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The following case has had some citations, etc. deleted for easier reading.
COBBS v. GRANT
SUPREME COURT OF CALIFORNIA
8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (Cal. 1972)
I.
This medical malpractice case involves two issues:
first, whether there was sufficient evidence of negligence in the performing of
surgery to sustain a jury verdict for plaintiff; second, whether, under
plaintiff's alternative theory, the instructions to the jury adequately set
forth the nature of a medical doctor's duty to obtain the informed consent
of a patient before undertaking treatment.
We conclude there was insufficient evidence to support the
jury's verdict under the theory that defendant was negligent during the
operation. Since there was a general verdict and we are unable to ascertain
upon which of the two concepts the jury relied, we must reverse the judgment
and remand for a new trial. To assist the trial court upon remand we analyze
the doctor's duty to obtain the patient's informed consent and suggest principles
for guidance in drafting new instructions on this question.
Plaintiff was admitted to the hospital in August 1964 for
treatment of a duodenal ulcer. He was given a series of tests to ascertain the
severity of his condition and, though administered medication to ease his
discomfort, he continued to complain of lower abdominal pain and nausea. His
family physician, Dr. Jerome Sands, concluding that surgery was indicated,
discussed prospective surgery with plaintiff and advised him in general terms
of the risks of undergoing a general anesthetic. Dr. Sands called in defendant,
Dr. Dudley F. P. Grant, a surgeon, who after examining plaintiff, agreed with
Dr. Sands that plaintiff had an intractable peptic duodenal ulcer and that
surgery was indicated. Although Dr. Grant explained the nature of the operation
to plaintiff, he did not discuss any of the inherent risks of the surgery.
A two-hour operation was performed the next day, in the
course of which the presence of a small ulcer was confirmed. Following the
surgery the ulcer disappeared. Plaintiff's recovery appeared to be uneventful,
and he was permitted to go home eight days later. However, the day after he
returned home, plaintiff began to experience intense pain in his abdomen. He
immediately called Dr. Sands who advised him to return to the hospital. Two
hours after his readmission plaintiff went into shock and emergency surgery was
performed. It was discovered plaintiff was bleeding internally as a result of a
severed artery at the hilum of his spleen. Because of the seriousness of the
hemorrhaging and since the spleen of an adult may be removed without adverse
effects, defendant decided to remove the spleen. Injuries to the spleen that
compel a subsequent operation are a risk inherent in the type of surgery
performed on plaintiff and occur in approximately 5 percent of such operations.
After removal of his spleen, plaintiff recuperated for two
weeks in the hospital. A month after discharge he was readmitted because of
sharp pains in his stomach. X-rays disclosed plaintiff was developing a gastric
ulcer. The evolution of a new ulcer is another risk inherent in surgery
performed to relieve a duodenal ulcer. Dr. Sands initially decided to attempt
to treat this nascent gastric ulcer with antacids and a strict diet. However,
some four months later plaintiff was again hospitalized when the gastric ulcer
continued to deteriorate and he experienced severe pain. When plaintiff began
to vomit blood the defendant and Dr. Sands concluded that a third operation was
indicated: a gastrectomy with removal of 50 percent of plaintiff's stomach to
reduce its acid-producing capacity. Some time after the surgery, plaintiff was
discharged, but subsequently had to be hospitalized yet again when he began to
bleed internally due to the premature absorption of a suture, another inherent
risk of surgery. After plaintiff was hospitalized, the bleeding began to abate
and a week later he was finally discharged.
Plaintiff brought this malpractice suit against his surgeon,
Dr. Grant. The action was consolidated for trial with a similar action against
the hospital. The jury returned a general verdict against the hospital in the
amount of $45,000. This judgment has been satisfied. The jury also returned a
general verdict against defendant Grant in the amount of $23,800. He appeals.
The jury could have found for plaintiff either by
determining that defendant negligently performed the operation, or on the
theory that defendant's failure to disclose the inherent risks of the initial
surgery vitiated plaintiff's consent to operate. Defendant attacks both
possible grounds of the verdict. He contends, first, there was insufficient
evidence to sustain a verdict of negligence, and, second, the court committed
prejudicial error in its instruction to the jury on the issue of informed
consent.
