The Supreme Court outlines the scope of informed consent and clinical prudence in elective surgeries Doctrinal commentary — Mr. Gilberto Objío Subero
- Gilberto Objío Subero
- Aug 21
- 6 min read
The SCJ‑PS‑25‑1313 ruling of June 30, 2025 marks a turning point in Dominican jurisprudence on medical civil liability : it consolidates informed consent as a fundamental right and, at the same time, reaffirms that its signature does not exonerate imprudent clinical decisions, especially when it comes to operating on a severely hypertensive patient in an elective context . Furthermore, it puts the house in order from the inside in procedural matters: it recalls the scope of the devolutive effect of the appeal , the standard of control in cassation (only legal defects and "denaturation" of evidence) and rigorously applies indivisibility and the defect in the recursive processing.
The children of Ynocencio Fernández Silverio sued Centro Médico Bournigal, SAS and Drs. Mohamad Aoun (surgeon/urologist) and Ludovino Núñez Encarnación (anesthesiologist) for the death of the patient during an elective procedure while suffering from severe arterial hypertension accompanied by staghorn calculi and chronic pyelonephritis . The first instance rejected the claim; the appellate court reversed and jointly ordered the defendants to pay RD$5,000,000 (RD$2.5 million for each child) plus 7% annually from 12-28-2023. In cassation , the First Chamber rejected the physicians' main appeal, ruled that the Bournigal Center was defective for not defending itself in the appeal of the former, and declared the Bournigal Center's alternative appeal inadmissible due to indivisible status for not summoning all necessary parties.
2) Informed consent: a fundamental right, not a shield of impunity
I agree with—and welcome—the Court's inclusion of informed consent in its constitutional hierarchy : it is an expression of the rights to personal liberty , integrity , and conscience , protecting the patient's self-control over their body. Therefore, it requires sufficient information about the diagnosis , alternatives , risks and benefits , and the balance between the natural progression of the disease and the risks of the procedure. The ruling also defines it as a "prerequisite and essential element of the lex artis " : without valid consent, there is no legitimate medical act.
Now, the decisive contribution of the ruling is to clear up a practical confusion: signing a consent form does not exempt from civil liability . The document does not replace the permanent duty to inform or prudent clinical judgment about whether or not to operate at that time. "The fact that the patient has consented... should not be considered as an exculpation "; if there is harm and a causal link with negligent conduct , liability arises. This is, in my opinion, the reasoning that will set the standard.
3) Caution in elective surgeries: severe hypertension and anesthetic risk
The factual core that the appeal court assessed—and that the SCJ does not re-evaluate because it belongs to the sovereign domain of the lower court judges—was that the patient had persistent blood pressure levels (BP records 200/100 , 190/100 and 160/100 mmHg) and that the procedure was elective , not emergency . Faced with this, the prudent decision was to postpone surgery until reasonable stabilization was achieved . The SCJ validates that the appeal court gave greater credibility to the cardiology expert report (Dr. Máximo R. Cruz Monsanto), which warned of the increased anesthetic risk in hypertensive patients and the relevance of the interaction with parenteral ACE inhibitors ( enalaprilat ) before anesthesia—which can precipitate intraoperative hypotension and fatal outcomes—over the anesthesiology expert report , which considered it feasible to operate with a diastolic pressure <110 mmHg. This balance of evidence, the Court insists, is not reviewable in cassation unless it is distorted , which was not proven here.
The message for practice is clear: in postponable procedures , the threshold of prudence requires optimizing the condition of the severely hypertensive patient before subjecting them to anesthetic-surgical stress . If surgery is nevertheless decided upon, the treating team's arguments and documentation must be particularly robust ; mere consent does not validate a poorly chosen surgical opportunity .
4) Standard of responsibility and nature of the link
The SCJ reiterates its doctrine: malpractice "in principle, gives rise to contractual liability" because a service contract is concluded between patient and physician, the defective execution of which results in non-compliance. To establish malpractice, the plaintiff must prove reckless or negligent conduct contrary to the lex artis , damage , and causality , ruling out chance, the victim's fault, or consequences inherent to the treatment.
Regarding the issue of solidarity with the medical center , the Supreme Court did not address the merits of the hospital's cassation appeals case for procedural reasons (inadmissibility due to indivisibility and failure to notify all parties). This procedural closure advises greater diligence on the part of health facilities when discussing their organizational relationship with the participating physicians.
