Medical Malpractice
Additional Cases Cited
222 Mass. 430Bing v. Thunig and St. John's Episcopal Hospital
Canterbury v. Spence
Cooper v. Ssisters of Charity of Cincinnati, Inc.
Herskovitis v. Group Health Cooperative of Puget Sound
Reddington v. Clayman
Santos v. Kim
Shine v. Vega
Toy v. Mackintosh
TOY v. MACKINTOSH
Supreme Judicial Court of Massachusetts, Suffolk
Jan. 10, 1916A finding that plaintiff's condition was the result of defendant dentist allowing him to swallow a tooth held not authorized by evidence merely of its arising soon afterwards.
CROSBY, J. This is an action to recover damages for the alleged negligence of the defendant in allowing a tooth to fall into the plaintiff's throat during an operation performed on January 7, 1913, for the extraction of several teeth by the defendant, which was performed while the plaintiff was under an anaesthetic. The plaintiff claimed that the tooth which fell into his throat ultimately lodged in his lung. There was evidence to show that the plaintiff was in good health before the teeth were extracted and that soon afterwards he had a cough accompanied by a severe pain in his side; that later he became dizzy and felt a numbness in his right arm and leg and was affected by partial loss of speech, and that this condition continued up to the time of the trial except that the condition of his speech had slightly improved.
It appeared that nine weeks after the operation the plaintiff coughed up a tooth which he produced in evidence. He testified that 'his coughing was relieved immediately thereafter.'
The record recites that the plaintiff offered no dental or medical evidence, nor any further evidence to show 'whether the symptoms which it appeared he had were or could have been caused by the tooth.'
The defendant's evidence tended to show that he was a dentist of experience and skill. He also offered expert testimony to show that under the conditions attending the extraction of the plaintiff's teeth, it was not carelessness on his part if a tooth was inhaled by the plaintiff during the operation, but was entirely consistent with due care. Four medical experts called by the defendant testified that in their opinion the plaintiff had two shocks soon after his teeth were extracted; that the symptoms from that time on were consistent with hemiplegia; and that the tooth, wherever it had lodged during the nine weeks, had nothing to do with his condition.
1. The jury properly could not have been instructed that upon the evidence their verdict must be for the defendant. Accordingly the defendant's first request was rightly refused. The jury were not obliged to believe the expert testimony offered by the defendant that to allow the tooth to fall into the plaintiff's throat was consistent with due care, although such testimony was not contradicted. Lindenbaum v. New York, New Haven & Hartford Railroad, 197 Mass. 314, 323, 84 N. E. 129. We are of opinion that the question whether the defendant was negligent in permitting the tooth to be inhaled by the plaintiff when he was in an unconscious condition was for the jury.
2. The defendant's second request was that:
'There is no evidence justifying the jury in finding that the plaintiff's loss of speech, weakened condition of body, partial paralysis and inability to work were in any way caused by the inhaling of his tooth.'
We are of opinion that this instruction, in substance at least, should have been given. The connection between the negligent act of the defendant and the plaintiff's condition afterwards was necessary to be established by a fair preponderance of the evidence in order that he might recover. The burden of proof rested upon the plaintiff to show by competent evidence that his condition after the negligent act of the defendant, if that was established, was the effect in part at least of such negligence. Whether such causal connection existed depended upon proof and could not be left to conjecture or speculation. Lane v. Atlantic Works, 111 Mass. 136, 140. The burden was upon the plaintiff to satisfy the jury that the illness and disabilities from which he has suffered since he was operated upon by the defendant were caused either wholly or in part by the defendant's negligence. Whether these diseases and disabilities could have been the result of inhaling a tooth was not a matter of common knowledge and observation but depended upon affirmative proof. The jury were not bound to believe the expert evidence coming from the defendant's witnesses that the tooth had nothing to do with the plaintiff's condition afterwards; and while this testimony could have been disregarded, still proof was wanting to support the contention that hemiplegia, aphasia, and the plaintiff's weakened condition and inability to work were due to the inhaling of the tooth. In the absence of such evidence, the jury were not warranted in finding that the tooth caused the disabilities with which the plaintiff afterwards was afflicted and for that reason we think that the defendant's second request in substance should have been given. Conley v. United Drug Co., 218 Mass. 238, 241, 105 N. E. 975, L. R. A. 1915D, 830; Sullivan v. Old Colony Street Railway, 197 Mass. 512, 83 N. E. 1091, 125 Am. St. Rep. 378; Williams v. Citizens' Electric Street Railway, 184 Mass. 437, 68 N. E. 840; McGarrahan v. New York, New Haven & Hartford Railroad, 171 Mass. 211, 219, 50 N. E. 610.
Under the instructions of the presiding judge the jury were allowed to determine whether the physical ailments from which they found the plaintiff suffered after the operation, and his present condition, were due to the inhaling of the tooth.
We are of opinion that this instruction was wrong, and that the jury were not justified in finding that the plaintiff's condition after the operation was due to the alleged negligence of the defendant in the absence of any proof to that effect.It follows that the entry must be. Exceptions sustained.
334 Mass. 244
REDDINGTON v. CLAYMAN
Supreme Judicial Court of Massachusetts, Suffolk
Decided June 1, 1956Malpractice action against surgeon who removed child's uvula during oepration for removal of tonsils and adenoids. The Superior Court, Beadreau, J., directed verdict for defendant on all three counts of plaintiff's case, and plaintiff excepted. The Supreme Judicial Court, Whittemore, J., held that evidence was sufficient for jury on question whether surgeon had authority, under circumstances, to remove uvula, and, accordingly, that verdict should not have been directed for defendant on this count.
WHITTEMORE, Justice. The plaintiff, a minor, brought this action of tort against a physician to recover for injuries alleged to have been sustained in the course of an operation for the removal of the plaintiff's tonsils and adenoids. It is undisputed that the plaintiff's uvula was removed in the course of the operation.
The verdicts for the defendant were properly directed on the first two counts which were for negligence. The theory of the plaintiff's case under these counts was negligent removal of the uvula in the course of removing tonsils and adenoids. There was no evidence of unintentional removal of or injury to the uvula. The only relevant testimony on this point was from the defendant. He testified that he intentionally removed the uvula after telling the plaintiff's parents that he would do so and why. There is no evidence that in performing the operation he did not conform to the standard of care required of physicians in the circumstances. Vartanian v. Berman, 311 Mass. 249, 253, 40 N.E.2d 867; Semerjian v. Stetson, 284 Mass. 510, 512-513, 187 N.E. 829; Bouffard v. Canby, 292 Mass. 305, 198 N.E. 253; Chesley v. Durant, 243 Mass. 180, 182, 137 N.E. 301.
If there was, as the plaintiff contends, a violation of the statute in respect of the defendant's maintaining a clinic or dispensary, G.L.(Ter.Ed.) c. 111, § 51, as appearing in St.1943, c. 16, § 1; §§ 52, 56, there was shown no causal relationship between such violation and the complained of acts. Deignan v. Lubarsky, 318 Mass. 661, 664, 63 N.E.2d 575. See cases cited in Milbury v. Turner Centre System, 274 Mass. 358, 363-364, 174 N.E. 471, 73 A.L.R. 1070.
The third count was for unauthorized removal of the uvula. The plaintiff's father testified that the defendant advised removal of the plaintiff's adenoids and tonsils. He denied that he authorized the defendant to remove or touch any other part of his daughter's mouth. The plaintiff's mother testified that a month before the operation the defendant suggested the removal of the plaintiff's tonsils but did not mention adenoids or uvula. The defendant testified that he was a general practitioner who did a great deal of surgery; that he had intentionally removed an uvula two or three times, the last time about ten years before because of a suspicious lesion; that here there was a background of cancer of the throat in the plaintiff's brother, which had 'initiated * * * apparently, in the uvula, and ending in death * * * we do know that some families * * * have more of a tendency * * * to cancer than others; * * * with that history * * * [and] especially where we have an elongated uvula that's causing a continuous hacking cough, where the youngster can't eat well and can't sleep well and is losing weight and has a secondary anemia with it--under those cases, that uvula should and was removed'; and that he removed it 'after he had explained to the child's parents very carefully that the uvula is an elongated substance, a vestigial structure * * * with absolutely no function * * * [and that] it should be removed' there being the stated history of cancer. The defendant testified also that at that time he had read to the plaintiff's mother an article by a throat specialist which proved definitely that the uvula is a remnant tissue with no function and a background for germs. The father testified that a week after the operation he asked the defendant 'what had happened to the child's palate, that 'it was not there" and that the defendant replied that the father 'referred to the uvula; that he had not touched the uvula; that it had shrunk and that it would come back to normal in a few days. * * *'
On the testimony taken most favorably for the plaintiff, the defendant had authority to do whatever was implied in the consent given to remove adenoids and tonsils. It could not be ruled that consent to the removal of the uvula in the circumstances was necessarily implicit in the authority given. There was no medical testimony that it was usual to do this. There was no suggestion that the defendant found anything when operating which made it reasonable then forthwith to remove the uvula as a part of what was being done. On the contrary the defendant stood expressly on what he saw and learned prior to the operation. The little relevant testimony shows the defendant dealing with this as an operative act which was additional to the removal of tonsils and adenoids in usual course and was carefully explained as such to the assenting parents. We think therefore that it was a jury question whether the defendant had authority to remove the uvula and that the verdict was wrongly directed under count 3. Even if there was a lack of evidence, as the defendant contends, of connection between the plaintiff's post-operative troubles and loss of the uvula (and we do not pass on this), the plaintiff was entitled to at least nominal damages for such an unauthorized act. Wood v. Cummings, 197 Mass. 80, 85, 83 N.E. 318.
