McNair: Informed Consent

Andrea M. McNair v. Eric K. Shinseki, Opinion Number 09-1813, decided November 18, 2011 involved a remand of the veteran’s claim for compensation for neuralgia of the breast (focal nerve damage) after a surgery at a VA facility.

The patient underwent a breast reduction at a VA facility which resulted in nerve damage and pain. She sought compensation under the theory that she was not informed of the chance of this type of pain occurring as a result of the surgery. The Board found no evidence of negligence or fault in the surgery and that the patient was provided with informed consent prior to surgery. The VA pointed to a signed generic informed consent form and applied the presumption of regularity to find the patient was properly informed of risks.

The issue in this case was the signed generic informed consent form versus the patient’s testimony that she was not informed of the possibility of continuing pain post-surgery.

The Court specifically found the presumption of regularity did not apply “to the scope of the advice and information given by a doctor to his patient” and that “such advice and information, which is predicated on the unique characteristics of each patient and each medical procedure, is not ‘the product of a consistent, reliable procedure,’ which is the ‘root’ of the presumption of regularity in our caselaw.”

The Court noted the Board found the preponderance of the evidence was against the patient’s assertion she was not informed of the possibility of neuralgia but that the reasons or bases of the determination was inadequate.

The Court also considered if the possibility of neuralgia would have been a minor deviation. 38 CFR Section 3.361(d)(1)(ii) states a finding of informed consent will not be defeated by a minor deviation that is “immaterial under the circumstances of the case”. A deviation is minor if a reasonable person in similar circumstances would have proceeded with the medical treatment even if informed of the foreseeable risk.

The Court found the Board did not discuss what a reasonable person would have done or the consequences of surgery as opposed to foregoing surgery.

The case is important in that begins to circumscribe the limits of the presumption of regularity while demonstrating a failure to provide adequate reasons or bases for a decision. It also fleshes out the concept of a minor deviation from in the informed consent context.

Decided by Chief Judge Kasold, Judges Hagel and Moorman.