Robinson v. Our Sisters of Charity

Robinson v
Robinson v. Sisters of Charity
Decided Feb. 10, 1998
(NOT TO BE CITED AS AUTHORITY)
No. 97-294
IN THE SUPREME COURT OF THE STATE OF MONTANA
1998 MT 25NJACK L. ROBINSON,
Plaintiff and Appellant,
v.
OUR SISTERS OF CHARITY OF LEAVENWORTH,
K.S., d/b/a/ ST. VINCENT'S HOSPITAL AND
HEALTH CARE FACILITY OF
BILLINGS, MONTANA,
Defendant and Respondent.
APPEAL FROM: District Court of the Thirteenth Judicial District,
In and for the County of Yellowstone,
The Honorable Russell C. Fagg, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Jack L. Robinson, Billings, Montana (pro se)
For Respondent:
Robert C. Brown, T. Lee Bruner, Poore, Roth & Robinson,
Butte, Montana
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Submitted on Briefs: August 21, 1997
Decided: February 10, 1998
Justice Hunt delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court
1996 Internal Operating Rules, the following decision shall not be
cited as precedent but shall be filed as a public document with the
Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter
Publishing Company and to West Group in the quarterly table of
noncitable cases issued by this Court.
¶2 Jack L. Robinson ("Robinson") appeals from the decision of the
Thirteenth Judicial District Court, Yellowstone County, dismissing
his action against St. Vincent's Hospital ("Hospital") for failure
to state a claim. We affirm.
¶3 Two issues are presented on appeal:
¶4 1. Does a hospital have a duty to obtain a patient's
informed consent prior to surgery?
¶5 2. Does a hospital have a duty to disclose the results of an
internal study on infection rates to a patient prior to surgery?
FACTUAL AND PROCEDURAL BACKGROUND
¶6 Robinson underwent neck surgery at St. Vincent's Hospital in
Billings, Montana. Subsequently, he contracted a staph infection.
As a result, Robinson instituted an action, pro se, against the
Hospital. His amended complaint alleges that the Hospital
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intentionally withheld information "concerning a rash of infections
during the three months prior to [Robinson's] operation. ..." In
Count I, he claims that the Hospital negligently failed to inform
him of the risks of contracting a staph infection from the surgery.
In Count II, Robinson alleges that the Hospital unlawfully withheld
the results of an internal study the Hospital conducted regarding
infectious disease rates in the Hospital.
¶7 The District Court dismissed both counts of the amended
complaint, pursuant to Rule 12(b)(6), M.R.Civ.P., for the failure
to state a claim for which relief may be granted. The court held
that the duty to provide informed consent rests with the treating
doctor and not with the Hospital. It also held that the results of
the alleged internal study conducted by the Hospital are privileged
and are inadmissible in judicial proceedings pursuant to Secs. 50-
16-202, 203, and 205, MCA. Additionally, the court held that Sec.
50-16-529, MCA, did not impose a duty upon the Hospital to disclose
the results of that study.
STANDARD OF REVIEW
¶8 Motions to dismiss are construed in a light most favorable to
the non-moving party. All allegations of fact contained in the
complaint are taken as true, and the motion should not be granted
unless it appears beyond a doubt that the non-moving party can
prove no set of facts in support of its claim which would entitle
it to relief. Stenstrom v. State (1996), 280 Mont. 321, 325, 930
P.2d 650,652 (citing Hilands Golf Club v. Ashmore (Mont. 1996), 277
Mont. 324, 328, 922 P.2d 469, 471-72). We review the lower court's
conclusions of law to determine whether the court's interpretation
of the law is correct. Stenstrom, 930 P.2d at 653 (citing Carbon
County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469,
898 P.2d 680, 686.)
ISSUE ONE
¶9 Does a hospital have a duty to obtain a patient's
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informed consent prior to surgery?