Defendant's attack on the sufficiency of the evidence
relates to the state of the medical testimony. Three experts testified at
the trial: defendant, Dr. Sands, and defendant's expert, Dr. Yates. No expert
witness was produced by plaintiff. The three experts were consistent in the
opinion that the decision to operate as well as the actual procedure evidenced
due care. Thus defendant insists that if experts unanimously opine that the
defendant exercised due care, the jury may not substitute its judgment and find
negligence.
Plaintiff contends the jury could reach a conclusion
contrary to that of the experts because the decision to operate on his duodenal
ulcer comes under the recognized exception to the need for medical testimony:
the facts present a medical question resolvable by common knowledge. Where a
shoulder is injured in an appendectomy, or a clamp is left in the abdomen,
expert testimony is not required since the jury is capable of appreciating and
evaluating the significance of such events.
[This is the res ipsa loquitur argument for not needing expert
testimony to present a case. Island
Court]
However, when a doctor relates the facts he has relied upon
in support of his decision to operate, and where the facts are not commonly
susceptible of comprehension by a lay juror, medical expert opinion is
necessary to enable the trier of fact to determine if the circumstances
indicated a need for surgery.
The record before us requires this case to be governed by
the general rule. An X-ray examination of plaintiffs' stomach disclosed
"There is extreme irritability of the duodenal bulb within which on two
films is a faint collection of barium [swallowed by plaintiff for the purposes
of this test] consistent with a very tiny active duodenal ulcer." Since it
was a "very tiny" ulcer, and since conversely, the ulcer was
"active" and had produced "extreme irritability," only an
expert would be capable of understanding whether surgery was immediately
necessary for plaintiff's well-being. Similarly there was uncontradicted
testimony that although plaintiff had ceased to experience pain rhythmically,
continuous pain indicated the ulcer was penetrating the wall of the duodenum.
If all five layers of the duodenum are penetrated a patient can bleed profusely
and emergency surgery is essential to save his life. Again only an expert can
appreciate the significance of the constant pain and whether surgery was
indicated therefor. Finally there was evidence plaintiff's stools were dark and
tarry. While the lay mind is unable to draw any conclusion from such evidence,
to a doctor this is additional confirmation of a penetrating ulcer. Under such
circumstances the common knowledge exception to the need for expert medical
testimony is not applicable.
A fortiori, plaintiff's theory of negligence in the
performance of the surgery is not sustainable under the common knowledge
exception when, under these circumstances, there is uncontradicted expert
testimony the operation had been performed with due care. Even with the
exercise of due care the spleen may be injured during operations similar to
that performed on plaintiff approximately 5 percent of the time, due to the
need to mechanically retract the spleen to obtain access to the site of the
operation. "The fact that a particular injury suffered by a patient as the
result of an operation is something that rarely occurs does not in itself prove
that the injury was probably caused by the negligence of those in charge of the
operation." (Siverson v. Weber (1962) 57 Cal. 2d 834, 839 [22 Cal. Rptr.
337, 372 P.2d 97].)
In any event, plaintiff contends, defendant made statements
from which the jury could conclude defendant had admitted negligence. Defendant
is a medical expert; if he in fact made inculpatory declarations of negligence,
such admissions could be deemed the expert testimony necessary to sustain the
verdict. However, the evidence pointed out by plaintiff in support of this
theory does not constitute an admission of negligence.
Plaintiff first emphasizes testimony by defendant that
surgery is not necessary for most ulcers unless there are complications.
Plaintiff argues that from such testimony, in light of plaintiff's medical
history, the jury could conclude there was no indication of a need for surgery.
This is merely a restatement of the common knowledge argument which we have
rejected above. Defendant's statement that surgery is not usually warranted is
not an admission of a negligent decision to operate when all the medical experts
testified that in plaintiff's case surgery was indicated.
Plaintiff also urges that although defendant testified he
visually inspected the spleen before suturing, the jury could infer from the
subsequent hemorrhaging that his inspection was not made with due care. The
bleeding was attributable to a small tear at the hilum of the spleen.