5) Procedural lessons: appeal, cassation, defect and indivisibility
a) Devolutive effect of the appeal. The Court validates that the appellate court, having been seized of a full-scope appeal , reexamined the facts and law and even produced expert evidence to rule anew "as if it had never been known," without violating the duty to rule on the confirmation/revocation/modification: it did so, and provided reasons.
b) Appeal threshold. The alleged grounds (retraction, erroneous assessment, distortion of the naturalization process) were treated as procedural violations with presumed appealable interest under Law No. 2-23 , but the SCJ recalled that the appraisal of evidence is sovereign and only yields in the event of manifest distortion of the naturalization process , which did not occur here .
c) Defect. In the doctors' appeal, the Bournigal Center was duly served with the notice , yet it did not file a defense brief ; the SCJ ruled on the defect and expelled its briefs, a clear warning about the strictness of the deadlines and formalities of Law 2-23 .
d) Indivisibility. In the Bournigal Center appeal , the SCJ declared the cassation appeal inadmissible for not summoning all parties to an indivisible litigation , reaffirming that if a necessary party is missing, the appeal is dismissed by all parties , except for strictly personal reasons—which protects due process and avoids contradictory rulings.
6) Systemic importance of the ruling
A culture of real, not ritual, consent. Consent ceases to be a form and becomes a communicative process that coexists with the duty to timely indicate the medical procedure. The ruling offers an antidote to " paper medicine ": a signature is not enough; prudent clinical judgment is important .
Risk management in hypertension. The reasoning validates known good practices: postponing elective surgeries in severely hypertensive patients and considering drug interactions (e.g., ACE inhibitors and anesthesia). This does not "medicalize" the law; rather, it aligns responsibility with verifiable clinical standards.
Hospital governance. Although the client-preposé fund was dismissed due to inadmissibility, the outcome reaffirms the joint liability of hospitals and physicians when organizational decisions fail to address foreseeable risks. Document compliance, pre-surgical committees , and the traceability of the decision to operate gain central importance.
Recursive Discipline. The judgment is a manual on how to litigate under Law 2-23 : summon all parties in indivisible cases, respond in a timely manner, and understand that in cassation, the evidence is not re-judged, but rather the applicable law and the logic of the reasoning .
7) Practical recommendations (for doctors, hospitals and litigants)
Mandatory presurgical checklist for high-risk electives: verification of blood pressure levels by series, ASA risk , drugs (ACE inhibitors/ARBs), and interaction-free window. Document the reasonableness of postponing versus intervening.
Personalized consent forms , not templates: Include conservative management options and the incremental risk of specific comorbidities; record questions and answers.
Governance : Institutionalize surgical eligibility committees for cases with severe hypertension or other red flags; record clinical deliberation .
Procedural strategy : on appeal, request focused expert reports ; on cassation, address flaws in motivation and applicable law ; never forget to summon everyone to indivisible cases and respond within the deadline.
8) Ten maxims left by the sentence
Informed consent is a necessary, but not sufficient, condition. Its signature does not shield reckless decisions.
The lex artis includes the "when" to operate. Timing is part of the standard of care.
Elective vs. urgent. If it can reasonably be postponed, postpone it until risk is optimized.
Severe hypertension + anesthesia = increased risk. Consider interaction with ACE inhibitors and the need for vasopressors.
The appellate judge rules on the evidence. His assessment is supreme; the cassation court does not reevaluate the facts unless they are distorted.
Liability for malpractice is, in principle, contractual. It requires proof of negligent act, damage, and causality.
Consent alone does not exonerate. The duty to inform and exercise caution persists before, during, and after.
Law 2-23 demands rigor. He who does not respond, falls into default ; he who does not summon everyone, fails by indivisibility .
Hospital-physician solidarity demands governance. The organization must prevent unjustified high-risk decisions.
To motivate is to win. Sentences with complete and coherent motivation survive the cassation process.
As a litigator and academic, I read this decision as a call to clinical and procedural excellence . To doctors: don't operate based on documentary inertia ; to hospitals: structure safety barriers ; and to lawyers: litigate methodically and with respect for the recursive technique . It is, in short, a ruling that humanizes informed consent and prioritizes prudence, while strengthening the quality of the process under Law 2-23. And this triple impact—clinical, organizational, and procedural—is what will make it endure.
Reference: Supreme Court of Justice, First Chamber, SCJ‑PS‑25‑1313 (06‑30‑2025)
Gilberto Objio
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