¶10 This Court set forth the general rule on informed consent in
Negaard v. Feda (1968), 152 Mont. 47, 446 P.2d 436, overruled on
other grounds by Burlingham v. Mintz (1995), 270 Mont. 277, 280,
891 P.2d 527, 529. We stated that a "physician is under a duty
under some circumstances to warn his patient of the known risks of
proposed treatment so that the patient will be in a position to
make an intelligent decision as to whether he will submit to such
treatment." Negaard, 446 P.2d at 441.
¶11 Robinson alleges that the Hospital breached this duty when it
failed to inform him of the risks of contracting staph infection
following his surgery. The Hospital, on the other hand, argues
that it had no legal duty to advise Robinson of the risks
associated with surgery. It maintains that the duty to provide
informed consent rests solely with the patient's surgeon and not
with the Hospital. We agree.
¶12 Although this is the first time that this Court has been
presented with the precise question of whether a hospital has such
a duty, in the past we have declined to extend the duty to those
other than the surgeon who actually performs the medical procedure
at issue. In Llera v. Wisner (1976), 171 Mont. 254, 557 P.2d 805,
the plaintiff alleged that an orthodontist who referred him to
another doctor for possible surgery was negligent because he failed
to obtain his informed consent or to advise him of risks associated
with the surgery. Llera, 557 P.2d at 810. This Court rejected
his claim, noting that we could "find no case where liability for
failure to inform is found against one other than the physician who
undertakes the operation." Llera, 557 P.2d at 810. In that case
the referring doctor did not advise the plaintiff on the surgery,
because he did not have knowledge of it other than through his
reading. He simply referred the plaintiff to another doctor who
could give him further information. Llera, 557 P.2d at 810. We
concluded by summarizing the rule on informed consent as follows:
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The rule is that the physician who prepares to perform a
medical or surgical procedure has the obligation to
explain that procedure to the patient - not the referral
doctor.
¶13 In other contexts not involving the precise question of
whether a hospital has a duty to obtain informed consent, this
Court explained how that duty is to be carried out. Our
explanation indicates that the physician performing the procedure
is the sole person obligated and equipped to advise the patient of
potential risks. We stated in Negaard:
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
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have done in a similar situation.
Negaard, 446 P.2d at 441. Similarly, in Collins v. Itoh (1972),
160 Mont. 461, 468, 503 P.2d 36, 40, we stated that the duty to
inform is a "matter of medical judgment," and the duty is "limited
to those disclosures which a reasonable practitioner would make
under similar circumstances." (emphasis in original deleted). See
also Doerr v. Movius (1970), 154 Mont. 346, 349, 463 P.2d 477, 478-
79 (stating the duty is a "matter of medical judgment" judged by
the reasonable practitioner standard).
¶14 Limiting the duty to the physician and not the hospital is
only logical, as the physician alone possesses the necessary
knowledge to make the medical judgment. It is the physician who
has the medical education, training and experience. It is the
physician who has knowledge of the particular medical procedure,
its risks, and the possibility for alternate procedures. It is
likewise the physician who knows the patient's medical history,
temperament and intelligence. The physician and not the hospital
is in the best position to evaluate the potential risks of the
surgery in light of the patient's medical history and is in the
best position to explain the procedure in a manner the patient will
understand.
¶15 Our decision today is not without precedent in other states.
Other jurisdictions addressing this issue have similarly held that
a hospital does not have the duty to obtain informed consent. See
Kelly v. Methodist Hospital (Pa. Super. Ct. 1995), 664 A.2d 148,
151 (refusing to impose upon hospitals the duty to obtain informed
consent and noting that "every jurisdiction which has considered
the issue presented here has declined to impose upon hospitals the
general duty to obtain informed consent."); Ritter v. Delaney (Tex.
App. 1990), 790 S.W.2d 29, 31 (interpreting a statute and holding
that "it is the duty of the treating physician, and not the
hospital, to secure the informed consent of the patient.");
Roberson v. Menorah Medical Center (Mo. Ct. App. 1979), 588 S.W.2d
134, 137 (holding the physician and not the hospital has the duty
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to obtain informed consent).
