In the comments to “Can the Octuplets Sue for Medical Malpractice,” B. Barton asks:

Numerous sources have reported that Ms. Suleman wanted these [6] remaining embryos transferred [2 of which split into twins]. Where does liability lie if that’s true?

Good question. Since there’s little doubt that it’s a breach in the standard of care for a physician to transfer 6 embryos (monozygotic twinning is a known risk of IVF, so the doctor can’t claim surprise at it), we can rephrase this question as: can a patient consent to a procedure that would ordinarily be medical malpractice?

First, a little background. There are two claims which sometimes get lumped together as “medical malpractice.” One is the “negligence” claim most people think of, in which a doctor breached the standard of care by either not doing something they should have or doing something they should not have. The other is the “informed consent” claim, explained by the New Jersey Supreme Court as arising from “the duty of a physician to disclose to a patient information that will enable him to evaluate knowledgeably the options available and the risks attendant upon each before subjecting that patient to a course of treatment.” Perna v. Pirozzi, 92 N.J. 446 (1983).

Every day, thousands of patients consent to unnecessary, experimental or risky procedures. So long as the patient was properly informed of the risks, benefits and alternatives, and the procedure was properly performed, the physician will not be liable for adverse consequences.

But this situation is far outside the realm of normal medical practice — so much so that the Medical Board of California has opened an investigation into it. There’s no shortage of fertility doctors with the opinion that:

“In order for IVF to cause octuplets, a doctor would have to place eight or more embryos back, which is way beyond the guidelines.”

And many agree with Hickman to put eight embryos back would be medically unethical. Simply put, having multiples is a huge risk.

“You can have all sorts of problems with the brain forming properly. You can be left with cerebral palsy, injuries, blindness, problems with the lungs working,” he said.

As such, this case is not analogous to situations where a patient chooses among reasonable options with differing risks and benefits, like a cancer patient electing to have surgery over chemotherapy. Instead, it’s a patient requesting the physician breach the standard of care.

For obvious reasons, there aren’t too many court opinions ruling on such a case (most plaintiff’s lawyers would reject such cases as unwinnable, regardless of the law, given juror sentiment like B. Barton’s). But there’s reason to think a court would permit either the mother or the octuplets to bring such a claim, despite the mother’s “consent” for the procedure.

While patients can assume various risks of a procedure, a patient cannot assume the risk their doctor will commit malpractice. The reasoning is simple:

In the context of medical malpractice, the superior knowledge of the doctor with his expertise in medical matters and the generally limited ability of the patient to ascertain the existence of certain risks and dangers that inhere in certain medical treatments, negates the critical elements of the [assumption of risk] defense, i.e., knowledge and appreciation of the risk. Thus, save for exceptional circumstances, a patient cannot assume the risk of negligent treatment.

Morrison v. MacNamara, 407 A.2d 555, 567-568 (D.C. Ct. App. 1979). Thus, even if a patient appears to have “understood” and “assumed” that a procedure was generally risky, there still may be a claim for medical malpractice, as the law recognizes the superior knowledge of the doctor and does not expect patients to have the same technical understanding — including an understanding of where the medical community draws the line — as physicians.

Then there’s the informed consent claim. As shown in the interview you referenced, it doesn’t seem Nadia Suleman fully appreciated the risks of the procedure; she seemed to revel in them.

In some states, so long as the physician provided the same information as would be provided by a “reasonably prudent medical practitioner acting under the same or similar circumstances,” then there’s no claim for a lack of informed consent. Perna, supra. Again, however, we have to realize how far outside the bounds of normal medicine we are, and I don’t doubt that many fertility doctors believe that no “reasonably prudent medical practitioner” would ever counsel a 33 year old woman with a history of successful IVF treatment to transfer 6 embryos.

In other states, the question is not what the patient themselves would have done with appropriate information, but what “a prudent person in the patient’s position would have decided if suitably informed of all perils bearing significance.” Perna, supra. The primary purpose of such a rule is to prevent disgruntled patients from claiming, after the fact, that they would have chosen a different option if the doctor had disclosed all the risks, but the door might swing both ways: the jury might be asked to determine what a prudent person in the patient’s position would have decided if given all the appropriate facts, and find that a “prudent person” would have rejected the procedure.

Finally, it bears repeating what we’re talking about here: the theoretical ability of the mother or the children to bring a claim for medical malpractice under the law. There’s a high likelihood an actual jury would reject all of these claims out of hand.

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