There was no error in the exclusion of the medical treatises offered by the plaintiff. Under G.L.(Ter.Ed.) c. 233, § 79C, inserted by St.1949, c. 183, § 1, 'A statement of fact or opinion on a subject of science or art contained in a published treatise, periodical, book or pamphlet shall, in the discretion of the court, and if the court finds that it is relevant and that the writer of such statement is recognized in his profession or calling as an expert on the subject, be admissible in actions of contract or tort for malpractice, error or mistake against physicians, surgeons, dentists, optometrists, hospitals and sanitaria, as evidence tending to prove said fact or as opinion evidence; provided, however, that the party intending to offer as evidence any such statement shall, not less than three days before the trial of the action, give the adverse party notice of such intention, stating the name of the writer of the statement and the title of the treatise, periodical, book or pamphlet in which it is contained.' Manifestly the biographical data in the front of the book itself, to which the plaintiff referred, was not a 'statement of fact or opinion on a subject of science or art' and could not serve as the basis of the judge's finding that the writer of a relevant statement in the text has the required professional standing. See Wigmore, Evidence (3d ed.) § 1694.
The offer of the Directory of Medical Specialists and of an English edition of Who's Who (1946) to vouch the professional standing of the authors and the text was not supported by § 79C for the reasons stated. There is no basis for asking the court to take judicial notice of these books, Mady v. Holy Trinity Roman Catholic Polish Church, 223 Mass. 23, 26, 111 N.E. 413; Petition of Duarte, 331 Mass. 747, 122 N.E.2d 890. These books were not offered below under G.L.(Ter.Ed.) c. 233, § 79B, inserted by St.1947, c. 385, § 1, Rothwell v. First National Bank, 286 Mass. 417, 422, 190 N.E. 812; Mendelsohn v. Leather Mfg. Corp., 326 Mass. 226, 238, 93 N.E.2d 537, so there was no opportunity for the judge to make the necessary preliminary findings under that statute that they were compilations issued to the public and published for the use of persons engaged in the particular occupation and commonly used and relied on. Such compilations conceivably might by their own statements show that they are issued to the public for a stated use, but it would appear necessary, at least in the usual case, that there be some independent evidence that they are commonly used and relied on to permit such a finding to be made. See Boston Consolidated Gas Co. v. Department of Public Utilities, 327 Mass. 103, 108, 97 N.E.2d 521, and master's report in the original papers; Wigmore, Evidence (3d ed.) §§ 1694, 1706, and cases cited.
Exception to direction of a verdict under count 3 sustained: all other exceptions overruled.
99 Wash.2d 609
HERSKOVITS v. GROUP HEALTH COOPERATIVE OF PUGET SOUND
Supreme Court of Washington, En Banc.
May 26, 1983.Personal representative of estate initiated survivorship action alleging defendant's failure to make an early diagnosis of decedent's lung cancer. Defendant moved for summary judgment. The Superior Court, King County, Lee Kraft, J., granted motion, and appeal was taken. The Supreme Court, Dore, J., held that a 14% reduction, from 39% to 25%, in decedent's chance for survival was sufficient evidence of causation to allow jury to consider possibility that physician's failure to timely diagnose illness was the proximate cause of his death. Reversed.
DORE, Justice. This appeal raises the issue of whether an estate can maintain an action for professional negligence as a result of failure to timely diagnose lung cancer, where the estate can show probable reduction in statistical chance for survival but cannot show and/or prove that with timely diagnosis and treatment, decedent probably would have lived to normal life expectancy.
Both counsel advised that for the purpose of this appeal we are to assume that the respondent Group Health Cooperative of Puget Sound and Dr. William Spencer negligently failed to diagnose Herskovits' cancer on his first visit to the hospital and proximately caused at 14 percent reduction in his chances of survival. It is undisputed that Herskovits had less than a 50 percent chance of survival at all times herein.
The main issue we will address in this opinion is whether a patient, with less than a 50 percent chance of survival, has a cause of action against the hospital and its employees if they are negligent in diagnosing a lung cancer which reduces his chances of survival by 14 percent.
The personal representative of Leslie Herskovits' estate initiated this survivorship action against Group Health Cooperative of Puget Sound (Group Health), alleging failure to make an early diagnosis of her husband's lung cancer. Group Health moved for summary judgment for dismissal on the basis that Herskovits probably would have died from lung cancer even if the diagnosis had been made earlier, which the trial court granted.
I
The complaint alleged that Herskovits came to Group Health Hospital in 1974 with complaints of pain and coughing. In early 1974, chest x-rays revealed infiltrate in the left lung. Rales and coughing were present. In mid-1974, there were chest pains and coughing, which became persistent and chronic by fall of 1974. A December 5, 1974 entry in the medical records confirms the cough problem. Plaintiff contends that Herskovits was treated thereafter only with cough medicine. No further effort or inquiry was made by Group Health concerning his symptoms, other than an occasional chest x-ray. In the early spring of 1975, Mr. and Mrs. Herskovits went south in the hope that the warm weather would help. Upon his return to the Seattle area with no improvement in his health, Herskovits visited Dr. Jonathan Ostrow on a private basis for another medical opinion. Within 3 weeks, Dr. Ostrow's evaluation and direction to Group Health led to the diagnosis of cancer. In July of 1975, Herskovits' lung was removed, but no radiation or chemotherapy treatments were instituted. Herskovits died 20 months later, on March 22, 1977, at the age of 60.
At hearing on the motion for summary judgment, plaintiff was unable to produce expert testimony that the delay in diagnosis "probably" or "more likely than not" caused her husband's death. The affidavit and deposition of plaintiff's expert witness, Dr. Jonathan Ostrow, construed in the most favorable light possible to plaintiff, indicated that had the diagnosis of lung cancer been made in December 1974, the patient's possibility of 5-year survival was 39 percent. At the time of initial diagnosis of cancer 6 months later, the possibility of a 5-year survival was reduced to 25 percent. Dr. Ostrow testified he felt a diagnosis perhaps could have been made as early as December 1974, or January 1975, about 6 months before the surgery to remove Mr. Herskovits' lung in June 1975.
Dr. Ostrow testified that if the tumor was a "stage 1" tumor in December 1974, Herskovits' chance of a 5-year survival would have been 39 percent. In June 1975, his chances of survival were 25 percent assuming the tumor had progressed to "stage 2". Thus, the delay in diagnosis may have reduced the chance of a 5- year survival by 14 percent.
Dr. William Spencer, the physician from Group Health Hospital who cared for the deceased Herskovits, testified that in his opinion, based upon a reasonable medical probability, earlier diagnosis of the lung cancer that afflicted Herskovits would not have prevented his death, nor would it have lengthened his life. He testified that nothing the doctors at Group Health could have done would have prevented Herskovits' death, as death within several years is a virtual certainty with this type of lung cancer regardless of how early the diagnosis is made.
Plaintiff contends that medical testimony of a reduction of chance of survival from 39 percent to 25 percent is sufficient evidence to allow the proximate cause issue to go to the jury. Defendant Group Health argues conversely that Washington law does not permit such testimony on the issue of medical causation and requires that medical testimony must be at least sufficiently definite to establish that the act complained of "probably" or "more likely than not" caused the subsequent disability. It is Group Health's contention that plaintiff must prove that Herskovits "probably" would have survived had the defendant not been allegedly negligent; that is, the plaintiff must prove there was at least a 51 percent chance of survival.
Pursuant to CR 56(c), summary judgment is appropriate only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. All reasonable inferences from the evidence must be resolved against the moving party, and in favor of the nonmoving party. Lamon v. McDonnell Douglas Corp., 91 Wash.2d 345, 588 P.2d 1346 (1979).
II
This court has held that a person who negligently renders aid and consequently increases the risk of harm to those he is trying to assist is liable for any physical damages he causes. Brown v. MacPherson's, Inc., 86 Wash.2d 293, 299, 545 P.2d 13 (1975). In Brown, the court cited Restatement (Second) of Torts § 323 (1965), which reads:
One who undertakes ... to render services to another which he should recognize as necessary for the protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, ...