Defendant and his expert witnesses gave uncontradicted
testimony that injuries not apparent during an operation may subsequently
become manifest. In light of this testimony and the additional uncontradicted
testimony that the surgery was performed with due care, it would have been
improper speculation for the jury to infer the injury should have been apparent
to a careful surgeon
Finally, plaintiff relies on his own testimony that
defendant said to plaintiff, "He [i.e., defendant] blamed himself for me
being back in there [the hospital for a second time]." Defendant denied
having made such a remark. However, even if the jury had chosen to believe
plaintiff, defendant's statement signifies compassion, or at most, a feeling of
remorse, for plaintiff's ordeal. Since a medical doctor is not an insurer of
result, such an equivocal admission does not constitute a concession that he
lacked or failed to use the reasonable degree of learning and skill ordinarily
possessed by other members of the profession in good standing in the community,
or that he failed to exercise due care.
We are convinced there is not substantial evidence to
support a jury verdict on the issue of defendant's liability on the theory that
he was negligent either when he decided to operate or in performing the
surgery.
II.
[This section addresses the informed consent issue and
distinguishes ‘negligence’ from ‘battery’ in informed consent cases. Island
Court]
Since the question of informed consent is likely to arise on
retrial, we address ourselves to that issue. (Code Civ. Proc., § 43.) In giving
its instruction the trial court relied upon Berkey v. Anderson (1969) 1 Cal.
App. 3d 790, 803 [82 Cal. Rptr. 67], a case in which it was held that if the
defendant failed to make a sufficient disclosure of the risks inherent in the
operation, he was guilty of a "technical battery" (also see Pedesky
v. Bleiberg (1967) 251 Cal. App. 2d 119, 123 [59 Cal. Rptr. 294]; Hundley v.
St. Francis Hospital (1958) 161 Cal. App. 2d 800, 802 [327 P.2d 131]). While a
battery instruction may have been warranted under the facts alleged in Berkey,
in the case before us the instruction should have been framed in terms of
negligence.
Where a doctor obtains consent of the patient to perform
one type of treatment and subsequently performs a substantially different
treatment for which consent was not obtained, there is a clear case of battery.
(Berkey v. Anderson (1969) supra, 1 Cal. App. 3d 790 (allegation of consent to
permit doctor to perform a procedure no more complicated than the
electromyograms plaintiff had previously undergone, when the actual procedure
was a myelogram involving a spinal puncture); Bang v. Charles T. Miller
Hosp. (1958) 251 Minn. 427 [88 N.W.2d 186] (plaintiff consented to a
prostate resection when uninformed that this procedure involved tying off his
sperm ducts); Corn v. French (1955) 71 Nev. 280 [289 P.2d 173] (patient
consented to exploratory surgery; doctor performed a mastectomy); Zoterell v.
Repp (1915) 187 Mich. 319 [153 N.W. 692] (consent given for a hernia operation
during which doctor also removed both ovaries).)
[35] However, when an undisclosed potential complication
results, the occurrence of which was not an integral part of the treatment
procedure but merely a known risk, the courts are divided on the issue of
whether this should be deemed to be a battery or negligence. (Gray v. Grunnagle
(1966) 423 Pa. 144 [223 A.2d 663] (failure to warn a patient a spinal operation
involved an inherent risk of permanent paralysis; battery); Belcher v. Carter
(1967) 13 Ohio App.2d 113 [42 Ohio Ops.2d 218, 234 N.E.2d 311] (failure to warn
of danger of radiation burns; battery); Nolan v. Kechijian (1949) 75 R.I. 165 [64
A.2d 866] (operation to strengthen ligaments of spleen when spleen was removed;
trespass to the body and negligence); Natanson v. Kline (1960) 186 Kan. 393
[350 P.2d 1093] (radiation treatment produced a severe burn; semble battery or
negligence); Natanson v. Kline (1960) 187 Kan. 186 [354 P.2d 670] (rehearing of
previous case; negligence); Mitchell v. Robinson (Mo. 1960) 334 S.W.2d 11 [79
A.L.R.2d 1017] (vertebrae broken during insulin shock treatment; negligence).)
