"Octomom" case shines light on standards of care

Key Points

Who should decide how many eggs to implant into a woman with six young children and no means of support? Can a physician ignore professional guidelines simply because his patient is demanding more? What is the physician's potential liability when he yields to a patient's desires, rather than his better judgment? These are just some of the questions that the Medical Board of California may be answering in the months to come as it investigates the decision of fertility specialist Michael Kamrava, MD, to implant a reported six eggs into the 33-year-old Suleman, a move that resulted in eight live births.

When seeking disciplinary action against a physician, all that is ordinarily required is proof of a gross or substantial deviation from recognized standards of care, repeated simple deviations from those standards, or professional misconduct. Resulting injury is not required.

On the other hand, physicians routinely provide or withhold medical care at a patient's behest, even though they may disagree with the decision. Here's where it gets tough. A physician may disagree with a decision to withhold end-of-life care or a cancer patient's decision to forgo promising chemotherapy. But it is ultimately the patient's decision to accept that care. As such, while the physician may disagree with the patient's decision, he cannot override it.

Therefore, the decision to withhold treatment at the patient's insistence is deemed consistent with recognized medical standards.

The bottom-line test is whether the decision to treat was reasonable and whether the patient fully understood the risks associated with an unconventional treatment.

Using this construct, one could argue that implanting six eggs into a woman under the circumstances involved in the California case constitutes a blatant disregard of reasonable medical judgment and, as such, professional misconduct. A physician will need a good explanation as to why he grossly deviated from a standard of care-even if there are no generally accepted standards, but merely voluntary guidelines. As the gap between guidelines and treatment increases, the difficulty in defending against those treatment decisions becomes greater.

While a physician may not be obligated to accept voluntary guidelines, wildly deviating from those guidelines or engaging in conduct that appears unreasonable on its face without medically sound justification could readily be considered professional misconduct.

The author is a health law attorney with Kern Augustine Conroy & Schoppmann in Bridgewater, New Jersey; Lake Success, New York; and Philadelphia. He can be reached at kern@drlaw.com
. Malpractice Consult deals with questions on common professional liability issues. Unfortunately, we cannot offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to memalp@advanstar.com
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