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If patient didn’t know surgeon was abusing drugs, was consent ‘informed’?

A patient signs a consent form for spinal surgery. But later he finds out that the state medical board reprimanded the neurosurgeon for substance abuse during the period of the surgery. Does the patient's consent form qualify as true "informed consent"?  And if not, could the patient make the case that the surgery actually constituted medical battery?

That was the question at the heart of Rice v. Brakel, and it formed an interesting twist on professional licensing and tort law. But in a September 12, 2013 opinion, the Court of Appeals of Arizona rejected the patient’s theory that his surgeon had committed medical battery.

When the patient in the case, Jay Rice, underwent spinal surgery in 2007, complications ensued and one of his doctors concluded that there had been “probable operative injury” to a nerve root and a post-operative scar affecting the nerve root. Three years after the operation, Rice happened to check the state Board of Medical Examiners’ website to see if his surgeon, Arlo Brakel, had a disciplinary history with the state.

It turned out that Brakel did have a dependency on unprescribed prescription drugs, including morphine, Dilaudid, and Percocet, around the time of Rice’s surgery, and that sometime after the surgery Brakel was reprimanded by the board and placed on probation for five years. Brakel had obtained some of his drugs by stealing them from his patients.

Rice’s lawsuit charged Brakel and his practice group with battery, negligence, and breach of contract. Brakel, the patient said, “impliedly represented that he was not illegally taking prescription drugs during the relevant time period” and this was a sufficient misrepresentation to vitiate his consent. The trial court, however, granted the doctor’s motion for summary judgment, and Rice appealed.

The appeals court found for the surgeon as well. Rice cited no evidence that Brakel had misrepresented the nature of the procedure to him, that he did not generally consent to Brakel performing the procedure, or that Brakel exceeded the scope of the procedure, nor did Rice have evidence he would not have consented to the surgery had he been informed of Brakel’s drug dependency, the court said.