California authorities have favored a negligence theory.
Although this is a close question, either prong of which is
supportable by authority, the trend appears to be towards categorizing
failure to obtain informed consent as negligence.
That this result now appears with growing frequency is of
more than academic interest; it reflects an appreciation of the several
significant consequences of favoring negligence over a battery theory. As will
be discussed infra, most jurisdictions have permitted a doctor in an informed
consent action to interpose a defense that the disclosure he omitted to make
was not required within his medical community.
However, expert opinion as to community standard is not
required in a battery count, in which the patient must merely prove failure to
give informed consent and a mere touching absent consent. Moreover a doctor
could be held liable for punitive damages under a battery count, and if held
liable for the intentional tort of battery he might not be covered by his
malpractice insurance. (Comment, Informed Consent in Medical Malpractice
(1967) 55 Cal.L.Rev. 1396.) Additionally, in some jurisdictions the patient has
a longer statute of limitations if he sues in negligence.
We agree with the majority trend. The battery theory should
be reserved for those circumstances when a doctor performs an operation to
which the patient has not consented. When the patient gives permission to
perform one type of treatment and the doctor performs another, the requisite
element of deliberate intent to deviate from the consent given is present.
However, when the patient consents to certain treatment and the doctor performs
that treatment but an undisclosed inherent complication with a low probability
occurs, no intentional deviation from the consent given appears; rather, the
doctor in obtaining consent may have failed to meet his due care duty to
disclose pertinent information. In that situation the action should be pleaded
in negligence.
The facts of this case constitute a classic illustration of
an action that sounds in negligence. Defendant performed the identical
operation to which plaintiff had consented. The spleen injury, development of
the gastric ulcer, gastrectomy and internal bleeding as a result of the
premature absorption of a suture, were all links in a chain of low probability
events inherent in the initial operation.
III.
[Court applies ‘negligence’ theory to this informed consent
issue. Island Court]
Since this is an appropriate case for the application of a
negligence theory, it remains for us to determine if the standard of care
described in the jury instruction on this subject properly delineates
defendant's duty to inform plaintiff of the inherent risks of the surgery. In
pertinent part, the court gave the following instruction: "A physician's
duty to disclose is not governed by the standard practice in the community;
rather it is a duty imposed by law. A physician violates his duty to his
patient and subjects himself to liability if he withholds any facts which are
necessary to form the basis of an intelligent consent by the patient to the
proposed treatment."
Defendant raises two objections to the foregoing
instruction. First, he points out that the majority of the California cases
have measured the duty to disclose not in terms of an absolute, but as a duty
to reveal such information as would be disclosed by a doctor in good standing
within the medical community. (Carmichael v. Reitz (1971) supra, 17 Cal. App.
3d 958, 976; Dunlap v. Marine (1966) supra, 242 Cal. App. 2d 162; Tangora v.
Matanky (1964) supra, 231 Cal. App. 2d 468; contra, Berkey v. Anderson (1969)
supra, 1 Cal. App. 3d 790.) One commentator has imperiously declared that
"good medical practice is good law." (Hagman, The Medical Patient's
Right to Know (1970) 17 U.C.L.A. L.Rev. 758, 764.) Moreover, with one state and
one federal exception every jurisdiction that has considered this question has
adopted the community standard as the applicable test.*fn1 Defendant's second
contention is that this near unanimity reflects strong policy reasons for vesting
in the medical community the unquestioned discretion to determine if the
withholding of information by a doctor from his patient is justified at the
time the patient weighs the risks of the treatment against the risks of
refusing treatment.
The thesis that medical doctors are invested with discretion
to withhold information from their patients has been frequently ventilated in
both legal and medical literature. (See, e.g., Salgo v. Leland Stanford etc.
Bd. Trustees (1957) supra, 154 Cal. App. 2d 560, 578; Mitchell v. Robinson (Mo.
1960) supra, 334 S.W.2d 11 (even though patient was upset, agitated, depressed,
crying, had marital problems and had been drinking, the court found that since
no emergency existed and he was legally competent he should have been advised
of the risks of shock therapy).
