The U.S. Court of Appeals for the Tenth Circuit recently issued a decision that may have an overarching impact on suits against physicians for lack of informed consent. Miller v. Bender addressed a situation where a physician affirmatively gave false statements to direct patient questions concerning the physician’s track record with certain medical procedures, whether the physician had ever been sued, whether he ever had medical licensure problems, and whether he had consulted the patient’s previous surgeon. Applying Wyoming law, the Tenth Circuit held that while a physician does not have an affirmative duty to disclose “physician specific” information, he must answer truthfully when asked direct questions seeking concrete verifiable facts.

The patient claimed that had she known about the doctor’s previous negative experiences with the procedures and lawsuits, she would not have allowed him to perform the procedure on her. The physician claimed that Wyoming’s informed consent doctrine, known as the “professional standard,” only imposes an affirmative duty upon physicians to fully disclose to the patients any serious risks involved in a procedure which the reasonable practitioner of like training would disclose in the same or similar circumstances. The physician claimed that because he was under no duty to divulge the information in the first place, the patient’s informed consent cannot be challenged. The physician also argued that there was no proof his misrepresentations caused the patient an increased risk of injury. The court ultimately determined that the “professional standard” for informed consent does not allow a physic ian to give untruthful answers to direct questions asked by a patient related to the contemplated procedure.

The court’s holding was very narrow, however, and only applies to misrepresentations about “physician-specific information in direct response” to patient questions about “concrete verifiable facts in the course of obtaining patient consent.” It would not apply to the “doctor’s subjective opinion or judgment as to the quality of his performance or abilities,” such as “how good of a surgeon are you?”

Additionally, whether the misrepresentations cause increased risk of injury was held to be a question for a jury and the court remanded the case to the trial court to determine that issue.

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