RCW 7.70.050 provides that the following elements must be shown in order to prevail on an informed consent claim:
(a) That the health care provider failed to inform the patient of a material fact or facts relating to the treatment;
(b) That the patient consented to the treatment without being aware of or fully informed of such material fact or facts;
(c) That a reasonably prudent patient under similar circumstances would not have consented to the treatment if informed of such material fact or facts;
(d) That the treatment in question proximately caused injury to the patient.
Element 1: Materiality and failure to inform
The first element of the informed consent statute requires that with respect to a physician’s disclosure 1) facts were omitted and 2) the omitted facts were material. Materiality is defined by statute and case law as information that would be considered important to a reasonably prudent person in the position of the patient when deciding whether or not to submit to the proposed surgery or procedure.
Element 2: Patient consented w/o being fully informed
Element 2 is simply a matter of proof.
Element 3: Patient would not have elected surgery even after proper full informed consent
When determining whether a reasonably prudent patient would have declined treatment if informed of material facts regarding his or her treatment a trial court looks to the situation of the patient; i.e., his or her medical condition, age, risk factors, etc. The court then makes findings of fact regarding the risks of the treatment, including any material risks regarding treatment alternatives. Based on these findings along with any other relevant evidence, the trier of fact will ordinarily determine whether a reasonably prudent patient in the plaintiff’s situation would have chosen a different treatment option. Backlund v. University of Washington, 975 P. 2d 950 – Wash: Supreme Court 1999.
The Backlund test then considers the risks of surgery and weighs them against the risks associated with no surgery.
In considering risks, both the magnitude of harm and the probability harm must be considered. For example, if the probability of death is 5%, that single risk may have greater weight than all the more probable risks combined, as the magnitude of harm is life ending. Conversely, if the probability of harm is almost certain, but the magnitude of harm is low, then it would be weighted accordingly.
Washington’s informed consent statute is generally based on the policy judgment that patients have the right to make decisions about their own medical treatment. Keogan v. Holy Family Hosp., 95 Wash.2d 306, 313, 622 P.2d 1246 (1980). It is the patient’s decision, not the physician’s: “There is no room for paternalism or for overprotectiveness.” Miller v. Kennedy, 11 Wash.App. 272, 286, 522 P.2d 852 (1974), aff’d, 85 Wash.2d 151, 530 P.2d 334 (1975). Moreover, even if a doctor’s assessment of a particular risk is accurate, that does not mean that a reasonably prudent patient would not choose alternate treatment despite the risk. See Archer v. Galbraith, 18 Wash.App. 369, 378, 567 P.2d 1155 (1977).
The following reasoning in Backlund is helpful:
The dissent believes the majority opinion somehow undermines patient sovereignty. Dissent at 962. This is not the case. While a patient retains the right to make ultimate decisions regarding treatment he or she is to receive, if that patient chooses to bring an informed consent claim under RCW 7.70.050(1), any assertion that he or she would not have consented to the treatment received is judged under this objective standard. The relevant inquiry here is not whether the Backlunds would or would not have consented, but what a reasonably prudent patient/representative under similar circumstances would have done. RCW 7.70.050(1)(c). Our disposition of this case does nothing to undermine a patient’s right to determine his or her own treatment, but requires such patient’s assertion, that he or she would not have consented to such treatment, to be reasonable if the patient is to prevail on an informed consent claim.