¶16 Although we hold that a hospital does not generally have a
duty to obtain informed consent, it is possible in unique factual
circumstances that a hospital may have some duty in this area.
However, accepting all allegations of Robinson's complaint as true,
this is not one of those cases. Accordingly, we hold that the
Hospital did not have a duty to obtain Robinson's informed consent
prior to surgery, and the District Court did not err in dismissing
Count I of the complaint.
ISSUE TWO
¶17 Does a hospital have a duty to disclose the results of an
internal study on infection rates to a patient prior to
surgery?
¶18 Robinson alleges that the Hospital negligently "cover[ed]-up"
the results of its "own investigation into the rash of infections"
in the Hospital. He alleges that in so doing, the Hospital
breached "the fidelity and trust" that existed between the Hospital
and him. The Hospital neither admits nor denies that such a study
exists. Instead, it contends that even if the Hospital did conduct
that study, it is nondiscoverable and privileged pursuant to Secs.
50-16-203 and 205, MCA.
¶19 Assuming, as we must in a motion brought pursuant to Rule
12(b)(6), M.R.Civ.P., that the Hospital did indeed conduct an
internal study regarding a "rash of infections," the results of
that study are privileged. By law, in-hospital medical staff
committees have access to patients' records in part to obtain
statistics and conduct studies relating to the prevention and
treatment of diseases and illnesses within the Hospital. Section
50-16-202, MCA, provides:
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Committees to have access to information. It is in the
interest of public health and patient medical care that
in-hospital medical staff committees have access to the
records, information, and other data relating to the
condition and treatment of patients in such hospital to
study and evaluate for the purpose of evaluating matters
relating to the care and treatment of such patients for
research purposes and for the purpose of reducing
morbidity or mortality and obtaining statistics and
information relating to the prevention and treatment of
diseases, illnesses, and injuries. To carry out such
purposes, any hospital, its agents and employees may
provide medical records, information, or other data
relating to the condition and treatment of any patient in
said hospital to any in-hospital medical staff committee.
¶20 The statute also confers an absolute privilege upon the
proceedings, records, and reports of such in-hospital medical staff
committees. All such data is confidential and inadmissible in
judicial proceedings. The relevant statutory sections state:
50-16-203. Committee information and proceedings
confidential and privileged. All such records, data, and
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information shall be confidential and privileged to said
committee and the members thereof, as though such
hospital patients were the patients of the members of
such committee. All proceedings and in-hospital records
and reports of such medical staff committees shall be
confidential and privileged.
50-16-205. Data confidential - inadmissible in
judicial proceedings. All data shall be confidential
and shall not be admissible in evidence in any judicial
proceeding, but this section shall not affect the
admissibility in evidence of records dealing with the
patient's hospital care and treatment.
Sections 50-16-203 and 205, MCA. In Sistok v. Kalispell Regional
Hosp. (1991), 251 Mont. 38, 823 P.2d 251, we interpreted these
statutory provisions. We held that "this statute unambiguously
confers an absolute privilege on medical staff committees."
Sistok, 823 P.2d at 253. Accordingly, because the results of the
internal study were protected by an absolute privilege, the
Hospital had no duty to reveal them to Robinson prior to his
surgery.
¶21 Notwithstanding this absolute privilege, Robinson argues that
Sec. 50-16-529, MCA, imposed a duty upon the Hospital to disclose
the results of the internal study. We disagree. First, that
statutory section merely authorizes a health care provider to
release certain information; it does not require the release. See
Sec. 50-16-529, MCA,: "A health care provider may disclose health
care information. ..." (emphasis added). Second, that statute
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authorizes the release only in nine enumerated circumstances.
Robinson does not fall within any of the nine classifications.