This court heretofore has not faced the issue of whether, under § 323(a), proof that the defendant's conduct increased the risk of death by decreasing the chances of survival is sufficient to take the issue of proximate cause to the jury. Some courts in other jurisdictions have allowed the proximate cause issue to go to the jury on this type of proof. See McBride v. United States, 462 F.2d 72 (9th Cir.1972); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); Kallenberg v. Beth Israel Hosp., 45 A.D.2d 177, 357 N.Y.S.2d 508 (1974); Jeanes v. Milner, 428 F.2d 598 (8th Cir.1970); Hicks v. United States, 368 F.2d 626 (4th Cir.1966). These courts emphasized the fact that defendants' conduct deprived the decedents of a "significant" chance to survive or recover, rather than requiring proof that with absolute certainty the defendants' conduct caused the physical injury. The underlying reason is that it is not for the wrongdoer, who put the possibility of recovery beyond realization, to say afterward that the result was inevitable. See also Wolfstone & Wolfstone, Recovery of Damages for the Loss of a Chance, Personal Injury Annual 744 (1978).
Other jurisdictions have rejected this approach, generally holding that unless the plaintiff is able to show that it was more likely than not that the harm was caused by the defendant's negligence, proof of a decreased chance of survival is not enough to take the proximate cause question to the jury. Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio St.2d 242, 272 N.E.2d 97 (1971); Hiser v. Randolph, 126 Ariz. 608, 617 P.2d 774 (Ct.App.1980); Hanselmann v. McCardle, 275 S.C. 46, 267 S.E.2d 531 (1980); Cornfeldt v. Tongen, 295 N.W.2d 638 (Minn.1980). These courts have concluded that the defendant should not be liable where the decedent more than likely would have died anyway.
The ultimate question raised here is whether the relationship between the increased risk of harm and Herskovits' death is sufficient to hold Group Health responsible. Is a 36 percent (from 39 percent to 25 percent) reduction in the decedent's chance for survival sufficient evidence of causation to allow the jury to consider the possibility that the physician's failure to timely diagnose the illness was the proximate cause of his death? We answer in the affirmative. To decide otherwise would be a blanket release from liability for doctors and hospitals any time there was less than a 50 percent chance of survival, regardless of how flagrant the negligence.
III
We are persuaded by the reasoning of the Pennsylvania Supreme Court in Hamil v. Bashline, supra. While Hamil involved an original survival chance of greater than 50 percent, we find the rationale used by the Hamil court to apply equally to cases such as the present one, where the original survival chance is less than 50 percent. The plaintiff's decedent was suffering from severe chest pains. His wife transported him to the hospital where he was negligently treated in the emergency unit. The wife, because of the lack of help, took her husband to a private physician's office, where he died. In an action brought under the wrongful death and survivorship statutes, the main medical witness testified that if the hospital had employed proper treatment, the decedent would have had a substantial chance of surviving the attack. The medical expert expressed his opinion in terms of a 75 percent chance of survival. It was also the doctor's opinion that the substantial loss of a chance of recovery was the result of the defendant hospital's failure to provide prompt treatment. The defendant's expert witness testified that the patient would have died regardless of any treatment provided by the defendant hospital.
The Hamil court reiterated the oft-repeated principle of tort law that the mere occurrence of an injury does not prove negligence, but the defendant's conduct must be a proximate cause of the plaintiff's injury. The court also referred to the traditional "but for" test, with the qualification that multiple causes may culminate in injury. Hamil, 481 Pa. at 266, 392 A.2d 1280.
The court then cited Restatement (Second) of Torts § 323 (1965) as authority to relax the degree of certitude normally required of plaintiff's evidence in order to make a case for the jury. The court held that once a plaintiff has introduced evidence that a defendant's negligent act or omission increased the risk of harm to a person in plaintiff's position, and that the harm was in fact sustained, "it becomes a question for the jury as to whether or not that increased risk was a substantial factor in producing the harm". Hamil, 481 Pa. at 269, 392 A.2d 1280. See also C. McCormick, Damages § 31 (1935); Wolfstone & Wolfstone, supra at 744.
The Hamil court distinguished the facts of that case from the general tort case in which a plaintiff alleges that a defendant's act or omission set in motion a force which resulted in harm. In the typical tort case, the "but for" test, requiring proof that damages or death probably would not have occurred "but for" the negligent conduct of the defendant, is appropriate. In Hamil and the instant case, however, the defendant's act or omission failed in a duty to protect against harm from another source. Thus, as the Hamil court noted, the fact finder is put in the position of having to consider not only what did occur, but also what might have occurred. Hamil states at 271, 392 A.2d 1280:
Such cases by their very nature elude the degree of certainty one would prefer and upon which the law normally insists before a person may be held liable. Nevertheless, in order that an actor is not completely insulated because of uncertainties as to the consequences of his negligent conduct, Section 323(a) tacitly acknowledges this difficulty and permits the issue to go to the jury upon a less than normal threshold of proof.
(Footnote omitted.) The Hamil court held that once a plaintiff has demonstrated that the defendant's acts or omissions have increased the risk of harm to another, such evidence furnishes a basis for the jury to make a determination as to whether such increased risk was in turn a substantial factor in bringing about the resultant harm.
In Hicks v. United States, supra, the Court of Appeals set forth the rationale for deviation from the normal requirements of proof in a case such as the one presently before us. The following quotation from Hicks, at 632, is frequently cited in cases adopting loss of a chance because it succinctly defines the doctrine:
Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly.
Under the Hamil decision, once a plaintiff has demonstrated that defendant's acts or omissions in a situation to which § 323(a) applies have increased the risk of harm to another, such evidence furnishes a basis for the fact finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm. The necessary proximate cause will be established if the jury finds such cause. It is not necessary for a plaintiff to introduce evidence to establish that the negligence resulted in the injury or death, but simply that the negligence increased the risk of injury or death. The step from the increased risk to causation is one for the jury to make. Hamil, 481 Pa. at 272, 392 A.2d 1280.
In Jeanes v. Milner, supra, the plaintiff mother brought a malpractice action for the death of her child from throat cancer, claiming delayed diagnosis of 1 month caused a shortened life span and pain and suffering. The United States Court of Appeals for the Eighth Circuit, reversing a dismissal for insufficient evidence on the element of proximate cause, held at 604-05:
We cannot agree with the District Court's holding that "there is no evidence from which the jury could find that the delay of approximately one month in the transmission of [the] slides could have been the proximate cause of [Tommy's] failure to recover from his cancer, or to increase his pain and suffering or to shorten his life." Nor can we agree that the jury could "only find a verdict for the plaintiff based on speculation and conjecture."
* * *
The Supreme Court of the United States has spoken to a contention similar to that argued here by the doctors and the Infirmary. In Lavender v. Kurn, 327 U.S. 645, 653, 66 S.Ct. 740 [744], 90 L.Ed. 916 (1946), the Court stated:
"It is no answer to say that the jury's verdict involved speculation and conjecture. Whenever facts are in dispute or the evidence is such that fair- minded men may draw different inferences, a measure of speculation and conjecture is required on the part of those whose duty it is to settle the dispute by choosing what seems to them to be the most reasonable inference."
The recent case of James v. United States, 483 F.Supp. 581 (N.D.Cal.1980), concerned the failure to diagnose and promptly treat a lung tumor. The court concluded that the plaintiff sustained its burden of proof even without statistical evidence, stating at 587:
As a proximate result of defendant's negligence, James was deprived of the opportunity to receive early treatment and the chance of realizing any resulting gain in his life expectancy and physical and mental comfort. No matter how small that chance may have been--and its magnitude cannot be ascertained--no one can say that the chance of prolonging one's life or decreasing suffering is valueless.
(Italics ours.)
Where percentage probabilities and decreased probabilities are submitted into evidence, there is simply no danger of speculation on the part of the jury. More speculation is involved in requiring the medical expert to testify as to what would have happened had the defendant not been negligent. McCormick, supra.
Chester v. United States, 403 F.Supp. 458, 460 (W.D.Penn.1975) was a medical malpractice suit for negligent failure to diagnose and treat cancer of the esophagus. The court found that in November 1972, the **479 decedent was exhibiting symptoms and complaints that were consistent with cancer. No tests were performed to determine what was causing the illness, and the court determined this was below the accepted medical standard of care. Further, the judge decided that the cancer was indeed present in November 1972, and could have been treated or resected before metastasis. The judge reasoned that, if there was a possibility that the decedent had carcinoma of the esophagus, the hospital doctors were negligent in treating him for hypertension only.
The Chester court then awarded damages of $45,988.10, including $36,741.10 for loss of earning power, $7,500.00 for the loss of guidance, etc. for his minor children, and $1,747.00 for funeral expenses. This damage award is, consistent with our reasoning in Wooldridge v. Woolett, 96 Wash.2d 659, 638 P.2d 566 (1981), where we held that a decedent's shortened life expectancy is not recoverable as a separate item of damages, but will be considered as it affects the loss of value of his future earning capacity.
CONCLUSION
Both counsel have agreed for the purpose of arguing this summary judgment, that the defendants were negligent in failing to make a diagnosis of cancer on Herskovits' initial visit in December 1974, and that such negligence was the proximate cause of reducing his chances of survival by 14 percent. It is undisputed that Herskovits had less than a 50 percent chance of survival at that time. Based on this agreement and Dr. Ostrow's deposition and affidavit, a prima facie case is shown. We reject Group Health's argument that plaintiffs must show that Herskovits "probably" would have had a 51 percent chance of survival if the hospital had not been negligent. We hold that medical testimony of a reduction of chance of survival from 39 percent to 25 percent is sufficient evidence to allow the proximate cause issue to go to the jury.
