Between the Scalpel and the Lie: ComparingTheories of Physician Accountability forMisrepresentations of Experience andCompetence

I. IntroductionAs science and technology catapult forward, American consumers have more and more options to take advantage of new medical advances.1 The rising number of surgeries performed each year is partially because of a higher availability of elective surgeries as opposed to surgeries performed to save a patient's life.2 Furthermore, studies show that doctors perform many elective, but still risky, surgeries for questionable or inappropriate reasons.3 Doctors also use magazine and television advertisements to lure patients into undergoing liposuction and other purely aesthetic surgeries.4 Because anyone with a medical license can perform cosmetic surgery, tragedies are not uncommon.5Medical associations cannot adequately police all doctors; some responsibility lies with the patients to protect themselves.6 Dr. Lawrence Horowitz, former director of the U.S. Senate Subcommittee on Health, stated, "At its best, American medicine is the finest in the world. But you can't get the best by chance-you have to work at it. And often, the choices you make are more important in determining the outcome than the nature of the disease itself."7 An informed medical consumer must ask questions to make informed decisions.8After deciding to have surgery, a medical consumer must also make an informed decision in choosing a surgeon.9 all surgeons are not created equal.10 One of the most important inquiries that a potential patient can make involves the surgeon's credentials and experience level." Realizing the importance of an informed patient, several state legislatures have created databases allowing consumers to obtain information about a potential doctor or surgeon with a single phone call.12 The creation of such statutes demonstrates widespread public acknowledgement that informed patients make a difference in combating medical disasters.13Despite the increased media coverage and the initiative in state legislatures to encourage informed decision-making by medical consumers, the legal system has thus far been unwilling to respect the importance of such behavior.14 Consider the plight of Cecil Deville, a thirty-year-old man who recently suffered a heart attack. After recovering from the heart attack, Mr. Deville meets with Dr. Evil to discuss his diagnosis. Dr. Evil informs Mr. Deville that his life depends upon receiving bypass surgery. Mr. Deville has read several articles about the importance of being an informed medical consumer and asks Dr. Evil how many times he has performed such a procedure and what his success rate has been. Dr. Evil explains to Mr. Deville all of the possible complications of the surgery and claims that he has performed bypass surgery over 100 times in the last year with a success rate of ninety-seven percent. After performing research on the Internet, Mr. Deville finds Dr. Evil's experience and success rate to be an acceptable risk. Mr. Deville consents to the surgery.Unfortunately, Mr. Deville's luck is not good, and he develops complications from a blood clot following the surgery. As a result, Mr. Deville is confined to a wheelchair for the remainder of his life. During depositions for his medical malpractice lawsuit, Mr. Deville learns that Dr. Evil has only performed bypass surgery twenty times in the previous year and that his success rate was only eighty-five percent. This Note considers the legal actions available to Mr. Deville in light of Dr. Evil's misrepresentation of his qualifications to perform the bypass surgery.Three theories would allow the patient in this fact scenario a cause of action: the informed consent doctrine, the deceit-based tort of fraud, and some states' consumer protection statutes.15 State courts differ as to which theory is most appropriate. The New Jersey Supreme Court denied a plaintiffs fraud claim stating that a more appropriate basis for legal action would be the informed consent doctrine.16 But the Pennsylvania Supreme Court refused to allow an informed consent action against a physician misrepresenting his credentials, opting instead to endorse a fraud action. …