Bushey v. Atlanta Emergency Group , 179 Ga. App. 827 ( 1986 )

Deen, Presiding Judge,

concurring specially.

While concurring fully with the majority opinion that the appellants’ expert evidence is merely conclusory and thus legally insufficient to counter the defendants’ expert evidence, some observations about the issue of informed consent are appropriate. Thus, I am also concurring specially.

The appellants asserted in their complaint that had the defendants advised them of the risks attendant to the surgery, they would not have consented to the operation. On appeal, however, the parties regrettably did not address this matter.

On the numerous occasions this court has considered the doctrine of informed consent and the Georgia Medical Consent Law (OCGA § 31-9-6), it has adhered to its original statutory construction holding that there is no duty to disclose the risks of treatment, notwithstanding the fact that all other states hold otherwise. See Simpson v. Dickson, 167 Ga. App. 344 (306 SE2d 404) (1983), and Smith, “Ga.’s Medical Consent Law,” 21 Ga. State Bar J. 138 (1985). Were this issue properly presented to this court now for review, this writer would propose reconsideration of this court’s previous statutory interpretation and adoption of the majority rule of requiring informed consent. This would seem to have merit as medicine, at best, is an inexact science (the same applies to law). Blount v. Moore, 159 Ga. App. 80 (282 SE2d 720) (1981). It is “experimental.” Bennett v. Ware, 4 Ga. App. 293, 299 (61 SE 546) (1908).

The mutual benefits derivable from a disclosure of the risks of treatment would seem to make such a requirement humane, fair, and logical. Physicians, like lawyers and other professionals,¹ are not incapable of error; yet physicians, under our present interpretation of the law, are allowed to control a patient’s “decision” about treatment through the nondisclosure of risks. Sometimes a patient may have no good option, but what meager measure of dignity is afforded a person who is not even allowed to make the choice? By what legal or moral right have physicians been anointed masters of the choice? One may not intelligently exercise his fundamental right of controlling his own body without being apprised of up-to-date medical information as to possible major and minor risks involved and other viable alternatives to surgery. An informed patient has the benefit and peace of being allowed to decide for himself what treatment is in his best interest, and a physician who has fully disclosed the risks of treatment has decreased his risks of liability. More information is better than less information for both patient and doctor, particularly where precision in making major decisions about surgical incisions is concerned. Nevertheless, under our renegade case law, even in this modern enlightened and “informed” age, a patient (and perhaps the surgeon) still operates and walks in the dark when it comes to deciding what available treatment is appropriate or most desirable.

Decided July 8, 1986 Rehearing denied July 23, 1986 Alford Wall, Douglas T. Noonan, for appellants.

An undercurrent of dissatisfaction with the current status of the law is perceptible in Simpson v. Dickson, supra, which followed the previous decisions on this issue out of stare decisis and hinted that the solution now might be legislative. In that instance, this court was wrong to hide behind the protective shield of stare decisis and merely invoke the prospect of salvation by legislation. We created the monster, and should not shut our eyes, grit our teeth and pray that someone else slay it for us. “[I]t has never been the doctrine of any court of last resort that the law is to be a refuge and safe asylum for all the errors that creep into it.” City of Atlanta v. First Presbyterian Church, 86 Ga. 730, 733 (13 SE 252) (1891). “[Stability must give way to justice. . . .” Hall v. Hopper, 234 Ga. 625, 632 (216 SE2d 839) (1975).

No obstacle other than the reluctance to accept responsibility for its own error prevents this court from matching a wrong with a remedy. The Supreme Court has never ruled on the issue. In Robinson v. Parrish, 251 Ga. 496 (306 SE2d 922) (1983), in holding that disclosure of risks was not required under the Georgia Voluntary Sterilization Act, the Supreme Court noted this court’s long-standing rule of nondisclosure under the Georgia Medical Consent Law; however, the general doctrine of informed consent obviously was not before or addressed by the Supreme Court in that case.

W. H. Duckworth, Jr., Penelope B. Rundle, Frederick N. Gleaton, Michael Frick, Laurie E. Demorest, for appellees.

1 Although no codification of a standard for the legal profession similar to the medical consent law applicable to surgery has yet appeared, perhaps the situation in the legal profession most analogous to that of disclosure of risks of treatment would be the matter of litigation. “Informed consent about each critical decision in a case and the method of pursuing the litigation is clearly vital to clients. . . .” Salomon, “Professionalism: Should There Be Limits on Lawyer Zeal?” The National Law Journal, 17, 21 (July 21, 1986). In particular, in almost every case in the future, advising a client of the risks of litigation with regard to costs and damages for abusive litigation may be especially appropriate. See Yost v. Torok, 256 Ga. 92 (344 SE2d 414) (1986), and compare OCGA § 9-15-14 and OCGA § 5-6-35 (House Bill 1146) effective July 1, 1986. Note also Court of Appeals Rule 26 (b) and Supreme Court Rule 14, as well as OCGA § 5-6-6 relating to frivolous appeals.