Wednesday, January 29, 2014

COBBS V. GRANT - Comment

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COBBS v. GRANT helps with several important points addressed in the course.

Therapeutic Privilege.  Therapeutic privilege is one of the known exceptions to the general rule that a physician must obtain his patient's consent to a medical procedure.

At one time, the majority [most courts] view was that the amount of disclosure to the patient would be based entirely upon the discretion of the physician applying the standard of practice of other physicians in his community.

In Canterbury the surgeon withheld fundamental information related to the risks of a proposed back surgery so that his patient would not be frightened into making a bad medical decision and avoiding the treatment, and risks, the doctor thought he needed to take.  In Canterbury, the patient would have been better off skipping the surgery and the surgeon would have been better off disclosing all of the inherent risks of the procedure.  The patient ended up partially paralyzed.

The Canterbury decision has been very influential when similar issues have come up in other jurisdictions, and it has often been adopted either by the courts of a state or by the state legislature.

Sometimes, the Canterbury decision has lead many to conclude that 'therapeutic privilege' is completely dead, and that appears largely to be true when one is thinking of the version exercised by the Canterbury surgeon.  However, as Cobbs shows, the therapeutic privilege exception is not entirely vanquished.

The Cobbs court cites Canterbury with approval and adopts its rationale for the State of California, but the opinion also says this:

"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."

The California jury instruction given to all juries on the issue of therapeutic privilege mirrors the language of the  Cobbs decision.  It should be noted that the case that 'vanquished' therapeutic privilege, Canterbury, provides the same exception allowed in Cobbs.

Before departing this field of inquiry altogether, it is worth asking this:  Could a physician who has the Cobbs option of exercising therapeutic privilege open himself to liability if he fails to use the exception and frightens a 'seriously upset' patient into declining treatment that would save his life?  The patient's widow and her lawyer might think so. 

Expert Witness.  The general rule is that a medical malpractice case cannot be sustained or proven without the aid of expert witnesses.  Astonishingly, in Cobbs the plaintiff called no expert witness while the defendant physician had three.

To defend its failure to call an expert witness, the plaintiff tried (without success) to rely on an important exception to the requirement for expert testimony by declaring that "the facts present a medical question resolvable by common knowledge."  That is to say, the malpractice is so obvious that one need not be an expert or medically trained to know that malpractice occurred.  The Cobbs court dismissed this argument by pointing to other cases where 'common knowledge' could supplant the need for an expert witness, one in which a shoulder was injured during an appendectomy and another in which a clamp was left in the patient's abdomen.  It does not require an expert to find negligence when clamps are left in a patient's body.  However, the facts in the Cobb case were not so clear as abandoned and forgotten clamps and the court ruled that expert witnesses were, indeed, needed to confront the 3 experts called by the defendant physician.

Although the court does not use the phrase 'res ipsa loquitur' [addressed in another post] it is clear that the court's discussion of the need (or lack thereof) of expert testimony is very similar to the res ipsa loquitur exception.  Although, it should be said that res ipsa loquitur was not originally founded on the requirement of an expert witness so much as the need at all for any witness to negligence when the accident blatantly 'speaks for itself' (res ipsa loquitur) inasmuch as it could not have happened but for someone's negligence.    

[More on res ipsa loquitur on this blog: RES IPSA LOQUITUR]

Battery or Negligence

The Cobbs court makes an important distinction between battery and negligence when addressing informed consent cases.  It should be noted that the Bang case failed to make this distinction.

Battery is a fairly old tort (wrong for which you can be sued) and is mentioned in Blackstone's famous Commentaries on the Laws of England (1765-1769) and in its modern variant reads "any unauthorized touching is a battery."

The court in Bang drew upon the law of battery in holding that the physician could be liable to Mr. Bang for obtaining his consent to a transurethal resection but failing to tell him that a consequence of the surgery would be infertility.

The Bang court relied, in part, on the Mohr case in which the surgeon who had approval to operate on one ear elected to operate on the other ear instead, after sedating the patient and without gaining patient approval for the change.

The Cobbs court (we think rightly) sees an important distinction between Bang and Mohr and, for that matter, Cobbs.

It was plain and simple classic battery for the physician in Mohr to operate on a body part to which the patient had granted no access.  It was obviously an 'unauthorized touching'.  What if he decided to give the patient a rhinoplasty because he did not like the look of her nose?  You cannot switch from one body part to another without patient consent absent a genuine medical emergency.

But Bang and Cobbs and Canterbury differ from Mohr in that in each of these cases the doctor did have the patient consent to touch the body part in question.  How is that 'unauthorized touching'?  Instead, Cobbs argues with Canterbury that instead of treating this type of informed consent failure as a true battery it should be regarded as 'negligence' in failing to follow the standard of care, that standard requiring that the patient be given the necessary facts needed to make a valid consent.

The distinction is important.  Battery is a deliberate tort that may not be covered by the physician's malpractice insurance carrier.  On the other hand, failing to meet the standard of care by negligently informing the patient fully is the type of malpractice covered by the carrier.  Keeping the distinction clear could make the difference between having the insurer pay a judgment against you or having the sheriff come and seize your belongings to satisfy the judgment.

The Cobbs court also warns that battery and negligence may have different statutes of limitation.  That, of course is exactly what happened in Canterbury.  Once the Canterbury court decided that the physician had not given adequate disclosure prior to the surgery it had to decide whether the resulting tort was a battery or a case of negligence.

The statute of limitations for battery was one year.  The statute of limitations for negligence was three years.

More than a year, but less than 3 years, had passed before Canterbury's suit was filed.  Under a theory of battery, Canterbury's case was dead.  Under a theory of negligence, Canterbury's case was still within the statute of limitations and could be pursued.  The Canterbury court decided that the failure to obtain proper informed consent was a negligent act that fell below the standard of care and thus was a tort with a three-year statute of limitations. 

Finally, some jurisdictions appear to have blended the two different concepts by introducing the term 'medical battery' which would be covered by malpractice insurance.

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