Despite what defendant characterizes as the prevailing rule,
it has never been unequivocally adopted by an authoritative source. Therefore
we probe anew into the rationale which purportedly justifies, in accordance
with medical rather than legal standards, the withholding of information from a
patient.
Preliminarily we employ several postulates. The first
is that patients are generally persons unlearned in the medical sciences
and therefore, except in rare cases, courts may safely assume the knowledge of
patient and physician are not in parity. The second is that a person
of adult years and in sound mind has the right, in the exercise of control over
his own body, to determine whether or not to submit to lawful medical
treatment. The third is that the patient's consent to treatment,
to be effective, must be an informed consent. And the fourth is that
the patient, being unlearned in medical sciences, has an abject dependence upon
and trust in his physician for the information upon which he relies during the
decisional process, thus raising an obligation in the physician that transcends
arms-length transactions. [Put differently, the court is saying that the
physician/patient relationship is a fiduciary relationship. Island Court]
From the foregoing axiomatic ingredients emerges a
necessity, and a resultant requirement, for divulgence by the physician to his
patient of all information relevant to a meaningful decisional process. In many
instances, to the physician, whose training and experience enable a
self-satisfying evaluation, the particular treatment which should be undertaken
may seem evident, but it is the prerogative of the patient, not the physician,
to determine for himself the direction in which he believes his interests lie.
To enable the patient to chart his course knowledgeably,
reasonable familiarity with the therapeutic alternatives and their hazards
becomes essential.
Therefore, we hold, as an integral part of the physician's
overall obligation to the patient there is a duty of reasonable disclosure
of the available choices with respect to proposed therapy and of the dangers
inherently and potentially involved in each.
A concomitant issue is the yardstick to be applied in
determining reasonableness of disclosure. This defendant and the majority of
courts have related the duty to the custom of physicians practicing in the
community. (Aiken v. Clary (Mo. 1965) 396 S.W.2d 668, 675; Roberts v. Young
(1963) 369 Mich. 133 [119 N.W.2d 627, 630]; Haggerty v. McCarthy (1962) 344
Mass. 136 [181 N.E.2d 562, 565, 92 A.L.R.2d 998]; DiFilippo v. Preston (1961)
53 Del. 539 [173 A.2d 333, 339].)
The majority rule is needlessly overbroad. Even if there can
be said to be a medical community standard as to the disclosure requirement for
any prescribed treatment, it appears so nebulous that doctors become, in
effect, vested with virtual absolute discretion. (See Note, Physicians and
Surgeons (1962) 75 Harv.L.Rev. 1445; Waltz and Scheuneman, Informed Consent to
Therapy (1970) 64 Nw.U.L.Rev. 628.) The court in Canterbury v. Spence,
supra, 464 F.2d 772, 784, bluntly observed: "Nor can we ignore the fact
that to bind the disclosure obligation to medical usage is to arrogate the
decision on revelation to the physician alone. Respect for the patient's right
of self-determination on particular therapy demands a standard set by law for
physicians rather than one which physicians may or may not impose upon
themselves." Unlimited discretion in the physician is irreconcilable
with the basic right of the patient to make the ultimate informed decision
regarding the course of treatment to which he knowledgeably consents to be
subjected.
A medical doctor, being the expert, appreciates the risks
inherent in the procedure he is prescribing, the risks of a decision not to
undergo the treatment, and the probability of a successful outcome of the
treatment. But once this information has been disclosed, that aspect of the
doctor's expert function has been performed. The weighing of these risks
against the individual subjective fears and hopes of the patient is not an
expert skill. Such evaluation and decision is a nonmedical judgment reserved to
the patient alone.
A patient should be denied the opportunity to weigh the
risks only where it is evident he cannot evaluate the data, as for example,
where there is an emergency or the patient is a child or incompetent. For this
reason the law provides that in an emergency consent is implied, and if the
patient is a minor or incompetent, the authority to consent is transferred to
the patient's legal guardian or closest available relative. In all cases other than the foregoing, the
decision whether or not to undertake treatment is vested in the party most
directly affected: the patient.