Causing reduction of the opportunity to recover (loss of chance) by one's negligence, however, does not necessitate a total recovery against the negligent party for all damages caused by the victim's death. Damages should be awarded to the injured party or his family based only on damages caused directly by premature death, such as lost earnings and additional medical expenses, etc.
We reverse the trial court and reinstate the cause of action.
ROSELLINI, J., concurs.
PEARSON, Justice (concurring).
I agree with the majority that the trial court erred in granting defendant's motion for summary judgment. I cannot, however, agree with the majority's reasoning in reaching this decision. The majority's reliance on Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978) and Hicks v. United States, 368 F.2d 626 (4th Cir.1966) is inappropriate for the reasons identified in the dissent of Justice Dolliver. Moreover, the issue before us is considerably more complex than the apparently straightforward policy choice suggested by the interaction of the majority opinion and Justice Dolliver's dissent. I therefore agree with Justice Brachtenbach that those opinions fail to focus on the key issue. I decline to join Justice Brachtenbach's dissent, however, because the result he advocates is harsh, as he recognizes at page 491. In an effort to achieve a fair result by means of sound analysis, I offer the following approach.
This action began in July 1979 with a complaint alleging that defendant Group Health Cooperative had negligently treated the decedent Leslie Herskovits. Plaintiff, the widow of decedent Herskovits, alleged in this complaint that defendant's failure to diagnose the decedent's lung cancer "led to and caused his death". The complaint sought damages for the medical expenses, disability, and pain and suffering of the decedent, together with pecuniary loss suffered by plaintiff, including loss of support, affection, and consortium.
As discovery progressed, some undisputed facts were established. Mr. Herskovits had been a patient of the Group Health Cooperative for more than 20 years. In December 1974, he consulted a physician at Group Health for the treatment of a persistent cough. The physician prescribed cough medicine. Obtaining no relief from his cough, Mr. Herskovits consulted a physician outside Group Health, Dr. Jonathan Ostrow. Dr. Ostrow suspected that Mr. Herskovits had lung cancer, and recommended a medical procedure be undertaken to confirm his suspicions. The procedure was performed in June 1975, and revealed that Mr. Herskovits had cancer in the bronchus of his left lung. The lung was removed on July 1, 1975. Mr. Herskovits died of cancer on March 22, 1977, at the age of 60 years.
Defendant moved for summary judgment in May 1981, on the ground that plaintiff was unable to produce testimony that earlier diagnosis would probably have prevented Mr. Herskovits' death from cancer. The trial court granted the motion and dismissed the action, holding that plaintiff had "failed to produce expert testimony which would establish that the decedent probably would not have died on or about March, 1977 but for the conduct of the defendant". This holding was based on the court's conclusion that "under Washington law the loss of a possibility of survival is not compensable".
Plaintiff's case was based on the testimony of the expert witness, Dr. Ostrow. This court's enquiry, therefore, is whether Dr. Ostrow's testimony, together with reasonable inferences therefrom, creates a prima facie issue of causation. Lamon v. McDonnell Douglas Corp., 91 Wash.2d 345, 588 P.2d 1346 (1979). The critical testimony of Dr. Ostrow, from his affidavit and deposition, may fairly be summarized as follows:
1. There is a reasonable medical probability that defendant failed to take necessary steps to diagnose Mr. Herskovits' condition, and defendant therefore failed to meet the appropriate standard of care.
2. Had reasonable care been exercised, Mr. Herskovits' cancer could have been diagnosed in December 1974 instead of June 1975.
3. Unless removed, a cancerous tumor can be expected to increase in size over time, and the patient's chances of survival decline accordingly.
4. There is no way of knowing how far the tumor in Mr. Herskovits' lung had developed by December 1974.
5. If the tumor had been a Stage 1 tumor in December 1974, decedent's statistical chance of surviving 5 years was 39 percent.
6. When the tumor was discovered in June 1975, it was a Stage 2 tumor. The statistical chance of surviving 5 years when the tumor has reached Stage 2 is 25 percent.
7. Dr. Ostrow summed up his opinion as follows: "By failing to properly evaluate Mr. Herskovits' condition as late as December 1974, Group Health probably caused Mr. Herskovits' chance for long-term survival to be substantially reduced".
Dr. Ostrow's testimony does not, therefore, establish a prima facie case that defendant's alleged negligence probably (or more likely than not) caused Mr. Herskovits' death. Rather, the testimony establishes only that the alleged negligence caused a substantial reduction in Mr. Herskovits' long-term chance of survival. Dr. Ostrow testified that if the tumor was at Stage 1 in December 1974, the chance of survival was reduced from 39 percent to 25 percent. He did not, however, indicate the likelihood of the tumor's being at Stage 1 in December 1974, either in terms of certainty, probability, or statistical chance. Therefore, the only indications from the record of the extent of the reduction in Mr. Herskovits' chance of long-term survival are that it was "substantial" and that it was at most a 14 percent reduction (from 39 percent to 25 percent).
I turn now to consider whether this testimony is sufficient to create a material issue whether defendant's alleged negligence was a proximate cause of harm to plaintiff.
Recently, we stated that
[p]roximate cause must be established by, first, a showing that the breach of duty was a cause in fact of the injury, and, second, a showing that as a matter of law liability should attach.... Cause in fact can be established by proving that but for the breach of duty, the injury would not have occurred.
Harbeson v. Parke-Davis, Inc., 98 Wash.2d 460, 656 P.2d 483 (1983). In the present case, we must determine whether cause in fact has been established.
In medical malpractice cases such as the one before us, cause in fact must usually be established by expert medical testimony, and must be established beyond the balance of probabilities.
In a case such as this, medical testimony must be relied upon to establish the causal relationship between the liability-producing situation and the claimed physical disability resulting therefrom. The evidence will be deemed insufficient to support the jury's verdict, if it can be said that considering the whole of the medical testimony the jury must resort to speculation or conjecture in determining such causal relationship. In many recent decisions of this court we have held that such determination is deemed based on speculation and conjecture if the medical testimony does not go beyond the expression of an opinion that the physical disability "might have" or "possibly did" result from the hypothesized cause. To remove the issue from the realm of speculation, the medical testimony must at least be sufficiently definite to establish that the act complained of "probably" or "more likely than not" caused the subsequent disability.
O'Donoghue v. Riggs, 73 Wash.2d 814, 824, 440 P.2d 823 (1968).
The issue before the court, quite simply, is whether Dr. Ostrow's testimony satisfies the standard enunciated in O'Donoghue. We must decide whether Dr. Ostrow's testimony established that the act complained of (the alleged delay in diagnosis) "probably" or "more likely than not" caused Mr. Herskovits' subsequent disability. In order to make this determination, we must first define the "subsequent disability" suffered by Mr. Herskovits. Therein lies the crux of this case, for it is possible to define the injury or "disability" to Mr. Herskovits in at least two different ways. First, and most obviously, the injury to Mr. Herskovits might be viewed as his death. Alternatively, however, the injury or disability may be seen as the reduction of Mr. Herskovits' chance of surviving the cancer from which he suffered.
Therefore, although the issue before us is primarily one of causation, resolution of that issue requires us to identify the nature of the injury to the decedent. Our conception of the injury will substantially affect our analysis. If the injury is determined to be the death of Mr. Herskovits, then under the established principles of proximate cause plaintiff has failed to make a prima facie case. Dr. Ostrow was unable to state that probably, or more likely than not, Mr. Herskovits' death was caused by defendant's negligence. On the contrary, it is clear from Dr. Ostrow's testimony that Mr. Herskovits would have probably died from cancer even with the exercise of reasonable care by defendant. Accordingly, if we perceive the death of Mr. Herskovits as the injury in this case, we must affirm the trial court, unless we determine that it is proper to depart substantially from the traditional requirements of establishing proximate cause in this type of case.
If, on the other hand, we view the injury to be the reduction of Mr. Herskovits' chance of survival, our analysis might well be different. Dr. Ostrow testified that the failure to diagnose cancer in December 1974 probably caused a substantial reduction in Mr. Herskovits' chance of survival. The O'Donoghue v. Riggs standard of proof is therefore met.
I note here that two other problems are created by the latter analysis. First, we have never before considered whether the loss or reduction of a chance of survival is a compensable injury. And second, this analysis raises the issue of whether an action for reduction of the chance of survival can be brought under the wrongful death statute, RCW 4.20.010.
Confronted with these problems, and with the first impression choice between the two approaches to the issue before us, I turn to consider how other jurisdictions have dealt with similar cases.
