Failure to obtain informed consent for tubal ligation

Presentation and physician action

A 19-year-old woman came to her ob-gyn to begin prenatal care for her second pregnancy. A year earlier, she had given birth to twins via cesarean delivery. The patient opted for a second cesarean delivery, and the procedure was scheduled for July 20.

On July 20, the patient came to the hospital for the cesarean delivery. According to testimony from the labor and delivery nurses, the patient said that she was upset because she wanted a bilateral tubal ligation (BTL) at the time of delivery, but Medicaid would not pay for a BTL until she was 21 years old. The ob-gyn agreed to perform the BTL and not charge the patient for the procedure. The patient signed a consent form indicating that she wanted a BTL as well as a cesarean delivery.

The ob-gyn indicated that he had no recollection of any conversation with the patient about the BTL that morning at the hospital. However, on the consent form he wrote that the risks of the procedure had been discussed, including that BTL is not always successful and that it is irreversible. Because he wrote on the consent form himself, he knows that he had some conversation with her at the hospital regarding the BTL.

The ob-gyn performed the cesarean delivery and a BTL without incident. Though he did not recall this specific incident, the ob-gyn testified that it is his standard practice immediately before snipping the tubes to again ask the patient if she is sure she wants a tubal ligation.

Following the delivery, the ob-gyn returned to his office and wrote in the patient’s progress notes “op note — patient specifically requested BTL with CS. Understood risks, failure rate, etc. (1) RCS; (2) modified Pomeroy BTL. Female 7 lbs. Apgars 8/9.”

The patient returned to the ob-gyn’s office for a postpartum visit on August 15. She was seen by the advanced practice registered nurse (APRN). According to the APRN, she discussed the tubal ligation during this visit because her notes say, “use over-the-counter Aleve or ibuprofen for cramps, if needed,” and that is what she normally discusses with a patient who has had a recent tubal ligation.

Allegations

A lawsuit was filed against the ob-gyn, alleging failure to obtain informed consent for the BTL. The patient claimed the BTL was performed without her consent or knowledge and that she did not know she had been permanently sterilized. She stated that she went to the postpartum visit to ask for a prescription for oral contraceptives, and it was then she learned that she had been sterilized.

Legal implications

The plaintiff’s ob-gyn expert testified that a 19-year-old patient needs thorough counseling to ensure understanding before undergoing a sterilization procedure. He stated that the defendant should have waited 30 days between counseling/consent and the performance of the procedure. This expert believed counseling is even more crucial in teenaged patients because they may change their minds in the future. He also claimed that Medicaid’s refusal to pay for the procedure for a patient under the age of 21 was further proof that the BTL should not have been performed.

Though the defendant had no memory of the event, he testified conclusively that he would never perform a BTL without first obtaining consent. His notation on the consent form and his note in the patient’s medical record were proof that informed consent had been obtained. Additionally, three labor and delivery nurses testified that they specifically remembered the patient and that she adamantly wanted the BTL.

The patient claimed that she went to the postpartum visit to obtain a prescription for oral contraceptives and was upset to learn that she had been sterilized. There was no note in the patient’s chart about this alleged event.

The APRN who saw the patient at this visit stated that the patient did not express a need for birth control. If she had, it would have been indicated as a chief complaint in the record. The NP had no recollection of the patient being upset or alarmed and was adamant that such information would be indicated in the chart.

Disposition

This case was taken to trial and the jury returned a verdict in favor of the defendant.

Risk management considerations

In this case, the patient made an important decision on the day of an elective, scheduled cesarean delivery. When this occurs, it is a good risk management practice to include comprehensive documentation of the counseling and the patient’s consent. It is also important to document notes contemporaneously.

The jury verdict for the defendant was supported by unwavering testimony from the physician and three nurses that the patient adamantly wanted the tubal ligation.

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