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What is Informed Consent?

In Hohns v. Gain, M.D., ___ A.2d. ___ (Pa. Super. 2002), the plaintiff sued a surgeon for failure to obtain informed consent prior to the performance of a repeat breast biopsy. The plaintiff had previously undergone breast biopsies in the late 1980s due to a positive family history of breast cancer. One of her prior biopsies was positive for carcinoma in situ after which an additional biopsy was performed to assure that there was no additional cancerous tissue. The biopsy at issue was performed in 1997 after the plaintiff developed breast firmness. The biopsy was recommended to rule out the recurrence of cancer. The plaintiff alleged that she suffered an inferior cosmetic result requiring reconstructive surgery. She alleged that she was not told that substantial disfigurement could result and had she been told, she would have obtained more information and would not have come to any quick decisions about having the biopsy.

A trial, the jury determined that while the doctor failed to obtain informed consent, the failure was not a substantial factor in bringing about the harm. On appeal, the Superior Court agreed. It found that the plaintiff's overriding reason for having the biopsy was because she wanted to be sure that she was 100% cancer free. According to the Court, "if other factors completely dominate the patient's decision to proceed with a procedure, [the] lack of information cannot be deemed substantial."

This case illustrates that claims for failure to obtain informed consent cannot be looked at in a vacuum and that it is helpful to consider other factors which contribute to a patient’s consent and the effect that the other factors bear on producing that consent.


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