Case Study:
Several months after having stomach surgery, Vicki Marsingill called her surgeon Dr. O'Malley, complaining of abdominal pain and nausea. O'Malley advised Marsingill to go to the emergency room and offered to meet her there, but Marsingill said she felt better and declined to go.
O'Malley left it up to Marsingill whether to seek emergency room treatment. O'Malley informed Marsingill that the doctors in the emergency room would probably take X-rays and insert a nasogastric tube to relieve the pressure in her stomach. After hearing that she would likely need to have a nasogastric tube inserted if she went to the emergency room, Marsingill ended the call, telling O'Malley that she was feeling better.
Later that night, Marsingill's husband found her unconscious on the bathroom floor. Paramedics rushed her to the hospital, where an emergency operation later revealed that she had experienced an intestinal blockage, but by then the obstruction had caused Marsingill to go into shock. She suffered brain damage and partial paralysis.
Marsingill sued O'Malley, claiming that he lacked the skill and knowledge to advise her properly and that the information he gave her over the telephone did not allow her to make an intelligent treatment decision.
Section 8.08 of the AMA Code of Medical Ethics addresses the duty of disclosure, providing, "The patient's right of self-decision can be effectively exercised only if the patient possesses enough information to enable an intelligent choice." Marsingill's experts maintained that O'Malley had violated Section 8.08 by failing to give her enough information to make an intelligent choice about wether to seek emergency room treatment. O'Malley acknowledge that Section 8.08 applied to his conduct - that he did have an obligation to give Marsingill enough information so that she could make an intelligent choice as to whether she should go to the emergency room.
Marsingill's proposed instruction by the judge to the jury would have required the jury to decided the sufficiency of O'Malley's communications from the standpoint a reasonable patient in Marsingill's position. The trial court rejected the proposed "reasonable patient" instruction.
O'Malley acquiesced in Marsingill's decision not to go to the emergency room. In the context of a preexisting patient-physician relationship involving postoperative care, a physician's recommendation to do nothing in the face of threatening symptoms is the equivalent to a treatment recommendation and should be accompanied by a duty disclosure.
A physician's acquiescence in a patient's decision not to seek treatment in the same circumstances should likewise be regarded as equivalent to a treatment recommendation subject to the same duty.
The superior court deprived Marsingill of her right to have the jury decide the issue directly from the standpoint of a reasonable patient, and the case was remanded for a new trial on Marsingill's claim for breach of duty to provide sufficient information to allow her to make an intelligent treatment choice.
The appellate court ruled that the jury should have been instructed to the reasonable patient standard to determine whether O'Malley gave Marsingill sufficient information about her condition and treatment choices. On remand, the jury must be instructed to decide the claim from the standpoint of a reasonable patient.
Q1. What other ways could O'Malley to appoint Marsingill to getting help? Ex. Doctors visit.
Q2. List some strategies what would've covered the "what-if" scenarios that commonly occur in this situation ?
Q3. Discuss weather O'Malley gave Marsingill enough information to make an intelligent choice?