Smith v. Weaver ( 1987 )

Krivosha.C.J.,

dissenting.

I must respectfully dissent from the majority opinion in this case. I do so on two grounds.

First, I do not accept the conclusion that the propriety or necessity of a warning is not medically established by the record before us. In his affidavit, Dr. Weaver states:

3. At the time he prescribed Clinoril, Affiant also advised the Plaintiff of the primary side-effects of the drug, and instructed her to contact him if she had any problems.

10. In prescribing the Clinoril to the Plaintiff on August 7, 1979, in instructing the Plaintiff to continue taking the Clinoril on August 8, 1979, in instructing the Plaintiff to discontinue the Clinoril on August 9,1979, and in all care and treatment rendered to the Plaintiff on or after July 24, 1979, Affiant exercised the ordinary and reasonable care, skill and knowledge ordinarily possessed and used under like circumstances by members of his profession engaged in a similar practice in Omaha, Nebraska, and in similar communities.

(Emphasis supplied.) If in fact expert testimony was required, Dr. Weaver provided that testimony. It was not therefore incumbent upon the appellant to provide her own medical testimony, but, rather, she could take advantage of the affidavit filed by Dr. Weaver.

Second, I believe that the majority is in error in concluding that because of the definition of informed consent set out in Neb. Rev. Stat. § 44-2816 (Reissue 1984), Nebraska has been committed “by its Legislature to the ‘professional’ theory, under which expert evidence is indispensable to establish what information would ordinarily be provided under the prevailing circumstances by physicians in the relevant and similar localities.”

I believe that the majority is in error in that regard. Quite to the contrary, I believe that by adopting Neb. Rev. Stat. § 44-2820 (Reissue 1984), the Legislature of the State of Nebraska has committed this state to the “material risk” theory. Section 44-2820 specifically establishes the burden of proof which must be met by one who has actually suffered damages because the treating physician did not first obtain an informed consent. The statute provides:

Before the plaintiff may recover any damages in any action based on failure to obtain informed consent, it shall be established by a preponderance of the evidence that a reasonably prudent person in the plaintiff’s position would not have undergone the treatment had he or she been properly informed and that the lack of informed consent was the proximate cause of the injury and damages claimed.

This is the definition of the “material risk” theory, and not the “professional” theory. As noted by the majority, the “ ‘professional’ theory holds that the duty is measured by the standard of the reasonable medical practitioner under the same or similar circumstances,” while the “material risk” theory holds that the duty to disclose is to be measured by the patient’s need for information to balance the probable risks against the probable benefits in making the decision to either undergo or forgo the treatment proposed. An example of the “material risk” theory is found in the case of Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977). The central issue in the Sard case was whether the appellants had presented evidence legally sufficient to permit a jury to decide whether the appellee doctor was negligent in failing to advise the appellants that a tubal ligation, which he performed on Mrs. Sard, might not succeed in preventing future pregnancies, and in failing to disclose alternative means of achieving the desired result. In concluding that there was sufficient evidence, the Maryland court reviewed the concept of “informed consent,” and said:

The doctrine of informed consent, which we shall apply here, follows logically from the universally recognized rule that a physician, treating a mentally competent adult under non-emergency circumstances, cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient. [Citations omitted.] In order for the patient’s consent to be effective, it must have been an “informed” consent, one that is given after the patient has received a fair and reasonable explanation of the contemplated treatment or procedure.

Id. at 438-39, 379 A.2d at 1019.

The court then went on to observe:

The major areas of dispute focus on: (1) the scope of the physician’s duty to warn, that is, whether the duty is to be measured by a professional standard of care or a general reasonableness standard; (2) whether expert medical testimony is required to prove the standard of care; and (3) the appropriate test for proving causal connection between the failure to disclose and any resulting injury or damage.

Id. at 440, 379 A.2d at 1020.

The Maryland court then concluded that Maryland followed the “material risk” theory, saying:

“The scope of the physician’s communications to the patient, then, must be measured by the patient’s need, and that need is whatever 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.” [Citation omitted. ]

. . . Whether a physician has fulfilled his duty to disclose, then, is to be determined by reference to a general standard of reasonable conduct and is not measured by a professional standard of care.

