Can a surgeon be held liable for performing a biopsy without informed consent during an esophagogastroduodenoscopy (EGD) procedure?

The Lawsuit Will Likely Be Successful Due to Lack of Informed Consent

The lawsuit against the surgeon will most likely be successful because informed consent was not obtained for the biopsy procedure, which is a clear violation of medical ethics and legal requirements. 1

Legal and Ethical Framework for Informed Consent

Informed consent is both an ethical obligation and a legal requirement for physicians before performing any medical procedure. The guidelines are clear on this matter:

• Informed consent must be obtained before performing any endoscopic procedure 2
• For consent to be valid, it must be voluntary, informed, and the person consenting must have the ability to make the decision 2
• The clinician performing the investigation is responsible for ensuring valid consent before treatment begins 2

Analysis of the Case

Violation of Informed Consent Requirements

In this case, several critical violations occurred:

1. Scope of Consent Was Limited: The patient was explicitly told that the only action would be to determine whether he had a peptic ulcer. Taking a biopsy went beyond this agreed-upon scope.

2. Patient Under Sedation: The decision to perform the biopsy was made while the patient was under conscious sedation, making it impossible for him to provide consent at that time.

3. No Documentation of Expanded Consent: There is no indication that the surgeon discussed the possibility of finding other conditions or taking biopsies if something else was discovered.

Complications Resulting from Unauthorized Procedure

The unauthorized biopsy resulted in:

• Excessive bleeding
• Overnight hospitalization
• Patient distress upon learning what occurred

Legal Implications

The British Society of Gastroenterology guidelines clearly state that informed consent should be obtained in writing prior to the biopsy procedure 2. This includes explaining:

• The nature of the proposed procedure
• The reason for the procedure
• The benefits of the procedure
• The risks and complications
• Alternatives to the procedure

None of these discussions regarding the biopsy occurred before the procedure.

Counterarguments and Their Flaws

Some might argue that:

1. Medical Necessity: The surgeon acted in the patient's best interest by taking a biopsy of an unexpected finding.

   • Flaw: This does not override the requirement for informed consent for non-emergency procedures 1

2. No Permanent Injury: Since no permanent physical injuries occurred, the lawsuit should fail.

   • Flaw: The legal standard for informed consent does not require permanent injury; the violation itself is actionable

3. Implied Consent: The patient consented to the EGD, so biopsy was implied.

   • Flaw: The patient was specifically told only diagnostic visualization would occur, creating a clear limitation on consent

Best Practices to Avoid Similar Situations

To avoid such legal issues:

• Discuss all reasonably possible interventions that might be performed during the procedure
• Document these discussions thoroughly in the medical record
• Consider obtaining consent for potential biopsies if abnormalities are found
• If the patient is under sedation and a non-emergency situation arises requiring additional intervention, defer the intervention until proper consent can be obtained

Conclusion on Legal Outcome

The lawsuit will likely be successful because the surgeon performed a procedure (biopsy) that:

1. Was outside the scope of the consent given
2. Was not an emergency intervention
3. Could have been deferred until proper consent was obtained
4. Resulted in complications requiring hospitalization

This case highlights the critical importance of obtaining proper informed consent that covers all potential interventions before performing any medical procedure, especially when the patient will be under sedation and unable to provide consent during the procedure itself.