Our Coral Gables medical injury law firm was horrified to learn about the Florida Legislature’s passing of HB 479. This law evidences the further destruction of the legal rights of injured patients, while continuing to provide dangerous and unconstitutional protection for doctors and hospitals. The law is dangerous in that, rather than motivating safer and more humane care for patients, it actually insulates health care providers from legal accountability for their errors.
Yesterday, we discussed how Bill 479 affects expert witness testimony. Today, in Part Two, we discuss “Informed Consent” as it applies to cataract surgery. Cataract surgery is the removal of the eye lens often involving replacement with an artificial lens. Complications to the procedure are bleeding, swelling, retinal detachment and often a secondary cataract.
Florida already had in place the Florida Medical Consent Law that requires doctors to inform and advise patients of the risks of undergoing a procedure. These are often thrust into the hands of a nervous patient moments before the procedure begins. There is no requirement that the consents be uniform, nor that they be in the language of the patient, nor that they be of a certain size font or type set, nor provided days or weeks before the procedure. Of course not, because that would simply make the patient more “informed.”
For some inexplicable reason, the Florida Legislature decided that, of all the types of procedures being performed in Florida, cataract surgery needed to have its own informed consent form. This special consent form, if signed by the patient, creates a rebuttable presumption that the doctor actually disclosed the risks to the patient. Therefore, no recovery would be allowed if the patient is injured by a “risk described” in the informed consent.
As a Miami lawyer who represents the elderly, I can only imagine that this law was passed to provide special treatment to eye surgeons to protect them from claims from the injured elderly and those with vision problems who had disputed whether they were properly informed of cataract surgery risks. These are the patients who would most likely be unable to read or understand the consent forms that are thrust into their hands along with insurance papers and prescription authorizations. If the Florida Legislature was truly concerned with having a presumption of proof of informed consent they should have required that the physician performing the procedure personally meet with and video tape the consultation and consent. I am sure that the surgeon that can perform surgery with a laser can operate a video camera, too. If Governor Scott really wants to make sure patients give informed consent, he should have surgeons carefully go through all of the risks with the patient on camera. I am sure that is more reliable than a signature on the bottom line.
Florida Statutes §395.0197 defines adverse incidents as:
2. Brain or spinal damage;
3. Permanent disfigurement;
4. Fracture or dislocation of bones or joints;