Rook v. Trout , 113 Idaho 652 ( 1987 )

BAKES, Justice,

concurring specially:

I concur in the result reached by the majority but disagree with the Court’s analysis. Particularly, I disagree with the Court’s conclusion that I.C. § 39-4304 establishes “a patient-based standard of disclosure for informed consent cases.” Ante at 657, 747 P.2d at 66. The Court quotes approvingly from Cobbs v. Grant, 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1 (1972), that “[t]he 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.” The Court’s opinion, which is based, at least in part, on the quotation from Cobbs, establishes a subjective patient-based standard which is contrary to the express language contained in I.C. § 39-4304 that “[a]ny such consent shall be deemed valid ... if the physician ... to whom it is given ... has made such disclosures and given such advice respecting pertinent facts and considerations as would ordinarily be made and given under the same or similar circumstances, by a like physician ... of good standing practicing in the same community.” (Emphasis added.) The Idaho statute adopts an objective physician-community standard, not the subjective patient-based standard of foreign jurisdiction cases such as Cobbs.

However, the Court’s opinion is correct that the plaintiff’s affidavit denies that any disclosures were ever made, and the defendant’s affidavit was unclear on the issue of whether or not the disclosures which he made met the community standard. Therefore, construing the record most favorably to the appellant, summary judgment should not have been granted based upon this record.

The presumption set out in I.C. § 39-4305, as it relates to the advice and disclosure requirements appears to be an ordinary presumption ¹ which, when faced with the conflicting affidavits regarding the advice and disclosures made, does not preclude the triable issue of fact regarding whether or not the respondent gave any advice and disclosures, and whether those disclosures were the same as “would ordinarily be made and given under the same or similar circumstances by a like physician or dentist of good standing practicing in the same community.”

1 . I.C. § 39-4305, as written, is somewhat ambiguous. It is unclear whether the evidentiary requirement of "convincing proof that it was secured maliciously or by fraud” applies to both "care, treatment or procedures” as well as the “advice and disclosures of the attending physician” and the “level of informed awareness of the giver of such consent.” If the sentence ended with the word "consent,” and the last four words, "shall be presumed sufficient," were omitted, the evidentiary requirement of convincing proof of malice or fraud would probably apply both to the care, treatment or procedures, as well as the advice and disclosures and the awareness of the giver of such consent. However, the majority of the Court is probably correct that the sentence, as presently drafted, limits the convincing proof of malice or fraud requirement to the care, treatment or procedures portion of the written consent, and not to the advice and disclosures portion, which presumably is an ordinary presumption. If the Court's interpretation does not comport with the legislature’s intentions, the problem can be easily remedied by the legislature.