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Hurley v. Kirk, 398 P.3d 7, 2017 OK 55

Facts

In 2010, Dr. Mary Kirk recommended a total laparoscopic hysterectomy for Dana Hurley, who consented to the procedure. Dr. Kirk requested Art Bowen, an independent contractor with medical credentials, to assist in the surgery. Although a consent form was signed, it did not specify who would perform significant surgical tasks. During the surgery, Bowen assisted Dr. Kirk, and Hurley suffered a perforated ureter, leading to further medical complications.

Prior to the scheduled surgery, Dr. Kirk executed a written consent to operate on June 28, 2010. The signed form expressly authorized Dr. Kirk and “whomever he/she (they) may designate as his/her assistants, to perform the following operative or diagnostic procedure(s): total laparoscopic hysterectomy.”

Issue

Whether the doctrine of informed consent requires a physician to obtain the patient's consent before using a non-doctor to perform significant portions of a surgery, thereby subjecting the patient to a heightened risk of injury.

The main issue on certiorari review is whether the doctrine of informed consent requires a physician to obtain the patient's consent before using a non-doctor to perform significant portions of a surgery for which the physician was engaged to perform thereby subjecting the patient to a heightened risk of injury.

Rule

Under Oklahoma's full disclosure rule, a physician must disclose and obtain the patient's informed consent regarding all material risks associated with treatment, including the involvement of non-doctors in significant surgical tasks.

The Court finds that under Oklahoma's full disclosure rule, a physician must disclose and obtain the patient's informed consent.

Analysis

The court found that Dr. Kirk had a duty to inform Hurley about Bowen's involvement in the surgery and the associated risks. The consent form did not adequately disclose who would perform significant surgical tasks, and there were material facts in dispute regarding Bowen's qualifications and the nature of his involvement. The court emphasized that the physician's duty to inform is broad and must encompass all material risks that could affect the patient's decision.

This Court finds that the district court erred in granting the summary judgment motions. Dr. Kirk had a duty to disclose to Hurley, the use of Bowen and Bowen's involvement in performing the total laparoscopic hysterectomy.

Conclusion

The Supreme Court vacated the Court of Civil Appeals' opinion, reversed the district court's summary judgment, and remanded the case for further proceedings, emphasizing the importance of informed consent in medical procedures.

The Court of the Civil Appeals' opinion is vacated and the district court's summary judgment order is reversed as to all issues.

Who won?

The patient, Dana Hurley, prevailed in the case as the court found that the physician failed to meet the duty of informed consent, which is essential for patient autonomy.

The Court holds its decision in Scott v. Bradford , 1979 OK 165, 606 P.2d 554 , its progeny, and this Court's recent pronouncement in Allen v. Harrison , 2016 OK 44, 374 P.3d 812 —rendered during the pendency of this appeal—are dispositive of the issues presented herein.

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