The doctor’s duty to inform

Informed consent has recently become a hot topic among medical practitioners and their insurers and attorneys alike. Medical malpractice claims are rapidly becoming more prevalent and litigious, which requires our courts to provide clarity as to the duties and obligations of both medical practitioners and their patients. Informed consent is an aspect of medical law that would appear to be straightforward, however, it has left much room for interpretation and determination as to what exactly is expected on the part of doctors. The case of Sibisi NO v Maitin (311/13) [2014] ZASCA 156, recently handed down by the Supreme Court of Appeal, has highlighted that the medical aspect of informed consent, combined with points of law, may be more complicated than initially anticipated.

The facts
Mrs Sibisi sued her obstetrician and gynaecologist, Dr Maitin, as a result of damages suffered by her daughter Yandiswa. Mrs Sibisi had been a patient of Dr Maitin since the birth of her first child in 2001. He had attended to her when she fell pregnant with Yandiswa in 2006. Mrs Sibisi saw Dr Maitin a week after her due date when she was very uncomfortable. The doctor estimated Yandiswa’s weight at approximately 4kg, which is considered to be a large baby. Mrs Sibisi was admitted into hospital and her labour was induced. After a long and difficult labour, Mrs Sibisi was ready to give birth. The baby was in a difficult position. Her anterior shoulder was stuck and would not pass through the pelvis without assistance (shoulder dystocia). Dr Maitin employed the “McRoberts” manoeuvre, which is used only in an emergency situation when the lives of mother and baby are at risk. After she was born and Dr Maitin noticed that Yandiswa’s right shoulder was not moving, he called the relevant experts to attend to the child. Yandiswa was diagnosed with a right brachial plexus palsy. As a result of this injury Yandiswa is disabled and has very little movement of her right arm, and the effect of the injury is that the root of the damaged nerve has caused her to have a sunken eye.

Legal argument
Mrs Sibisi alleged (among other arguments) that Dr Maitin had a duty to inform her prior to inducing labour of the material risks and complications associated with vaginal delivery and of alternative procedures, such as the option of undergoing a Caesarean, which may have minimised the risks. She also alleged that Dr Maitin should have foreseen the risks of vaginal delivery given the size of the child. She therefore alleged that she had not provided Dr Maitin with her informed consent, as he had not informed her of the inherent risks associated with her procedure. It was pleaded further that as a result of Dr Maitin’s negligent conduct, Yandiswa had suffered a right brachial plexus palsy that had led to her requiring continued medical treatment. Mrs Sibisi also asked the court to develop the common law in line with the constitutional rights to bodily integrity and autonomy by establishing that the test for whether a doctor has obtained a patient’s informed consent is whether, a patient in the position of the plaintiff would have elected not to undergo the procedure and instead elect another one.

The High Court found in favour of Dr Maitin in that his conduct was not negligent and further found no need to develop the common law. On appeal, Mrs Sibisi relied on her rights to have been informed of the risks of vaginal delivery based on the estimated and actual weight of the baby. The court adopted the approach that in order to found liability, the plaintiff would have to establish negligence on the part of the doctor. Judge Lewis correctly commented in the opening line of his judgement that “Giving birth is an inherently risky process” and in order to determine whether Dr Maitin was negligent, the court focused their attention on the testimony of the relevant experts.

The court found that Dr Maitin’s misestimation of Yandiswa’s weight was not negligent, as it is difficult to correctly estimate a baby’s weight when they are over 4kg. On the additional grounds advanced by the plaintiff, the court found that shoulder dystocia was not foreseeable and that a C-section had not been a viable option in the circumstances. Although it was alleged that in utilising the McRoberts’ manoeuvre Dr Maitin had used too much force to pull the baby from her mother, counsel for the defendant advanced the argument that an obstetrician who is required to utilise the McRoberts’ manoeuvre only has minutes to do so and must “use as much force as necessary”, failing which this may result is serious brain damage to the baby or even death. Mrs Sibisi therefore did not discharge the onus of proving negligence on the part of Dr Maitin.

Mrs Sibisi also asked the court to extend the common law and make the test for informed consent that where a reasonable patient, who is informed of all the risks of a vaginal delivery, would have elected to undergo a Caesarean. It was common cause that Dr Maitin did not, at any time, advise Mrs Sibisi of the possibility of shoulder dystocia occurring, which could lead to a brachial plexus injury. The court referred to the test for informed consent as established in Castell v De Greef. The court in that instance found that “for a patient’s consent to constitute a justification that excludes the wrongfulness of medical treatment and its consequences, the doctor is obliged to warn a patient so consenting of a material risk inherent in the proposed treatment”. A risk will be material where:

(a) A reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it; or
(b) A medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk would be likely to attach significance to it.

The court in the Sibisi matter found that the test for informed consent goes to the wrongfulness of the matter. Mrs Sibisi had failed to prove any negligence on the part of Dr Maitin and the court therefore found that there was no need to assess the wrongfulness of the situation. Mrs Sibisi did not place any argument before the court that had she known of the risk, she would have opted for a Caesarean. The appeal was dismissed and the court again found in Dr Maitin’s favour.

Perhaps the court would have elaborated further, should argument have been advanced as to the fact that Mrs Sibisi would have decided on a Caesarean had she been informed of the risks associated with vaginal delivery. The evidence placed before the court was that shoulder dystocia, while a risk of vaginal delivery, cannot be reasonably foreseen based on the weight of a foetus. And that is perhaps the reasons for Dr Maitin not advising Mrs Sibisi of the risk of shoulder dystocia, as he used his discretion as a reasonable specialist and did not feel it was necessary to advise her of this risk.

The court makes a valid point that informed consent goes to the wrongfulness of a medical practitioner’s negligent conduct. Besides that it has been decided on in the case of Castell v De Greef, it is also what the community would decide to be wrongful as element of wrongfulness in delict is based on public policy. The courts have now conclusively demonstrated that informed consent falls within the element of wrongfulness relating to a claim based in terms of delict. But in order to found this element of wrongfulness on a medical practitioner’s conduct, the conduct must be negligent. You cannot have one without the other, as then there would be no claim in delict.

Although Mrs Sibisi was not successful in her claim against Dr Maitin, this case has highlighted the importance of medical practitioners gaining their patient’s informed consent. Furthermore, it has also shown that, even in circumstances where a medical practitioner has done everything within their skill set to assist a patient, a medical malpractice claim can still arise in an ever-increasing litigious society. Medical practitioners are required to assess the circumstances and determine what their patients need to know when coming to a decision whether or not to undergo a procedure and the courts leave that in their hands. Informed consent can prove to be a valuable tool in defending a medical malpractice claim and should not be dismissed as a mere formality.

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