Indeed, he does not even allege to fall within any of them. Hence,
even if the Hospital chose to release certain information, Robinson
is not a proper recipient. Third, the statute does not authorize
the release of internal studies in any case. That statute defines
when a hospital may disclose health care information about a
patient without the patient's authorization to the extent the
recipient needs to know. It does not authorize the disclosure of
internal hospital studies or statistics. See Sec. 50-16-529, MCA.
¶22 Robinson also contends that the Hospital had a duty to
disclose the results of the internal study pursuant to Sec. 50-5-
106, MCA. That statutory section requires licensed health care
facilities to submit annual reports to the Department of Health and
Human Services. It also states that "[i]nformation and statistical
reports from health care facilities which are considered necessary
by the department for health planning and resource development
activities must be made available to the public. ..." Section 50-
5-106, MCA. Because he is a member of the public, Robinson argues
the Hospital should have disclosed the study to him.
¶23 We reject Robinson's contention. This is the first time that
Robinson has argued that this particular statute required the
Hospital to disclose the results of the internal study. This Court
has consistently stated that "[w]e will not address an issue
presented for the first time on appeal." Rasmussen v. Lee (1996),
276 Mont. 84, 88, 916 P.2d 98, 100 (citation omitted). "When a
party argues for the application of a statute for the first time on
appeal, the party raises a new set of questions that were not
presented to the district court; and this Court will not find the
district court to have erred on an issue that was ``not presented to
or ruled on by the lower court.'" Farm Credit Bank of Spokane v.
Hill (1993), 266 Mont. 258, 263, 879 P.2d 1158, 1161 (citing Hanley
v. Department of Revenue (1983), 207 Mont. 302, 307, 673 P.2d 1257,
1259).
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¶24 Robinson could not prevail in any event. Our review of the
regulations implementing Sec. 50-5-106, MCA, indicate that this
statute requires the Hospital to report information such as
organizational data, financial data and the type of services
provided. See, generally, ARM 16.32.119, 138-142. We located no
requirement, either in the statute or the regulations, that the
Hospital disclose the results of the internal study to the
Department of Health and Human Services. Robinson does not even
allege in his amended complaint that the results of the internal
study was information that the Hospital was either required to
report or actually reported pursuant to Sec. 50-5-106, MCA.
¶25 Accordingly, based upon all the foregoing, we conclude that
the Hospital had no duty to disclose the results of the internal
study to Robinson prior to surgery. We hold that the District
Court did not err in dismissing Count II of the amended complaint.
/S/ WILLIAM E. HUNT, SR.
We Concur:
/S/ J. A. TURNAGE
/S/ JIM REGNIER
/S/ KARLA M. GRAY
Justice W. William Leaphart, dissenting in part and specially
concurring in part.
P26 I dissent as to issue one and specially concur as to issue
two. The Court adopts the proposition that the duty to provide
informed consent rests solely with the patient's surgeon and not
with the hospital. I disagree with such a broad proposition.
P27 The Court reasons that:
Limiting the duty to the physician and not the
hospital is only logical, as the physician alone
possesses the necessary knowledge to make the medical
judgment. It is the physician who has the medical
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education, training and experience. It is the physician
who has knowledge of the particular medical procedure,
its risks, and the possibility for alternate procedures.
It is likewise the physician who knows the patient's
medical history, temperament and intelligence. The
physician and not the hospital is in the best position to
evaluate the potential risks of the surgery in light of
the patient's medical history and is in the best position
to explain the procedure in a manner the patient will
understand.