One approach, and that urged by defendant, is to deny recovery in wrongful death cases unless the plaintiff establishes that decedent would probably have survived but for defendant's negligence. This approach is typified by Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio St.2d 242, 272 N.E.2d 97 (1971). The court in that case affirmed a directed verdict for defendant where the only evidence of causation was that decedent had a chance "maybe some place around 50%" of survival had defendant not been negligent. The court said in 27 Ohio St.2d at 253-54, 272 N.E.2d 97: In an action for wrongful death, where medical malpractice is alleged as the proximate cause of death, and plaintiff's evidence indicates that a failure to diagnose the injury prevented the patient from an opportunity to be operated on, which failure eliminated any chance of the patient's survival, the issue of proximate cause can be submitted to a jury only if there is sufficient evidence showing that with proper diagnosis, treatment and surgery the patient probably would have survived.
This case was followed in Hiser v. Randolph, 126 Ariz. 608, 617 P.2d 774 (1980). The Arizona court explicitly rejected both Hamil v. Bashline and Hicks v. United States (the leading cases cited by plaintiffs in the case before us) and agreed with Cooper that "the mere loss of an unspecified increment of the chance for survival is, of itself, insufficient to meet the standard of probability". 126 Ariz. at 613, 617 P.2d 774.
On the other hand, plaintiff cites seven cases in support of her position. Hicks v. United States, 368 F.2d 626 (4th Cir.1966); Jeanes v. Milner, 428 F.2d 598 (8th Cir.1970); O'Brien v. Stover, 443 F.2d 1013 (8th Cir.1971); McBride v. United States, 462 F.2d 72 (9th Cir.1972); Kallenberg v. Beth Israel Hosp., 45 A.D.2d 177, 357 N.Y.S.2d 508, aff'd, 37 N.Y.2d 719, 337 N.E.2d 128, 374 N.Y.S.2d 615 (1974); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); James v. United States, 483 F.Supp. 581 (N.D.Cal.1980). The complexity of the issue and elusive nature of the rationales of these opinions persuade me to discuss them at some length.
The first case, Hicks, was an action under the Federal Tort Claims Act, to recover damages for the death of a 25-year-old woman from an undiagnosed bowel obstruction. The uncontradicted testimony of the plaintiff's experts was that "if operated on promptly, [the patient] would have survived". 368 F.2d at 632.
The District Court, construing the laws of Virginia, concluded that there was insufficient evidence that the concededly erroneous diagnosis was a proximate cause of the woman's death. The defendant urged the Court of Appeals to affirm the District Court, arguing that even had surgery been performed immediately, it was mere speculation to say that it would have been successful. The Court of Appeals rejected the argument and in what has become an oft-quoted passage said:
When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he has put beyond the possibility of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly. Harvey v. Silber, 300 Mich. 510, 2 N.W.2d 483 (1942).
368 F.2d at 632. The court in Hicks also drew an analogy to another federal case which imposed liability on a ship's master for failing to attempt to rescue a seaman who had fallen overboard. Gardner v. National Bulk Carriers, Inc., 310 F.2d 284, 91 A.L.R.2d 1023 (4th Cir.1962). The court in Gardner rejected the argument that any breach of duty by the ship's master was not a cause of the seaman's death. It held that once the evidence sustained the reasonable possibility of rescue, total disregard of the duty imposed liability.
The court in Hicks v. United States concluded its opinion with the observation that the defendant's "negligence nullified whatever chance of recovery [the patient] might have had and was the proximate cause of the death". 368 F.2d at 633.
Hicks is susceptible to two interpretations. On one hand, the court's use of phrases like "substantial possibility of survival" (368 F.2d at 632) and "whatever chance of recovery" (368 F.2d at 633) suggests that a less than 50 percent chance of survival would create a prima facie case of proximate cause. The analogy to the duty of a ship's master reinforces the suggestion that only a "reasonable possibility" of survival need be established. Gardner v. National Bulk Carriers, Inc., 310 F.2d at 287.
On the other hand, however, the court had no need to decide such a broad question. There was uncontroverted testimony before the court that the decedent would have survived if operated upon promptly. At the very least, this testimony would establish a probability of survival. All the court had to decide, therefore, was that causation was established by a showing that an operation probably (rather than certainly) would have saved the patient's life. Two passages in the opinion seem to confirm that this is the rationale of the case. First, the court, in the passage quoted above, said that "[t]he law does not ... require the plaintiff to show to a certainty that the patient would have lived". 368 F.2d at 632. Second, the court, in explaining the similarity between Harvey v. Silber, 300 Mich. 510, 2 N.W.2d 483 (1942), and the facts before it, points out that in Harvey there was testimony to the effect that an operation would probably have saved the decedent's life, and this was sufficient to establish proximate cause. 368 F.2d at 632 n. 2.
Hicks v. United States, therefore, appears to be authority for no more than the proposition that proximate cause may be established on a probability of survival. This, of course, is entirely consistent with the existing principles of this state under O'Donoghue v. Riggs, and provides little direct support for plaintiff in the present case.
Subsequent cases, however, have relied on the expansive dicta in Hicks to allow recovery for the reduction of a less than probable chance of survival. The first such case was Jeanes v. Milner, 428 F.2d 598 (8th Cir.1970). This was a malpractice action brought by the mother of a 13-year-old boy who died of throat cancer. The plaintiff alleged that the defendant's negligence had delayed diagnosis of the cancer for over a month. The plaintiff presented expert testimony that during that month the decedent's cancer had progressed from Stage 1 to Stage 2. Testimony also indicated that patients whose cancer is diagnosed at Stage 1 have a statistical survival rate of 35 percent; patients at Stage 2 have a survival rate of 24 percent.
The Court of Appeals, reversing the District Court, held that this was sufficient evidence from which to infer that the patient's "life would have been saved or at least prolonged and his pain lessened had he received early treatment." 428 F.2d at 604. This conclusion was supported by reference to Hicks, which was described as "persuasive". 428 F.2d at 605.
Both Jeanes and Hicks were cited in another case from the Eighth Circuit in which the plaintiff alleged a negligent delay in the diagnosis of cancer. O'Brien v. Stover, 443 F.2d 1013 (8th Cir.1971). Causation was apparently established in O'Brien by testimony that "there is an overall 30 per cent survival rate from this type of cancer and that chance is considerably improved the earlier the cancer is discovered". 443 F.2d at 1018. Among the elements of damages which the court approved was reduction of the patient's "chances for survival, or at least living longer and more comfortably". 443 F.2d at 1019.
The fourth case cited by plaintiff, McBride v. United States, is based upon the proposition that
When a plaintiff's cause of action rests upon an allegedly negligent failure to give necessary treatment, he must show, with reasonable medical probability, that the treatment would have successfully prevented the patient's injury.
462 F.2d at 75. This is the rationale also of Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio St.2d 242, 272 N.E.2d 97 (1971), and clearly of no assistance to plaintiff in the case before us.
The fifth case, Kallenberg v. Beth Israel Hosp., is a more extreme approach. The Appellate Division of the New York Supreme Court upheld a jury verdict of $55,000 in a wrongful death action. The jury had heard testimony from the plaintiff's witness that defendant's negligence was a "producing, contributing factor" in the death and further that " 'if properly treated ... the patient still [would have had] a 20, say 30, maybe 40% chance of survival' ". 45 A.D.2d at 179, 357 N.Y.S.2d 508. The appellate court noted that proximate cause is a jury question and concluded, without citing authority, that the testimony reviewed was sufficient for the jury to find that, but for the defendant's negligence, the decedent might have made a recovery.
Plaintiff relies most heavily on the next case, Hamil v. Bashline. This was a wrongful death action based upon the alleged negligence of the defendant hospital's failure to treat the decedent, who subsequently died of a heart attack. An expert witness for the plaintiff testified that had the decedent received reasonable treatment he would have had a 75 percent chance of surviving the heart attack he was experiencing when admitted to the hospital. The defendant argued that the plaintiff had failed to establish a prima facie case because no testimony was introduced to show that the defendant's negligence did, to a reasonable degree of medical certainty, cause decedent's death.
The Supreme Court of Pennsylvania acknowledged that the general principles of tort law in that state required that expert testimony "establish that the injury in question did, with a reasonable degree of medical certainty, stem from the negligent act alleged". 481 Pa. at 267, 392 A.2d 1280. The court recognized an exception to this heavy burden of proof, in situations governed by Restatement (Second) of Torts § 323(a) (1965). The court said in 481 Pa. at 269-70, 392 A.2d 1280:
Section 323(a) recognizes that a particular class of tort actions, of which the case at bar is an example, differs from those cases normally sounding in tort. Whereas typically a plaintiff alleges that a defendant's act or omission set in motion a force which resulted in harm, the theory of the present case is that the defendant's act or omission failed in a duty to protect against harm from another source. To resolve such a claim a fact-finder must consider not only what did occur, but also what might have occurred, i.e., whether the harm would have resulted from the independent source even if defendant had performed his service in a non-negligent manner. Such a determination as to what might have happened necessarily requires a weighing of probabilities.
(Footnote omitted.) The court then quoted the ubiquitous passage from Hicks v. United States and observed:
We agree with this statement of the law and hold that once a plaintiff has demonstrated that defendant's acts or omissions, in a situation to which Section 323(a) applies, have increased the risk of harm to another, such evidence furnishes a basis for the fact-finder to go further and find that such increased risk was in turn a substantial factor in bringing about the resultant harm; the necessary proximate cause will have been made out if the jury sees fit to find cause in fact.
