Physicians Duty to Obtain Patients Informed Consent for Obstructive Sleep Apnea Surgery

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Physicians have a general duty to provide their patients with sufficient information concerning their diagnosis, the nature and reason for the proposed treatment, the risks or dangers involved, the prospects for success and alternatives methods of treatment and the risks and benefits of such treatment (49). An unpublished decision of the Tennessee Court of Appeals discusses a physician's duty to inform a sleep apnea patient of CPAP treatment before performing uvulopalatopharyngo-plasty (UPPP) (50).

The case involved a board-certified otolaryngologist who scheduled a nonurgent tonsillectomy for his 49-year-old male patient. The patient asked whether the procedure would help his snoring. Examining the patient further, the physician diagnosed mild sleep apnea and recommended surgical treatment. The patient testified at trial that he heard the doctor say that the doctor would trim his uvula, but the physician's notes indicated "surgery discussed, risks, and complications, schedule tonsillectomy, septoplasty, UVPP (uvulopharyngoplasty)" (51). In fact, the defendant physician performed the UPPP procedure. At no time did the physician advise his patient as to any nonsurgical alternatives to remedy his snoring.

The patient suffered various neurological disorders following the surgery and brought a malpractice action against the physician. Plaintiff based his claim on the physician's failure to inform his patient of noninvasive alternatives and failure to inform him of the diagnosis of OSA so that the patient could be properly informed of risks that stemmed from that diagnosis. In support, Plaintiff's medical expert testified that the physician should have informed Plaintiff of noninvasive snoring treatments, such as CPAP and laser surgery. The expert further testified that the physician should have ordered a sleep study to determine the presence of sleep apnea and the severity of the condition. However, on cross-examination, the expert admitted that even he did not send all of his patients who presented with OSA symptoms for a sleep study and that a sleep study was not required to identify the location in the throat that caused the snoring (52).

The physician presented the medical testimony of two fellow otolaryngolo-gists. These doctors testified that the treating physician informed the patient of the procedure and risks consistent with the standards of the community. The jury also considered the broad language of the written consent form signed by the patient. On the basis of the expert testimony and the patient's written consent, the jury determined that the physician properly informed his patient and found for the physician (53).

What is unknown is a physician's responsibility to recognize the documented link between sleep apnea and hypertension, cardiovascular disease, and other diseases (3) when performing routine examinations. The Cornett case discussed above indicates the risks attendant to physicians who fail to recognize the urgency of the disease. Increased awareness of sleep medicine and recognition by the American Board of Medical Specialties of sleep medicine as a subspecialty (54) may bring minimum sleep inquiries into the community standard of practice for cardiologists, pulmonologists or family practice physicians whose patients present with typical OSA markers.

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