This raises the question: Does a doctor have a duty to tell us of these other issues? The answer is in most cases yes. This seems to be common sense but unfortunately it is not. However, where common sense fails, as it often does in medical treatment, there is a jury instruction that will apply in this situation.
New Mexico Jury Instruction §13-1116B addresses the failure to inform the patient of untreated medical conditions and is aptly titled: Causation; failure to inform; condition not treated. The jury instruction reads as follows:
“A doctor who fails in [his] [her] duty to communicate the [condition] [likely result if the condition remains untreated] is liable for harm which results to the patient from the untreated condition if a reasonably prudent patient [or patient’s representative] under similar circumstances would have acted upon the information to avoid the harm.”
What Would a Reasonbly Prudent Patient Want to Know?
One thing that should be noted is that the standard is different than the standard in most medical malpractice cases. This jury instruction is premised on what a “reasonably prudent patient” would want to know to be protected against harm. This may not seem like much but it could prove to be a huge distinction in moving forward with the case.
Standard of Care in the Medical Community Used in Most Medical Malpractice Cases.
In most medical malpractice cases, the standard is a technical/medical standard. Basically, it must be shown that the doctor failed to meet the standard of care for similar doctors in the community. The jury instruction reads in relevant part:
“Duty to possess and apply the knowledge and to use the skill and care ordinarily used by reasonably well-qualified doctors… (other health care provider) practicing under similar circumstances, giving due consideration to the locality involved.”
This seems straightforward enough but it is actually the heart of most medical negligence claims. It is also the aspect of medical negligence cases that requires expert medical testimony to avoid dismissal of the claims. We have discussed elsewhere the need for experts in medical malpractice cases as well as the very significant costs associated with those experts.
The reasonable patient standard may in fact negate the need for an expert on the specific issue of a failure to disclose untreated conditions. Of course, experts may be needed on other matters such as harm related to the untreated condition, causation of that harm, record keeping and medical charting practices to name just a few.
A Jury Can Often Make the Determination Without the Need for Expert Assistance
However, what a reasonably prudent patient would want to know is something that a jury is, in most cases, perfectly qualified to determine. After all, a jury is made up of people who have undoubtedly been patients in the past, and can certainly draw conclusions based upon their own life experiences along with the facts of the case regarding what a reasonable patient would want to know.
The bottom line is that a doctor or other medical professional should disclose medical conditions known to the doctor. Realistically, it would be hard to argue that there are any patients that would not want to know. After all, the person has visited the doctor, which shows concern for one’s health and/or a need for medical treatment. And a reasonable patient is going to want to know what’s wrong with him or her.
There is simply no excuse for a medical professional failing to disclose a known and serious medical condition to a patient. Again, there may be a failure for any number of reasons such as poor charting and/or communication between the various medical professionals.
These failures are avoidable and should not occur. And when they do, and serious harm or death ensues, the medical professionals responsible for these errors should be held accountable. If you or a loved one has been harmed by such an error, you should have the case reviewed by an attorney as soon as possible due tot he unique deadlines and other requirements in New Mexico Medical Malpractice claims.