor is obliged to call attention to a gap between his outcome statistics and someone else's. Such fuzziness inevitably invites more lawsuits.

"In Kokemoor, the jury looked at a rather stark difference," says Professor Aaron Twerski of Brooklyn Law School. "But there will be cases in which the difference is far smaller. So there's a lot of judicial work left. We may never get past a vague rule."

Tacoma, Wash., neurosurgeon and lawyer W. Ben Blackett anticipates that plaintiffs' lawyers will seize upon the smallest of statistical differences in risk to file informed-consent suits when a patient has a bad result. "They won't have to show that the doctor violated the standard of care," says Blackett. "All they need to do is find someone with a lower risk of morbidity and mortality, and then argue the patient would have fared better with him."

Besides triggering more informed-consent litigation, the Wisconsin Supreme Court decision could force doctors to refer patients they'd ordinarily treat themselves, says Dan Tennenhouse, a longtime risk-management consultant to Kaiser Permanente in Northern California.

"When you explain to most any patient who's facing surgery with potentially serious complications that you have a 12 percent risk factor, and then tell him that a doctor at a big tertiary-care center 90 miles away has a 10 percent risk factor, you can expect to lose the patient," says Tennenhouse. …