Extension of Therapy to Procedures Other Than

Those For Which Consent Was Obtained

By Joseph Taraska, Esquire

Physicians often find themselves confronted with situations where they deem it advisable to extend their therapy to conditions other than those to which the patient has specifically consented. This most often occurs in surgery where the patient is no longer conscious. The physician must decide whether to proceed or terminate the procedure, discuss the matter with the patient and resubmit him to another surgery with its attendant risks. The question presented is under what circumstances will the law provide the physician with the defense of an "implied consent" from the patient. In other words, for which conditions will the law assume the patient's consent and, thus, hold the physician immune from liability for continuing with his therapy.

In this regard, there are two general directions that courts have taken. The first can be described as the strict point of view. It allows the physician to extend procedures only in true emergencies. The difficulty, however, is with the definition of emergency. Most courts that have considered the matter, define emergency to mean a life threatening situation which must be cured immediately. An example of the application of this strict definition is illustrated by a Kentucky decision. In that case, a twenty year old minor was submitted for an appendectomy. During the procedure it was discovered that the patient's fallopian tubes were full of pus, swollen and sealed at both ends. The surgeon proceeded to remove the fallopian tubes on the theory that they would be taken out within six months in any event. The medical testimony at the trial supported him in this conclusion. Unfortunately, the appellate court held that there was no emergency and as a result, the consent of the patient, or one in her stead, should have been obtained.

There have been courts, however, which have espoused a more liberal view as to when other procedures may be performed. Generally, these decisions provide that even in a non emergency if an unanticipated condition is encountered which seriously affects the health of the patient, the physician may proceed. This view was most clearly enunciated in an often quoted case from the Supreme Court of North Carolina. There, the plaintiff consulted a surgeon who diagnosed her condition as appendicitis. He recommended an operation to which she agreed. During the operation, however, the doctor discovered enlarged cysts on her left ovary. He punctured these cysts but, unfortunately following the operation the plaintiff developed phlebitis. There was no question but that the phlebitis was caused by severed blood vessels which occurred when the cysts were punctured. These cysts were approximately an inch in diameter and although the surgeon knew they did not present an absolute emergency, he also knew that they were likely to grow and become dangerous by reason of their size. The court, in considering this matter, adopted the more relaxed view which holds that the surgeon may extend the procedure under certain circumstances in the absence of an emergency. They framed their rule in this fashion:

Unexpected things which arise in the course of an operation and incidental thereto must generally at least be met according to the best judgment and skill of the surgeon. (citation omitted) And ordinarily a surgeon is justified in believing that his patient has consented to such operation as approved surgery demands to relieve the affliction with which he is suffering (citation omitted).

As is obvious from these cases, there is by no means one general rule which can be applied uniformly throughout this country. Even in Florida the courts have not created a uniform approach to this problem. As a result, a Florida physician must be cautious.

If a true emergency exists, he must, of course, proceed. In the absence of an emergency his approach should be more conservative. If he encounters a condition that he anticipated or should have anticipated, he should not proceed without consent. Even if the condition is unanticipated, courts have generally declined to approve the extension if it involved one or more of the following circumstances:

1. Where the procedure would adversely affect the ability of the patient to reproduce.
    
2. Where an organ or a limb would be removed.
    
3. Where a significant risk of serious complication exists in the expanded procedure.
    
4. Where the expanded procedure is totally unrelated to the original procedure and is truly elective in nature (such as the removal of a mole for cosmetic reasons on the skin of the patient following an internal operation).

As further precaution, a physician's consent form should contain a clause which allows extensions of therapy. Although no form can guarantee immunity from liability, it may make the difference in a difficult case.