Rosit: surgical choices and informed consent

Facts and context

After Marcelina Rosit fractured her jaw, Dr. Dario treated the injury using modified stainless-steel screws. During the procedure, a screw struck a tooth. Marcelina developed pain, restricted mouth movement, and continuing problems until corrective treatment was performed. Evidence showed that smaller titanium screws were available elsewhere and would have been an alternative for fixing the fracture.

Dr. Dario had not explained that alternative. He said he assumed Marcelina could not afford the more expensive material. The case therefore involved two related but distinct questions: whether the intraoperative tooth injury supported an inference of negligent technique, and whether withholding a material treatment option based on an assumption about cost denied the patient an informed choice.

Issue

Did the circumstances of the screw striking the tooth support res ipsa loquitur, and was the availability of smaller titanium screws information material to the patient’s decision even if the physician believed she could not afford them?

Ruling and doctrine

The Court held the surgeon liable. The tooth injury during fixation, in circumstances under the surgeon’s control and not caused by the patient, supported an inference of negligence. Separately, the Court found bad faith in withholding the available titanium-screw option merely because the physician assumed the patient lacked the means to pay.

The case links competent operative care with informed choice without making the most expensive device mandatory in every case. The material point was that the patient, rather than the physician acting on an undisclosed financial assumption, was entitled to consider the medically relevant alternative.

Practice implications

Parao Law practice guidance

For physicians

• Disclose reasonable material alternatives, including an appropriate option available elsewhere when relevant to the decision.
• Ask about financial constraints rather than assume that the patient cannot afford an option.
• Explain how differences in materials or approach affect the choice, including relevant risks and limitations.
• Record the options discussed and the patient’s decision. A discussion of cost should not replace a discussion of clinical suitability.
• Document the materials actually used and significant operative decisions separately from the consent discussion.

For lawyers

• Identify the omitted alternative, its availability, the doctor’s knowledge of it, and why it mattered to the patient’s choice.
• Collect consent discussions, cost communications, operative records, and corrective-treatment evidence.
• Analyze the surgical injury and nondisclosure as distinct allegations and identify the proof supporting each.
• Link bad faith and any damages claim to the conduct found, rather than infer them from an unfavorable result alone.

Limits of the ruling

The ruling does not require offering every imaginable intervention or turn a patient’s financial limits into a negligence finding. It concerns the material alternative and surgical conduct established in this record. The choice of implants in present practice requires contemporary clinical assessment, not a digest of this case alone.