The scope of the disclosure required of physicians
defies simple definition. Some courts have spoken of "full
disclosure" but such facile expressions obscure common practicalities. Two
qualifications to a requirement of "full disclosure" need little
explication. First, the patient's interest in information does not extend to a
lengthy polysyllabic discourse on all possible complications. A mini-course in
medical science is not required; the patient is concerned with the risk of
death or bodily harm, and problems of recuperation. Second, there is no
physician's duty to discuss the relatively minor risks inherent in common
procedures, when it is common knowledge that such risks inherent in the
procedure are of very low incidence.*fn2 When there is a common procedure a doctor
must, of course, make such inquiries as are required to determine if for the
particular patient the treatment under consideration is contraindicated -- for
example, to determine if the patient has had adverse reactions to medication;
but no warning beyond such inquiries is required as to the remote possibility
of death or serious bodily harm.
However, when there is a more complicated procedure, as the
surgery in the case before us, the jury should be instructed that when a given
procedure inherently involves a known risk of death or serious bodily harm, a
medical doctor has a duty to disclose to his patient the potential of death or
serious harm, and to explain in lay terms the complications that might possibly
occur. Beyond the foregoing minimal disclosure, a doctor must also reveal to
his patient such additional information as a skilled practitioner of good
standing would provide under similar circumstances.
In sum, the patient's right of self-decision is the measure
of the physician's duty to reveal. That right can be effectively exercised only
if the patient possesses adequate information to enable an intelligent choice.
The scope of the physician's communications to the patient, then, must be
measured by the patient's need, and that need is whatever information is
material to the decision. Thus the test for determining whether a potential
peril must be divulged is its materiality to the patient's decision.
(Canterbury v. Spence, supra, 464 F.2d 772, 786.)
We point out, for guidance on retrial, an additional problem
which suggests itself. There must be a causal relationship between the
physician's failure to inform and the injury to the plaintiff. Such causal
connection arises only if it is established that had revelation been made
consent to treatment would not have been given. Here the record discloses no
testimony that had plaintiff been informed of the risks of surgery he would not
have consented to the operation.
The patient-plaintiff may testify on this subject but the
issue extends beyond his credibility. Since at the time of trial the
uncommunicated hazard has materialized, it would be surprising if the
patient-plaintiff did not claim that had he been informed of the dangers he
would have declined treatment. Subjectively he may believe so, with the 20/20
vision of hindsight, but we doubt that justice will be served by placing the
physician in jeopardy of the patient's bitterness and disillusionment. Thus an
objective test is preferable: i.e., what would a prudent person in the
patient's position have decided if adequately informed of all significant
perils. (Canterbury v. Spence, supra, 464 F.2d 772, 791.)
The burden of going forward with evidence of nondisclosure
rests on the plaintiff. Once such evidence has been produced, then the burden
of going forward with evidence pertaining to justification for failure to
disclose shifts to the physician.
Whenever appropriate, the court should instruct the jury on
the defenses available to a doctor who has failed to make the disclosure
required by law.
[Patient
Waiver. Island Court]
Thus, a medical doctor need not make disclosure of risks
when the patient requests that he not be so informed. (See discussion of
waiver: Hagman, The Medical Patient's Right to Know, supra, 17 U.C.L.A. L.Rev.
758, 785.)
Such a disclosure need not be made if the procedure is
simple and the danger remote and commonly appreciated to be remote.
[The
following is a modified ‘therapeutic privilege’ exception. Island Court]
A disclosure need not be made beyond that required within
the medical community when a doctor can prove by a preponderance of the
evidence he relied upon facts which would demonstrate to a reasonable man the
disclosure would have so seriously upset the patient that the patient would not
have been able to dispassionately weigh the risks of refusing to undergo the
recommended treatment. (E.g., see discussion of informing the dying
patient: Hagman, The Medical Patient's Right to Know, supra, 17 U.C.L.A. L.Rev.
758, 778.) Any defense, of course, must be consistent with what has been termed
the "fiducial qualities" of the physician-patient relationship.
(Emmett v. Eastern Dispensary and Casualty Hospital (1967) 396 F.2d 931, 935
[130 App.D.C. 50].)
The judgment is reversed.
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