Disclose your malpractice history

Q: One of my colleagues says that informed consent requires me to tell patients how many times I've been sued. Do I really have to disclose that, and the number of judgments or settlements paid on my behalf?

Some enterprising plaintiffs' attorneys have attempted to file "failure-to-disclose" claims against doctors under state consumer fraud laws. But in most jurisdictions, courts have dismissed these actions, ruling that they must be brought as traditional claims for malpractice.

If a patient specifically asks about your prior malpractice suits, you must be candid about any claims, judgments or settlements. (While patients can't access such information from the National Practitioner Data Bank, some state medical boards or health departments post doctors' malpractice records on their public Web sites.) If you do provide that information, however, make a note of it in the patient's chart.

A related but more common question is whether a physician must disclose his own experience before treating a particular medical condition or performing a surgical procedure. Again, it may depend on whether the patient specifically inquires. Suppose the patient asks, "How many of these procedures have you done, and what complications have you encountered?" In that case, answer honestly and accurately, and note the question and your response in the patient's chart.

If you don't disclose that information voluntarily, and you're sued, your experience may become a "hot button" issue in court. The plaintiffs' expert may claim that you should have revealed your limited experience with the particular procedure. The defense expert, however, will testify that once you've completed your residency and certification in your specialty, and you're credentialed by your hospital to perform the procedure, you're not obligated to inform the patient about your limited experience with it-unless specifically asked.

If a complication does occur during or following surgery, or if the results of your treatment are less than perfect, the patient may file a malpractice claim. In that case, you'll be judged according to the "reasonable standard of care" for that treatment or procedure, not by the number of times you've treated the condition or performed the procedure. But it will matter whether you've been truthful in responding to the patient's queries about your experience.

The author is a malpractice defense attorney with LeClair Ryan in Richmond, VA. He can be reached by e-mail at: jfitzpatrick@leclairryan.com

This department answers common professional liability questions. It isn't intended to provide specific legal advice. If you have a question, please submit it to Malpractice Consult, Medical Economics, 5 Paragon Drive, Montvale, NJ 07645-1742. You may also fax your question to 973-847-5390 or e-mail it to: memalp@advanstar.com