Hatfield: Informed Consent and CUE

Hatfield v. McDonough, Case Number 21-5125, decided March 28, 2023 involves a claim for an earlier effective date based on CUE in a prior Board hearing.

This is a continuation of a precedential decision where in “Hatfield I, we held that the reasonable person exception to informed consent–which allows defects in informed consent that are minor and immaterial if a reasonable person in similar circumstances would have proceeded with treatment even if informed of a foreseeable risk–does not apply when no consent is obtained at all.”  Id. at *1.

After the decision, the veteran argued for CUE in a prior Board denial and that the result should be an earlier effective date.  The Court decided:

In a nutshell, the language of the statute then–as today–does not contain any reference to informed consent, and the legislative history of the statute reinforces the conclusion that the failure to obtain a patient's informed consent did not support compensation under the provision. Moreover, the regulation implementing section 351 underscores the point that a lack of informed consent did not undebatably provide a basis for compensation. Indeed, the concept of informed consent forming a basis upon which compensation was warranted does not appear in relevant regulations until the mid-1990s. Finally, we are not persuaded by appellant's argument that the common law of medical malpractice supports a finding that the only reasonable interpretation of section 351 in 1980 was that the statute provided for an award of compensation where VA did not obtain a patient's informed consent. The bottom line is that appellant fails to show that the Board's June 2021 decision finding no CUE in the October 1980 Board decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Therefore, we will affirm.”

Id. at 2-3.

The Court further explained:

“In sum, and leaving aside for the moment VA's implementing regulations, to which we will turn next, appellant's CUE allegations fail to establish that the only reasonable interpretation of section 351 in 1980 included a failure to obtain a patient's informed consent before treatment or other care as a ground for the award of compensation. It certainly is not undebatable that informed consent was a ground for section 351 compensation under the law in effect at the time of the 1980 Board decision as is required to establish CUE.96 And the 2021 Board's conclusion that appellant's allegation of error did not constitute CUE is not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Id. at 18.

The Court summarized by stating:

“Section 351 in 1980 did not contain any reference to informed consent, nor did it

incorporate the informed-consent provisions found at section 4131 and § 17.34. Appellant fails to point to any authority indicating that a failure to obtain a patient's informed consent supported an award of compensation under section 351 in October 1980. She points to nothing to show that it is undebatable that a failure to obtain informed consent was a basis upon which the October 1980 Board could award compensation under section 351. Therefore, the Board decision on appeal finding no CUE in the October 1980 decision was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.”

Id. at page 23-24.

Decision by Judge Allen and joined in by Judges Meredith and Falvey.

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