Torts

Fact pattern

A patient, who lives in a rural community, visits a local doctor to seek treatment for an unknown illness. The doctor suspects that the patient might have a disease known as Condition X, which can be diagnosed with a blood test. There are two such tests available. The first test involves mixing a blood sample with certain chemicals, then observing the results under a microscope. This test yields false negative results 10 percent of the time. In other words, one out of every 10 tests of a positive sample will read as a negative result. 

The second test uses mass spectrometry equipment to analyze blood samples. This test is more complex than the first test, and it requires costly equipment, which must be operated by specially trained technicians. The second test yields false negative results 0.1 percent of the time. In other words, one out of every 1,000 tests of a positive sample will read as a negative result. 

The doctor tests the patient using the first test. The test result comes back negative. As it turns out, however, this is a false negative, and the patient soon develops more advanced symptoms of Condition X. These symptoms might have been avoided with an earlier diagnosis.

The patient later visits a second doctor, and complains of severe wrist and finger pain that makes it difficult for the patient to use his right hand. Chronic pain of this type is an advanced symptom of Condition X. The second doctor accurately tells the patient that the only available treatment is to inject Drug A into the affected joints. The patient agrees to have the injections. The second doctor knows, but does not tell the patient, that Drug A carries a 1 in 1,000 risk of permanent nerve damage. As a result of the drug, the patient suffers nerve damage and permanently loses all feeling in his right hand. 

The patient sues the first doctor for malpractice, alleging that the doctor was negligent in using the first test instead of the second test. At trial, the first doctor’s expert witness testifies that in rural communities, doctors do not make enough money to afford mass spectrometry equipment. Moreover, the expert testifies that it is difficult to find technicians who are trained to operate the equipment and who are willing to live in rural areas. Accordingly, the expert testifies, the use of the first test is customary in rural communities, including the one where the patient was treated. The patient’s own expert witness testifies that in the expert’s opinion, the use of the first test is always unreasonable, because the second test is so much more reliable. 

The patient also sues the second doctor for malpractice, alleging that the doctor did not obtain the patient’s informed consent for the injection, because the second doctor did not disclose the risk of nerve damage. The patient contends that if the patient had known of this risk, he would not have had the injections. Applicable law follows the patient rule of informed consent, also known as the materiality rule. Applicable law also follows the modified locality rule. 

Questions

1. Did the first doctor violate the standard of care by using the first test instead of the second test? Explain.
2. Did the second doctor commit malpractice by failing to obtain the patient’s informed consent for the injection? Explain.