Informed Consent (and the Red Sox)

We need to talk about Bobby Jenks. Even if you’re a die-hard Red Sox fan you may not recognize the name. Bobby only pitched 15 innings for the 2011 Red Sox, otherwise known as the most disappointing team in Red Sox history.

In the winter before the 2011 season, though, Jenks was a much-ballyhooed free agent signing – a $6 million bullpen arm. Bobby Jenks came to the Red Sox as a two-time All Star with 173 career saves with the Chicago White Sox. The man threw hard – very hard. 102 miles per hour, in fact. 

Bobby Jenks at his best

His Red Sox career never got off the ground, a blood clot and a sore back sidelined him for much of the first few months of the season. Then in June he slipped on the mound and wrenched his back so severely he was unable to return to action despite months of therapy and rehab.

His career on the line and in constant, almost debilitating pain, Jenks opted for spinal decompression surgery at Mass General in December 2011. He says the surgeon told him the procedure “would be quick and easy and he would be ready for spring training.” The hospital says he was told only that “the surgery offered the best chance for him to return to professional baseball.”

Regardless, Jenks had the surgery at Mass General, the surgeon was a nationally recognized orthopedic spinal specialist. The surgery lasted three hours, Jenks recovered, walked out of the hospital not long after the procedure. All seemed fine, even his pain was better.

Two weeks later, however, according to the Boston Globe, “Jenks felt what he said seemed like a cup of water spurt from the surgical wound in his back at home in Mesa, Ariz. Then he had an excruciating headache. It turned out that he had suffered a tear in the dural sac that covers the spine and leaked spinal fluid.”

Jenks and his agent say they, per Mass General’s discharge orders, immediately tried to contact his surgeon but despite multiple calls and several messages never got an answer. In desperation, they claim, they went to surgeon in Arizona who took one look at his back and had Jenks immediately admitted to the hospital. He operated shortly after and repaired the dural tear. In recovery, the new surgeon told Jenks that his original surgery ‘had never been completed’ – they had left a ‘bony spicule’ that caused at least two tears. His spine was also infected. 

The tear was repaired but Jenks was constantly in pain again and was bed ridden for seven weeks. Once on his feet he tried, gingerly, to pitch through the pain but simply could not. He retired from baseball in June 2012, almost a year from the day of his injury.

Jenks sued his original surgeon and Mass General. Mass General denied his claims, of course, and the pre-trial process started. 

Just a regular medical malpractice claim except with a famous surgeon and a once famous athlete. 

Except, it wasn’t.

As the case drew closer to trial, Jenks discovered that his surgeon was performing another, highly complex, surgery in an adjoining operating room at exactly the same time he was operating on him. As a matter of fact, the other operation started before Jenks’ three-hour procedure and went on for almost another five. 

There were also complications in the other surgery and that patient was also suing Jenks’ doctor.

Before we go further, note this: surgeons all over the country perform surgeries that overlap, sometimes they’re scheduled that way to take advantage of resources, sometimes, in trauma rooms, because a specialist is urgently needed and there’s only one to go around.

This, Jenks discovered, was not an ‘overlap’, it was two surgeries at once. Furthermore, no one – not the hospital, not the surgeon, not a nurse or administrator – had informed either patient that they were being operated on at the same time. 

Jenks was already suing for malpractice, he added ‘lack of informed consent’ to the suit. It turned out that it was Mass General’s practice at the time to not inform patients of ‘overlapping’ procedures by the same surgeon.

According to a prominent patients’ rights advocate at Boston University, “It’s a no-brainer that a surgeon should inform a patient that the doctor intends to operate on that person and another patient in the same time frame.” 

And this, the reason for today’s post, a pitch perfect description of what informed consent is, by that advocate, George J. Annas:

“For the doctor to give informed consent, you have to tell the patient anything that’s material about their surgery, and ‘material’ is defined as what might cause a patient to change his or her mind, to say, ‘I don’t want surgery.’ I think it’s a fact that most patients would be uncomfortable with their doctor doing two operations simultaneously.”

Annas is the director of the Center for Health Law, Ethics & Human Rights at BU’s School of Public Health.

While still claiming that Jenks’ initial surgery was successfully completed and he ‘received superb care’ the case settled in May. Bobby Jenks received $5.1 million, about a million less than his last baseball salary.