(Footnote omitted.) 481 Pa. at 272, 392 A.2d 1280. In a footnote the court elaborated upon the manner in which the plaintiff must demonstrate that the defendant's acts or omissions increased the risk of harm to the plaintiff. In this footnote, the court quotes from comment a to Restatement (Second) of Torts § 433B(1), to the effect that the plaintiff must establish by a preponderance of the evidence that the conduct of the defendant was a substantial factor in bringing about the harm to the plaintiff. The court continues:
In the instant case, Dr. Wecht testified to a 75% chance of recovery had prompt treatment been administered to Mr. Hamil by Bashline; this was sufficient basis upon which the jury could have concluded that it was more likely than not that the defendant's omissions were a substantial factor in causing Mr. Hamil's death. Of course, as was done here, a defendant may present expert testimony to the opposite effect, i.e., the unlikelihood of survival even had the defendant exercised due care; as always, resolution of conflicting testimony is for the jury.
481 Pa. at 272 n. 9, 392 A.2d 1280.
It is clear that Hamil, like Hicks and McBride, stands for no more than a rejection of a reasonable certainty standard of proof, and an acceptance of a reasonable probability standard. Viewed thus, it advances plaintiff's case very little.
The final case cited by plaintiff is James v. United States, 483 F.Supp. 581 (N.D.Cal.1980). In that case, the District Court held that plaintiff's failure to establish a statistically measurable chance of survival did not rule out recovery. The court said, without citing authority:
As a proximate result of defendant's negligence, [the decedent] was deprived of the opportunity to receive early treatment and the chance of realizing any resulting gain in his life expectancy and physical and mental comfort. No matter how small that chance may have been--and its magnitude cannot be ascertained--no one can say that the chance of prolonging one's life or decreasing suffering is valueless.
483 F.Supp. at 587.
This decision goes well beyond any of the other cases, allowing recovery for the loss of any chance, no matter how small.
Having concluded this somewhat detailed survey of the cases cited by plaintiff, what conclusions can we draw? First, the critical element in each of the cases is that the defendant's negligence either deprived a decedent of a chance of surviving a potentially fatal condition or reduced that chance. To summarize, in Hicks v. United States the decedent was deprived of a probability of survival; in Jeanes v. Milner the decedent's chance of survival was reduced from 35 percent to 24 percent; in O'Brien v. Stover, the decedent's 30 percent chance of survival was reduced by an indeterminate amount; in McBride v. United States the decedent was deprived of the probability of survival; in Kallenberg v. Beth Israel Hosp. the decedent was deprived of a 20 percent to 40 percent chance of survival; in Hamil v. Bashline the decedent was deprived of a 75 percent chance of survival; and in James v. United States the decedent was deprived of an indeterminate chance of survival, no matter how small.
The three cases where the chance of survival was greater than 50 percent (Hicks, McBride, and Hamil ) are unexceptional in that they focus on the death of the decedent as the injury, and they require proximate cause to be shown beyond the balance of probabilities. Such a result is consistent with existing principles in this state, and with cases from other jurisdictions cited by defendant.
The remaining four cases allowed recovery despite the plaintiffs' failure to prove a probability of survival. Three of these cases (Jeanes, O'Brien, and James ) differ significantly from the Hicks, McBride, and Hamil group in that they view the reduction in or loss of the chance of survival, rather than the death itself, as the injury. Under these cases, the defendant is liable, not for all damages arising from the death, but only for damages to the extent of the diminished or lost chance of survival. The fourth of these cases, Kallenberg, differs from the other three in that it focuses on the death as the compensable injury. This is clearly a distortion of traditional principles of proximate causation. In effect, Kallenberg held that a 40 percent possibility of causation (rather than the 51 percent required by a probability standard) was sufficient to establish liability for the death. Under this loosened standard of proof of causation, the defendant would be liable for all damages resulting from the death for which he was at most 40 percent responsible.
My review of these cases persuades me that the preferable approach to the problem before us is that taken (at least implicitly) in Jeanes, O'Brien, and James. I acknowledge that the principal predicate for these cases is the passage of obiter dictum in Hicks, a case which more directly supports the defendant's position. I am nevertheless convinced that these cases reflect a trend to the most rational, least arbitrary, rule by which to regulate cases of this kind. I am persuaded to this conclusion not so much by the reasoning of these cases themselves, but by the thoughtful discussion of a recent commentator. King, Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences, 90 Yale L.J. 1353 (1981).
King's basic thesis is explained in the following passage, which is particularly pertinent to the case before us.
Causation has for the most part been treated as an all-or-nothing proposition. Either a loss was caused by the defendant or it was not.... A plaintiff ordinarily should be required to prove by the applicable standard of proof that the defendant caused the loss in question. What caused a loss, however, should be a separate question from what the nature and extent of the loss are. This distinction seems to have eluded the courts, with the result that lost chances in many respects are compensated either as certainties or not at all.
To illustrate, consider the case in which a doctor negligently fails to diagnose a patient's cancerous condition until it has become inoperable. Assume further that even with a timely diagnosis the patient would have had only a 30% chance of recovering from the disease and surviving over the long term. There are two ways of handling such a case. Under the traditional approach, this loss of a not-better-than-even chance of recovering from the cancer would not be compensable because it did not appear more likely [than] not that the patient would have survived with proper care. Recoverable damages, if any, would depend on the extent to which it appeared that cancer killed the patient sooner than it would have with timely diagnosis and treatment, and on the extent to which the delay in diagnosis aggravated the patient's condition, such as by causing additional pain. A more rational approach, however, would allow recovery for the loss of the chance of cure even though the chance was not better than even. The probability of long-term survival would be reflected in the amount of damages awarded for the loss of the chance. While the plaintiff here could not prove by a preponderance of the evidence that he was denied a cure by the defendant's negligence, he could show by a preponderance that he was deprived of a 30% chance of a cure.
90 Yale L.J. at 1363-64.
Under the all or nothing approach, typified by Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio St.2d 242, 272 N.E.2d 97 (1971), a plaintiff who establishes that but for the defendant's negligence the decedent had a 51 percent chance of survival may maintain an action for that death. The defendant will be liable for all damages arising from the death, even though there was a 49 percent chance it would have occurred despite his negligence. On the other hand, a plaintiff who establishes that but for the defendant's negligence the decedent had a 49 percent chance of survival recovers nothing.
This all or nothing approach to recovery is criticized by King on several grounds, 90 Yale L.J. at 1376-78. First, the all or nothing approach is arbitrary. Second, it
subverts the deterrence objectives of tort law by denying recovery for the effects of conduct that causes statistically demonstrable losses.... A failure to allocate the cost of these losses to their tortious sources ... strikes at the integrity of the torts system of loss allocation.
90 Yale L.J. at 1377. Third, the all or nothing approach creates pressure to manipulate and distort other rules affecting causation and damages in an attempt to mitigate perceived injustices. (Kallenberg v. Beth Israel Hosp. appears to be a good illustration of this tendency.) Fourth, the all or nothing approach gives certain defendants the benefit of an uncertainty which, were it not for their tortious conduct, would not exist. (This is reminiscent of the reasoning in the fertile dictum in Hicks v. United States.) Finally, King argues that the loss of a less than even chance is a loss worthy of redress.
These reasons persuade me that the best resolution of the issue before us is to recognize the loss of a less than even chance as an actionable injury. Therefore, I would hold that plaintiff has established a prima facie issue of proximate cause by producing testimony that defendant probably caused a substantial reduction in Mr. Herskovits' chance of survival.
The decedent's personal action for loss of this chance will survive to his personal representatives as provided by RCW 4.20.046. The family of the decedent should also be allowed to maintain an action for the lost chance of recovery by the decedent. I would interpret the wrongful death statute, RCW 4.20.010, to apply to cases of this type. Under this interpretation, a person will "cause" the death of another person (within the meaning of RCW 4.20.010) whenever he causes a substantial reduction in that person's chance of survival. [FN1]
FN1. The wrongful death statute is probably the principal reason the parties focused on the death of Mr. Herskovits rather than his diminished chance of survival. As I have endeavored to demonstrate, this approach leads either to harsh and arbitrary results, or to distortions of existing tort principles and the potential for confusion. A liberal construction of the statute appears a more effective method of achieving the most desirable end. The word "cause" has a notoriously elusive meaning (as the writings on legal causation all agree) and it is certainly sufficiently flexible to bear the interpretation I give it in the context of RCW 4.20.010.
Finally, it is necessary to consider the amount of damages recoverable in the event that a loss of a chance of recovery is established. Once again, King's discussion provides a useful illustration of the principles which should be applied.
To illustrate, consider a patient who suffers a heart attack and dies as a result. Assume that the defendant-physician negligently misdiagnosed the patient's condition, but that the patient would have had only a 40% chance of survival even with a timely diagnosis and proper care. Regardless of whether it could be said that the defendant caused the decedent's death, he caused the loss of a chance, and that chance-interest should be completely redressed in its own right. Under the proposed rule, the plaintiff's compensation for the loss of the victim's chance of surviving the heart attack would be 40% of the compensable value of the victim's life had he survived (including what his earning capacity would otherwise have been in the years following death). The value placed on the patient's life would reflect such factors as his age, health, and earning potential, including the fact that he had suffered the heart attack and the assumption that he had survived it. The 40% computation would be applied to that base figure.