Id. at 443-44, 379 A.2d at 1022. In my view, the definition as set out by the Maryland court is what is required under § 44-2820.

Even if we are said to be a “professional” theory jurisdiction, or some hybrid, I believe the majority opinion is in error insofar as the granting of a summary judgment is concerned.

The Kansas Supreme Court’s decision in Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093 (1960) (Natanson I), is generally recognized as the leading authority in support of the “professional” theory in cases of informed consent. See Sard v. Hardy, supra. In Natanson I, the Kansas court said:

In our opinion the proper rule of law to determine whether a patient has given an intelligent consent to a proposed form of treatment by a physician was stated and applied in Salgo v. Leland Stanford, Etc. Bd. Trustees, [154 Cal. App. 2d 560, 317 P.2d 170 (1957)]. This rule in effect compels disclosure by the physician in order to assure that an informed consent of the patient is obtained. The duty of the physician to disclose, however, is limited to those disclosures which a reasonable medical practitioner would make under the same or similar circumstances. How the physician may best discharge his obligation to the patient in this difficult situation involves primarily a question of medical judgment. So long as the disclosure is sufficient to assure an informed consent, the physician’s choice of plausible courses should not be called into question if it appears, all circumstances considered, that the physician was motivated only by the patient’s best therapeutic interests and he proceeded as competent medical men would have done in a similar situation.

186 Kan. at 409-10, 350 P.2d at 1106.

Nevertheless, after declaring Kansas to be a “professional” theory state, the Kansas court on rehearing held that expert testimony was not necessary in order to present the issue to the trier of fact. In Natanson v. Kline, 187 Kan. 186, 189-90, 354 P.2d 670, 673 (1960) (Natanson II), the Kansas court went to great lengths to explain this difference:

Conceivably, in a given case as indicated in the opinion, no disclosures to a patient may be justified where such practice, under given facts and circumstances, is established by expert testimony to be in accordance with that of a reasonable medical practitioner under the same or similar circumstances. But on the state of the record here presented the appellant was not required to produce expert medical testimony to show that the failure of Dr. Kline to give any explanation or make any disclosures was contrary to accepted medical practice. To hold otherwise would be a failure of the court to perform its solemn duty.

Whether or not a physician has advised his patient of the inherent risks and hazards in a proposed form of treatment is a question of fact concerning which lay witnesses are competent to testify, and the establishment of such fact is not dependent upon expert medical testimony. It is only when the facts concerning the actual disclosures made to the patient are ascertained, or ascertainable by the trier of the facts, that the expert testimony of medical witnesses is required to establish whether such disclosures are in accordance with those which a reasonable medical practitioner would make under the same or similar circumstances.

(Emphasis in original.)

In the instant case, appellant maintains that she received no warnings. On that basis, even under the “professional” theory, appellant has established a genuine issue of a material fact so as to preclude the appellee from being granted summary judgment.

The majority suggests that the distinction between “no warning” and an “inadequate warning” is illusory. I do not agree. By his own affidavit, Dr. Weaver established that Clinoril had known side effects. If, as appellant alleges, appellee failed to disclose any known side effects to the appellant, appellee would be liable as a matter of law, as noted by the Kansas court in Natanson II: “He made no disclosures. He was silent. On this state of the record Dr. Kline failed in his legal duty to make a reasonable disclosure to the appellant who was his patient as a matter of law” (Emphasis in original.) Id. at 189, 354 P.2d at 673. It may be that there is a legal defense for failing to make the disclosure. The appellee may present expert testimony justifying his action either in failing to give any warnings, as alleged by appellant, or in giving the warnings which he did give, as alleged by the appellee. Nevertheless, those are questions of fact to be resolved in a trial and not to be disposed of by summary judgment. The judgment of the district court should have been reversed and the matter ordered to trial.

I am authorized to state that White and Shanahan, J J., join in this dissent.