Informed Consent Will Require More Informing

By Lowes, Robert L. | Medical Economics, August 11, 1997 | Go to article overview

Informed Consent Will Require More Informing


Lowes, Robert L., Medical Economics


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. …

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