(Footnote omitted.) 90 Yale L.J. at 1382. [FN2]
FN2. In effect, this approach conforms to the suggestion of Justice Brachtenbach in his dissent at page 490, footnote 1. The statistical data relating to the extent of the decedent's chance of survival are considered to show the amount of damages, rather than to establish proximate cause.
I would remand to the trial court for proceedings consistent with this opinion.
WILLIAM H. WILLIAMS, C.J., and UTTER and STAFFORD, JJ., concur.
BRACHTENBACH, Justice (dissenting).
I dissent because I find plaintiff did not meet her burden of proving proximate cause. While the statistical evidence introduced by the expert was relevant and admissible, it was not alone sufficient to maintain a cause of action.
Neither the majority nor Justice Dolliver's dissent focus on the key issue. Both opinions focus on the significance of the 14 percent differentiation in the patient's chance to survive for 5 years and question whether this statistical data is sufficient to sustain a malpractice action. The issue is not so limited. The question should be framed as whether all the evidence amounts to sufficient proof, rising above speculation, that the doctor's conduct was a proximate cause of the patient's death. While the relevancy and the significance of the statistical evidence is a subissue bearing on the sufficiency of the proof, such evidence alone neither proves nor disproves plaintiff's case.
I
Proximate cause is neither easily defined nor readily understood. Dean Prosser begins his discussion of proximate cause with this disclaimer:
There is perhaps nothing in the entire field of law which has called forth more disagreement, or upon which the opinions are in such a welter of confusion. Nor, despite the manifold attempts which have been made to clarify the subject, is there yet any general agreement as to the proper approach. Much of this confusion is due to the fact that no one problem is involved, but a number of different problems, which are not distinguished clearly, and that language appropriate to a discussion of one is carried over to cast a shadow upon the others.
(Footnotes omitted.) W. Prosser, Torts § 41, at 236 (4th ed. 1971).
Confusion is generated by the fact that proximate cause is a uniquely legal concept. It is not synonymous with the concept of cause in a philosophical sense because, hypothetically, an act may cause endless consequences. See Restatement (Second) of Torts § 431, comment A (1965). Proximate cause, however, represents the judicial limitations placed upon an actor's liability for the consequences of his or her conduct. See King v. Seattle, 84 Wash.2d 239, 249, 525 P.2d 228 (1974); cf. Hunsley v. Giard, 87 Wash.2d 424, 434, 553 P.2d 1096 (1976) (liability limited through judicial definition of duty).
The boundaries of proximate cause are not self-determinative. The question is one of law, not fact alone, and it is one that necessarily involves a policy decision. See Probert, Causation in the Negligence Jargon: A Plea for Balanced "Realism", 18 U.Fla.L.Rev. 369 (1965); Green, The Causal Relation Issue in Negligence Law, 60 Mich.L.Rev. 543 (1962). Whether the case goes to the jury or the judge dismisses the claim for a failure to make a case for causation may depend on the actors and the circumstances involved.
Seldom does a rule protect every victim against every risk that may befall him, merely because it is shown that the violation of the rule played a part in producing the injury. The task of defining the proper reach or thrust of a rule in its policy aspects is one that must be undertaken by the court in each case as it arises.
Malone, Ruminations on Cause-In-Fact, 9 Stan.L.Rev. 60, 73 (1956). For example, the standard of proof of causation involving an intentional wrongdoer or joint tortfeasors may often be relaxed, whereas stringent proof requirements have been applied if the plaintiff was partially at fault. Compare Madigan v. Teague, 55 Wash.2d 498, 348 P.2d 403 (1955) (joint tortfeasors found liable) and Scott v. Rainbow Ambulance Serv., Inc., 75 Wash.2d 494, 452 P.2d 220 (1969) (case dismissed because of plaintiff's failure to segregate his contribution to the damages).
Malpractice suits represent a class of controversies where extreme caution should be exercised in relaxing causation requirements. See Atkins v. Clein, 3 Wash.2d 168, 100 P.2d 1 (1940). The physician serves a vital function in our society, a function which requires the assumption of a duty to the patient. Yet, his profession affords him only an inexact and often experimental science by which to discharge his duty. Moreover, the tendency to place blame on a physician who fails to find a cure is great. Thus policy considerations do not, on balance, weigh in favor of abandoning the well established requirements of proximate cause.
The majority proposes adoption of the substantial factor test for cases falling under Restatement (Second) of Torts § 323(a) (1965). This was the approach taken in Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); however, application of the substantial factor test in these circumstances is truly novel. Usually the substantial factor test has been applied only in situations where there are two causes, either of which could have caused the event alone, and it cannot be determined which was the actual cause. See Madigan v. Teague, supra. For example, A and B both start separate fires which combine to burn C's house. Either fire alone would have caused the same result, but C cannot prove that "but-for" the negligence of either A or B the house would not have burned. Therefore, to prevent both A and B being relieved of liability, the "but-for" test is abandoned, and the question becomes whether the conduct of A or B was a substantial factor in causing the fire that injured C. Under this test, either A or B could be held liable for the damage.
Except in situations where there are coequal causes, however, defendant's act cannot be a substantial factor when the event would have occurred without it. W. Prosser, at 244. Moreover, the substantial factor test has not been applied when one of the causes of the injury was the plaintiff himself. Hence in Scott v. Rainbow Ambulance Serv., Inc., supra, the case was dismissed because plaintiff failed to segregate her contribution to the damages from that of the tortfeasor; there was no discussion of the tortfeasor's conduct in the context of the substantial factor test. Similarly, the substantial factor test should not be applied in the instant case.
II
Furthermore, the instant case does not present evidence of proximate cause that rises above speculation and conjecture. The majority asserts that evidence of a statistical reduction of the chance to survive for 5 years is sufficient to create a jury question on whether the doctor's conduct was a proximate cause of the death. I disagree that this statistical data can be interpreted in such a manner.
Use of statistical data in judicial proceedings is a hotly debated issue. See, e.g., Finkelstein & Fairley, A Bayesian Approach to Identification Evidence, 83 Harv.L.Rev. 489 (1970) (Finkelstein & Fairley I); Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv.L.Rev. 1329 (1971) (Tribe I); Finkelstein & Fairley, A Comment on "Trial by Mathematics", 84 Harv.L.Rev. 1801 (1971) (Finkelstein & Fairley II); Tribe, A Further Critique of Mathematical Proof, 84 Harv.L.Rev. 1810 (1971) (Tribe II); Dickson, Medical Causation by Statistics, 17 Forum 792 (1982); See also Brachtenbach, Future Damages in Personal Injury Actions-- The Standard of Proof, 3 Gonz.L.Rev. 75 (1968). Many fear that members of the jury will place too much emphasis on statistical evidence and the statistics will be misused and manipulated by expert witnesses and attorneys. Tribe I, supra; Dickson, supra; People v. Collins, 68 Cal.2d 319, 438 P.2d 33, 66 Cal.Rptr. 497 (1968).
Such fears do not support a blanket exclusion of statistical data, however. Our court system is premised on confidence in the jury to understand complex concepts and confidence in the right of cross examination as protection against the misuse of evidence. Attorneys ought to be able to explain the true significance of statistical data to keep it in its proper perspective.
Statistical data should be admissible as evidence if they are relevant, that is, if they have
any tendency to make the existence of any fact that is of consequence to ... the action more probable or less probable than it would be without the evidence.
ER 401. The statistics here met that test; they have some tendency to show that those diagnosed at stage one of the disease may have a greater chance to survive 5 years than those diagnosed at stage two.
The problem is, however, that while this statistical fact is relevant, it is not sufficient to prove causation. There is an enormous difference between the "any tendency to prove" standard of ER 401 and the "more likely than not" standard for proximate cause. [FN1]
FN1. There is also a difference between the standard of proof for proximate cause to show liability and the standard of proof to show the amount of damages after liability is established. Courts are willing to relax proof requirements on the issue of damages, once liability is shown. See generally 22 Am.Jur.2d Damages § 23 (1965). Therefore, statistical data may be of greater value at the damage stage, especially with regards to future damages that are necessarily subject to some uncertainties and contingencies. See Brachtenbach, Future Damages in Personal Injury Actions--The Standard of Proof, 3 Gonz.L.Rev. 75 (1968).
Reliance on statistics alone to prove proximate cause may lead to unjust results. A simple example will illustrate my point. Assume there are two cab companies in a town; one has three blue cabs and the other has one yellow cab. A pedestrian is hit by a cab, but doesn't know what color it was. In a suit for personal injury, plaintiff wants to admit the statistical fact that there is a 75 percent chance that she was hit by a blue cab. This fact has relevancy; it is admissible. But is it sufficient to prove the blue cab company more probably than not committed the act? No. If this were not the case, the blue cab company could be held liable for every unidentified cab accident that occurred.
