A patient's right to his or her own medical information is rooted in the
ethical principle of
autonomy2. An
individual's right to control his or her own body extends to the control of
his or her medical information. The principle of autonomy dictates that
patients must be informed of all relevant health information to have proper
control over their health. According to Professor David Thomasma, "At
all times, the default mode should be that the truth is
told."3
Personal autonomy also includes full disclosure of the written medical
record. This right of free access to medical records is codified under United
States federal
guidelines3.
Surgeons should be aware that notes and dictations might be scrutinized by
patients and third parties for the purpose of litigation or for other
reasons.
Because patients have a right to medical knowledge, it is the orthopaedic
surgeon's duty to be candid with the patient. In the case of the patient
above, it is clear that the standard of care has not been met. The recommended
fixation of a forearm fracture is a 3.5-mm plate rather than the weaker
one-third semitubular plate or reconstruction
plate4,5.
The consulting surgeon can present this information honestly.
Even though the case we present here represents a deviation from accepted
practice, there is inherent uncertainty in providing second opinions,
especially for cases in which a consultant is asked to evaluate the judgment
or decisions of a prior caregiver. The consulting physician was not present at
the time that key decisions were made and thus does not know the complete set
of circumstances under which the first operation was performed. There may have
been intraoperative factors, such as the nature of the soft tissues or the
availability of implants in the operating room, that appropriately affected
the surgeon's decision-making. These limiting factors may or may not have been
noted in the operative report. Although the consulting surgeon should be
careful to preface his or her opinion with this important caveat, this
possibility alone should not prevent a consultant from expressing a meaningful
opinion about a patient's prior care.
The American Medical Association (AMA) Code of Medical Ethics
provides guidelines on the topic of patient autonomy and disclosure of a
physician mistake: "It is a fundamental ethical requirement that a
physician should at all times deal honestly and openly with patients. Patients
have a right to know their past and present medical status and to be free of
any mistaken beliefs concerning their conditions. Situations occasionally
occur in which a patient suffers significant medical complications that may
have resulted from the physician's mistake or judgment. In these situations,
the physician is ethically required to inform the patient of all the facts
necessary to ensure understanding of what has occurred. Only through full
disclosure is a patient able to make informed decisions regarding future
medical
care."6
Although the tenets of the American Medical Association's Code of
Medical Ethics6
and the principle of patient autonomy require physicians to inform patients of
all relevant facts, second-opinion physicians do not have a legal obligation
to disclose errors made by other physicians. Physicians who are reluctant to
comment on the mistakes of others have a convincing legal argument (albeit an
unconvincing ethical one) that their evaluation of a patient's prior care is
merely an opinion rather than a relevant fact. To illustrate the legal
distinction, at trial, testimony by the second-opinion consultant would be
merely evidence of the standard of care. The testimony would be subject to
contradiction by other experts and subsequent weighing by the judge or
jury—the ultimate finders of fact.
The precise scope of the legal duty of a second-opinion physician to
disclose the errors of another doctor has not been defined by case law or by
statute; however, existing case law suggests that while a doctor has a clear
duty to disclose his or her own mistakes to the patient, other caregivers do
not have a duty to disclose third-party errors to the
patient7.
In the absence of an absolute legal obligation to disclose errors made by
other doctors, second-opinion consultants are faced with tough choices.
Expressing a negative opinion of a patient's prior care invites involvement of
the second-opinion surgeon in tort litigation as a defendant or, more
commonly, as an expert witness. In cases in which litigation arises as a
result of prior medical error, a consulting surgeon who discloses the mistake
may in fact be unlikely to be named as a defendant; the patient and his or her
attorney would prefer to recruit the second-opinion surgeon as an expert
witness and ally rather than establish an adversarial position. This is
especially true when experts who are willing to testify against fellow
practitioners are scarce. The second-opinion consultant should be advised
that, while other experts can refuse to testify, by virtue of his or her
established relationship with the patient and special knowledge of the case,
the second-opinion surgeon could be subject to discovery, deposition, and
subpoena.
As the physician who is being relied upon for a second opinion, a
consulting orthopaedic surgeon has an ethical responsibility to inform the
patient of all relevant medical facts when those facts are requested, but he
or she does not have a legal requirement to do so. Because he or she was not
present during the original surgery, the consulting orthopaedic surgeon should
express the inherent limitations of his or her knowledge but can still offer a
meaningful opinion. Although it may be challenging to communicate, a frank
discussion of the patient's condition is beneficial to all parties.