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Jackson v. State6/29/2005
inadequate in that it failed to properly note the risks and provided no explanation of what "if indicated" meant. Dr. Bowling explained that hysterectomy is a risk of a myomectomy in circumstances where intractable bleeding occurs. Thus, hysterectomy should have been listed as one of the risks. Dr. Bowling also believed that Ms. Jackson was not informed after surgery that her uterus and ovaries had been removed. She felt that Ms. Jacksons' shock at finding out what was done to her indicated that she was not properly informed prior to surgery and did not give informed consent.
Dr. Wise believed that the consent form signed by Ms. Jackson was proper. He did find it "perplexing" that the medical records included a note on February 21,1995, indicating that the procedure was fully explained to Ms. Jackson on that day. He suggested that she was either not informed or in denial, but he concluded that Ms. Jackson's consent had been properly obtained. Dr. Wise testified that the possibility that a TAH/BSO might have to be done was noted throughout Ms. Jackson's medical chart and on the consent form. He also testified that Dr. Swiger's conversation with Ms. Jackson regarding the procedure, risks, and signing of the consent form was documented in the progress notes. Dr. Wise explained that the phrase "if indicated" is commonly used on consent forms and that it signifies the exercise of medical judgment as to what is needed at the time of surgery.
He noted that it is something impossible to explain completely prior to surgery. When questioned about why Dr. Kleinpeter's name was on the form when Dr. Swiger signed it, Dr.Wise explained that Conway's staff and residents work as a team and that it would not be unusual for one physician to write in the information and another to then have the actual discussion with the patient and obtain the signatures. He concluded that he had never encountered a situation where the patient's signature was obtained prior to filling out the consent form.
Eunice Lee, the nurse who signed the consent form as a witness, did not recall the actual signing of the form. However, she testified she never witnessed a physician present a blank form to be signed nor did she ever see anything added to a form after it was signed.
Dr. Swiger's affidavit states that it was his practice and Conway's policy to inform the patients in the presence of a nurse of the expected procedures, any possible complications, and alternative procedures. The affidavit further states that he discussed the procedure with Ms. Jackson and obtained her consent in the presence of Nurse Lee. The affidavit states that he advised Ms. Jackson in general terms that he would remove the fibroids and attempt to clear her tubes, and that if indicated he would have to remove her uterus, tubes, and ovaries. He also advised of the risks of bleeding, infection, infertility, and ectopic pregnancy as set forth on the consent form.
From this evidence, we find no deficiency in informed consent due to the appearance of both Dr. Kleinpeter's and Dr. Swiger's names on the form. As explained at trial, Conway serves as a teaching hospital and utilizes a team approach in treating patients. Nothing in the record shows this to be a defect that would nullify informed consent. Nor do we find any deficiency in informed consent due to the decision to proceed to surgery without the Lupron therapy. Ms. Jackson clearly agreed to this course of action by submitting to surgery. Her remaining complaints require a closer analysis.
The consent form describes the planned procedure as a myomectomy and neosalpingostomy and provides that the TAH/BSO will be performed "if indicated." The form explains the
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