Jean M. Wachter Robert Wachter v. United States
877 F.2d 257 (1989)
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Rule of Law:
To establish a prima facie case for lack of informed consent under Maryland law, a plaintiff must prove not only that a physician failed to disclose a material risk or alternative, but also that this failure caused an actual physical injury that would have been averted had the disclosure been made.
Facts:
- In March 1983, Jean M. Wachter underwent a double coronary artery bypass surgery using saphenous vein grafts (SVG) at Bethesda Naval Hospital.
- By July 1983, the SVG had failed, with the grafts becoming 70-90% occluded, and surgeons recommended a second bypass procedure.
- Wachter's surgeon for the second procedure was Dr. Donal M. Billig. After Wachter specifically inquired about Billig's record, another doctor assured her that Billig was one of the finest surgeons in the country.
- Bethesda Naval Hospital did not disclose to Wachter that Dr. Billig had a history of professional incompetence that later resulted in his dismissal from the Navy.
- Bethesda also did not inform Wachter of an alternative procedure, the internal mammary artery (IMA) bypass, which was not performed at Bethesda but was considered by some surgeons to have a higher success rate for patients like her.
- On August 1, 1983, Wachter consented to and underwent a second SVG performed by Dr. Billig.
- The second set of vein grafts also failed, resulting in the recurrence of Wachter's pre-operative symptoms.
Procedural Posture:
- Jean Wachter and her husband filed a medical malpractice suit against the United States under the Federal Tort Claims Act in the U.S. District Court for the District of Maryland.
- The complaint alleged lack of informed consent, medical negligence, and negligent hiring/supervision of Dr. Billig.
- The United States filed a motion for summary judgment.
- In response, the Wachters voluntarily dismissed all claims except for the lack of informed consent claim related to the second surgery.
- The district court (trial court) granted the United States' motion for summary judgment, dismissing Wachter's remaining claim.
- Jean Wachter, as the appellant, appealed the district court's grant of summary judgment to the United States Court of Appeals for the Fourth Circuit.
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Issue:
Does a hospital's failure to disclose its surgeon's professional shortcomings and a non-experimental alternative surgical procedure constitute a breach of its duty to obtain informed consent where the patient cannot prove the non-disclosure caused the subsequent surgical failure?
Opinions:
Majority - Chief Judge Ervin
No. A hospital's failure to disclose information does not breach the duty of informed consent unless the patient can demonstrate causation. Regarding Dr. Billig's competence, Wachter failed to produce any evidence that his performance caused the graft failure; expert testimony indicated the failure was unrelated to the surgeon's conduct. Regarding the Internal Mammary Artery (IMA) alternative, Maryland law does not require disclosure of every conceivable alternative, particularly those not widely accepted or available at the institution. More importantly, Wachter failed to show that she would have chosen the IMA procedure if informed, or that it would have produced a better result, thereby failing to establish the essential element of causation for an informed consent claim.
Dissenting - Judge Murnaghan
No, as to the surgeon's competence, but Yes, as to the alternative procedure. While Wachter failed to prove Dr. Billig's alleged incompetence caused her injury, the district court erred in granting summary judgment on the failure to disclose the IMA alternative. Wachter raised genuine issues of material fact as to whether information about the IMA—an alternative favored by a significant number of physicians for patients with prior graft failures—would be material to a reasonable patient's decision. A jury could find that a reasonable person in Wachter's position would have chosen the IMA procedure, which offered a greater chance of success, thereby establishing the necessary elements of duty, causation, and injury for an informed consent claim.
Analysis:
This decision significantly reinforces the element of causation in informed consent litigation, making it more difficult for plaintiffs to succeed. The court establishes that a simple failure to disclose, even regarding troubling facts like a surgeon's incompetence or the existence of a viable alternative procedure, is insufficient for liability. A plaintiff bears the heavy burden of proving with evidence—not just speculation—that the disclosure would have altered their decision and, critically, would have led to a better medical outcome. This raises the evidentiary bar for plaintiffs and provides a strong defense for healthcare providers against claims based on theoretical or unproven benefits of undisclosed information.
