Dear PAO,

I used to spend most of my weekends motocrossing or dirt biking. Unfortunately, in one of our trainings, I committed a critical mistake which fractured my jaw. The surgeon suggested using a metal plate to be fastened to my jaw in order to immobilize my mandible. I agreed. However, since the operation required smaller screws, the surgeon cut the larger screws by hand to make them smaller. He did not inform me of this fact, supposing that I could not afford to buy more expensive, smaller screws after sensing that I was already struggling with my down payment. As a result, I experienced excruciating pain after the operation, which required another corrective surgery. Was my right to informed consent violated?

Michael

Dear Michael,

The doctrine of informed consent requires physicians to disclose to their patients material information which would be crucial in the patient’s decision-making process. For failure to disclose the risks of using larger screws in your operation, your surgeon may be held liable for negligence on that ground.

This finds support in the decision of the Supreme Court in the case of Nilo B. Rosit vs. Davao Doctors Hospital, GR 210445, Dec. 7, 2015, penned by Associate Justice Presbitero Velasco Jr., reiterating its earlier decision in Li v. Soliman (2011), where the Court explained the following: “The doctrine of informed consent within the context of physician-patient relationships goes far back into English common law… From a purely ethical norm, informed consent evolved into a general principal of law that a physician has a duty to disclosed what a reasonably prudent physician in the medical community in the exercise of reasonable care would disclose to his patient as to whatever grave risk of injury might be occurred from a proposed course of treatment, so that a patient, exercising ordinary care for his own welfare and faced with a choice of undergoing the proposed treatment, or alternative treatment, or none at all, may intelligently exercise his judgment by reasonably balancing the probable risks against the probable benefits. x x x

“There are four essential elements a plaintiff must prove in a malpractice action based upon the doctrine of informed consent: ‘(1) the physician had a duty to disclose material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as a direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to; and (4) plaintiff was injured by the proposed treatment.’ The gravamen in an informed consent case requires the plaintiff to ‘point to significant undisclosed information relating to the treatment which would have altered her decision to undergo it.'”

Applying the aforementioned in your case, it is clear that your surgeon was duty-bound, but failed, to disclose the possible risk of using a larger screw in your operation. Had you been informed of that risk, you would not have agreed to that procedure. As a result of using larger screws, you suffered excruciating pain, requiring another corrective operation. Thus, your surgeon may be held liable for medical negligence based on the doctrine of informed consent.

We hope that we were able to answer your queries. This advice is based solely on the facts you have narrated and our appreciation of the same. Our opinion may vary when other facts are changed or elaborated on.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to [email protected].