P28 It may well be true that the physician is uniquely positioned
to know the patient and the procedure and the risks inherent in the
procedure. However, that does not address the question posed by
Robinson's allegations. The risk alleged by Robinson is not a risk
which is normally inherent in the procedure or surgery, but rather
is a risk arising out of the allegedly nonsterile conditions of the
hospital in which the surgery was performed. Assume, for example,
that the physician had not performed surgery in that hospital in
the last week and was unaware that the hospital had experienced an
alarming number of staph infections in the last 4 days. Despite
his or her knowledge of the surgical procedure and of the patient,
the physician would not be in a position to know of the infectious
conditions nor to advise his or her patient of the risks arising
out of those conditions. That knowledge is in the hands of the
hospital administrators, and the hospital should be held
responsible for advising unsuspecting patients and their physicians
that the risk of infection is more than that normally associated
with the procedure when performed in a reasonably sterile
environment. When, due to conditions in a hospital, the risk of
infection exceeds that which the physician has come to expect from
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the procedure, the burden of advising the patient of the increased
risk should fall on the hospital, not the physician.
P29 Citing decisions from three other jurisdictions, the Court
generalizes that courts are in agreement that hospitals do not have
the duty to obtain informed consent. However, a review of these
decisions illustrates my point. In Roberson v. Menorah Medical
Center (Mo. App. 1979), 588 S.W.2d 134, the court held that the
physician must "have a knowledge of the surgery itself--its risks,
whether imminent or remote, and whether it is pressing, deferrable
or optional. ... The physician alone [as opposed to the hospital]
is equipped to make the delicate judgments called for." Roberson,
588 S.W.2d at 137. In Kelly v. Methodist Hosp. (Pa. Super. 1995),
664 A.2d 148, the patient alleged that the hospital was negligent
in failing to monitor the physician in the obtaining of informed
consent, in failing to set forth the substance of what must be
disclosed by a physician in obtaining informed consent and in
failing to implement guidelines as to the requirement that the
patient be informed of "all of the risks" of a surgical procedure.
Ritter v. Delaney (Tex. App. 1990), 790 S.W.2d 29, involves an
allegation that the hospital took on a nondelegable duty from the
physician by soliciting the patient's consent to a carotid
endarterectomy. Each of these decisions stands for the proposition
that the physician, not the hospital, has an obligation to obtain
informed consent as to the risks involved in the surgery in
question. None of the cited decisions addresses the question of
whether a hospital has a separate and independent obligation to
advise a patient of conditions existing in the hospital that
increase those risks which a physician normally associates with the
surgery and of which the physician is expected to advise the
patient.
P30 Furthermore, although the record in this case is silent in
this regard, I suspect that Robinson signed a hospital consent form
in order to be admitted to the hospital. If, as a condition of
admission, the hospital requires the patient to sign a consent
form, that is all the more reason to require that the patient's
consent to hospitalization be an "informed consent" warning the
patient of risks inherent, not in the procedure, but in having the
procedure performed in that hospital at that time.
P31 Even assuming, as the majority holds, the physician has a duty
to inform the patient of conditions at the hospital, including
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abnormal conditions, I see no logic or policy in favor of holding
that the duty falls solely or exclusively on the physician with the
hospital being free of all liability. A plaintiff who alleges
injury due to abnormal conditions at a hospital should, at the very
least, be able to state a cause of action against either the
hospital, the physician or both. He or she should not be
restricted to suing the physician.
P32 As to whether the hospital is required or permitted to
disclose the contents of its internal investigation of infections
at the hospital, I agree that the results of such an investigation
are, by statute, confidential. However, the confidentiality of
such a report does not relieve the hospital of its duty to obtain
informed consent. In other words, the hospital has a duty to
advise a patient of conditions at the hospital regardless of
whether there has been an investigation or a report concerning such
conditions.
P33 I reject the proposition that a hospital has no duty to obtain
informed consent when conditions at the hospital are such that the
risks normally inherent in a hospital procedure are increased.
For that reason I would reverse the dismissal of Robinson's suit
for failure to state a claim.
/S/ W. WILLIAM LEAPHART
Justice James C. Nelson and Justice Terry N. Trieweiler join in the
foregoing.
/S/ JAMES C. NELSON
/S/ TERRY N. TRIEWEILER
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