LEX ARTIS MEDICAL EXAMINERS

In the specific case in question, the patient was seeking treatment for a previous badly-performed surgery bearing unsatisfactory results. There was no documentation that contained this warning. Based on the individual case and the patient’s particular circumstances, the surgeon should have issued a warning that the condition “could become worse” in order to give the patient the choice to accept or reject takeing such a particular risk, which could lead to other serious physical and psychological illnesses, etc.

If there was a compliance with the lex artis in carrying out the procedure, but no information was given when determining liability, a cause-effect relationship must be determined between this fact (insufficient information or lack thereof) and the harmful negative outcome.

As we can see in the provided graphic documentation, there has been a harmful outcome, since the aesthetic result, although below optimum efficiency, has been worse than the outcome obtained in the first procedure that was performed on the patient.

Since this type of treatment or satisfactory surgery is essential to the patient’s survival, providing information pertaining to all the risks associated with these procedures is imperative.

The duty to provide information about the risks becomes more relevant in these voluntary surgical procedures “wherein the client’s freedom of choice is clearly superior to that of the patients who have undergone the necessary or curative medicine”.

Reason behind the non-existence of the obligation to use appropriate means in medical science is to give more (thorough) information to the patient regarding the risks of the procedure. Thus, this obligation is intensified because we have a kind of procedure or treatment that is not “beneficial” to the patient’s health. In fact, the specific content of the information transmitted to the patient in order to obtain consent may influence the choice to consent or decline such therapy because of its underlying risks.