Thus statistics alone should not be sufficient to prove proximate cause. What is necessary, at the minimum, is some evidence connecting the statistics to the facts of the case. Referring back to the cab example, testimony that a blue cab was seen in the vicinity of the accident before or after it occurred or evidence of a recently acquired, unaccounted for, dent in a blue cab could combine with the statistical evidence to lead a jury to believe it was more probable than not that this plaintiff was hit by a blue cab. See Finkelstein & Fairley I.
Thus, I would not resolve the instant case simply by focusing on the 14 percent differentiation in the chance to survive 5 years for the different stages of cancer. Instead, I would accept this as an admissible fact, but not as proof of proximate cause. To meet the proximate cause burden, the record would need to reveal other facts about the patient that tended to show that he would have been a member of the 14 percent group whose chance of 5 years' survival could be increased by early diagnosis.
Such evidence is not in the record. Instead, the record reveals that Mr. Herskovits' cancer was located such that corrective surgery "would be more formidable". This would tend to show that his chance of survival may have been less than the statistical average. Moreover, the statistics relied on did not take into consideration the location of the tumor, therefore their relevance to Mr. Herskovits' case must be questioned. Clerk's Papers, at 41.
In addition, as the tumor was relatively small in size when removed (2 to 3 centimeters), the likelihood that it would have been detected in 1974, even if the proper test were performed, was less than average. This uncertainty further reduces the probability that the doctor's failure to perform the tests was a proximate cause of a reduced chance of survival.
Other statistics admitted into evidence also tend to show the inconclusiveness of the statistics relied on by the majority. One study showed the two-year survival rate for this type of cancer to be 46.6 percent for stage one and 39.8 percent for stage two. Mr. Herskovits lived for 20 months after surgery, which was 26 months after defendant allegedly should have discovered the cancer. Therefore, regardless of the stage of the cancer at the time Mr. Herskovits was examined by defendant, it cannot be concluded that he survived significantly less than the average survival time. Hence, it is pure speculation to suppose that the doctor's negligence "caused" Mr. Herskovits to die sooner than he would have otherwise. Such speculation does not rise to the level of a jury question on the issue of proximate cause. Therefore, the trial court correctly dismissed the case. See Restatement (Second) of Torts § 434 (1965); Scott v. Rainbow Ambulance Serv., Inc., 75 Wash.2d 494, 452 P.2d 220 (1969).
The apparent harshness of this conclusion cannot be overlooked. The combination of the loss of a loved one to cancer and a doctor's negligence in diagnosis seems to compel a finding of liability. Nonetheless, justice must be dealt with an even hand. To hold a defendant liable without proof that his actions caused plaintiff harm would open up untold abuses of the litigation system.
Cases alleging misdiagnosis of cancer are increasing in number, perhaps because of the increased awareness of the importance of early detection. These cases, however, illustrate no more than an inconsistency among courts in their treatment of the problems of proof. See Annot., Malpractice in Connection with Diagnosis of Cancer, 79 A.L.R.3d 915 (1977). Perhaps as medical science becomes more knowledgeable about this disease and more sophisticated in its detection and treatment of it, the balance may tip in favor of imposing liability on doctors who negligently fail to promptly diagnose the disease. But, until a formula is found that will protect doctors against liability imposed through speculation as well as afford truly aggrieved plaintiffs their just compensation, I cannot favor the wholesale abandonment of the principle of proximate cause. For these reasons, I dissent.
DIMMICK, J., concurs.
DOLLIVER, Justice (dissenting).
This is apparently a case of first impression. As is usually true in such instances, the court is called upon to make a policy decision. The issue before us is whether, when the chance of survival is less than a probability, i.e., less than 50 percent, proof that the chance of survival--not the probability of survival--is reduced is sufficient to take the case to the jury.
The majority answer in the affirmative cites several cases in support of this view and adopts the reasoning of Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978). I favor the opposing view and believe the reasoning in Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio St.2d 242, 272 N.E.2d 97 (1971), also cited by the majority, is more persuasive. In discussing the rule to be adopted the Ohio Supreme Court stated:
A rule, which would permit a plaintiff to establish a jury question on the issue of proximate cause upon a showing of a "substantial possibility" of survival, in our judgment, suffers the same infirmity as a rule which would permit proof of a "chance of recovery" to be sufficient. While the substantial possibility concept appears to connote a weightier burden than the chance of recovery idea, both derogate well-established and valuable proximate cause considerations. Traditional proximate cause standards require that the trier of the facts, at a minimum, must be provided with evidence that a result was more likely than not to have been caused by an act, in the absence of any intervening cause.
Lesser standards of proof are understandably attractive in malpractice cases where physical well being, and life itself, are the subject of litigation. The strong intuitive sense of humanity tends to emotionally direct us toward a conclusion that in an action for wrongful death an injured person should be compensated for the loss of any chance for survival, regardless of its remoteness. However, we have trepidations that such a rule would be so loose that it would produce more injustice than justice. Even though there exists authority for a rule allowing recovery based upon proof of causation by evidence not meeting the standard of probability, we are not persuaded by their logic....
We consider the better rule to be that in order to comport with the standard of proof of proximate cause, plaintiff in a malpractice case must prove that defendant's negligence, in probability, proximately caused the death.
(Citations omitted.) Cooper, at 251-52, 272 N.E.2d 97. This, it seems to me, is a better rule.
The majority states the variations from 39 percent to 25 percent in the decedent's chance for survival are sufficient evidence to "consider the possibility" that the failure of the physician to diagnose the illness in a timely manner was the "proximate cause of his death." This reasoning is flawed. Whether the chances were 25 percent or 39 percent decedent would have survived for 5 years, in both cases, it was more probable than not he would have died. Therefore, I cannot conclude that the missed diagnosis was the proximate cause of death when a timely diagnosis could not have made it more probable the decedent would have survived. " 'It is legally and logically impossible for it to be probable that a fact exists, and at the same time probable that it does not exist.' " Cooper, at 253, 272 N.E.2d 97, quoting Davis v. Guarnieri, 45 Ohio St. 470, 490, 15 N.E. 350 (1887). It would be pure speculation, given these figures, for an expert, a jury, or anyone else to conclude the decedent would live more or less time within the 5- year period with or without the proper diagnosis.
Two further comments: Factually, many of the cases cited by the majority, including Hamil v. Bashline, do not support its position. In McBride v. United States, 462 F.2d 72 (9th Cir.1972), the mortality rate was 15 percent for coronary patients admitted to the hospital and 30 to 35 percent for those outside the hospital. Thus, in any circumstance, the probability of survival was over 50 percent and was measurably greater in rather than out of the hospital. In Hamil v. Bashline, supra, 481 Pa. at 272 n. 9, 392 A.2d 1280, the court stated the testimony observed "a 75% chance of recovery had prompt treatment been administered". In Hicks v. United States, 368 F.2d 626 (4th Cir.1966), the court observed, "Both of plaintiff's experts testified categorically that if operated on promptly, Mrs. Greitens would have survived, and this is nowhere contradicted by the government expert." Hicks, at 632.
In Wooldridge v. Woolett, 96 Wash.2d 659, 638 P.2d 566 (1981), we held the value of a decedent's shortened life expectancy was not recoverable as a separate item of damages in a survival action under RCW 4.20.046. Yet, in the present case the majority is willing to grant recovery, not where there is a direct cause for the shortened life expectancy, but on the more ephemeral basis of a statistical probability entitled "probability of survival".
While these observations may not go to the heart of the majority position, they do make it a bit ragged around the edges.
I believe the position articulated in Cooper v. Sisters of Charity of Cincinnati, Inc., supra, is preferable and thus I dissent.
27 Ohio St.2d 242
COOPER v. SISTERS OF CHARITY OF CINCINNATI, INC.
Supreme Court of Ohio
July 21, 1971Medical malpractice action. The trial court granted defendants' motion for directed verdict. Upon appeal, the trial court's judgment was affirmed by the Court of Appeals for Hamilton County, and plaintiff appealed. The Supreme Court, Duncan, J., held that where medical malpractice is alleged as proximate cause of death, and plaintiff's evidenc indicates that a failure to diagnose injury prevented patient from an opportunity to be operated on, which failure eliminated any chance of patient's survival, issue of proximate cause can be submitted to a jury only if there is sufficient evidence showing that with proper diagnosis, treatment and surgery the patient probably would have survived. Affirmed.
Syllabus by the Court
In an action for wrongful death, where medical malpractice is alleged as the proximate cause of death, and plaintiff's evidence indicates that a failure to diagnose the injury prevented the patient from an opportunity to be operated on, which failure eliminated any chance of the patient's survival, the issue of proximate cause can be submitted to a jury only if there is sufficient evidence showing that with proper diagnosis, treatment and surgery the patient probably would have survived.
This case originated in the Court of Common Pleas as a wrongful death action brought bt Margaret Cooper, administratrix of the estate of her, son, Theodore Grant Cooper.
Sometime in the early afternon on July 22, 1965, Theodore Grant Cooper, age 16, was struck by a truck while riding a bicycle. Later that afternoon at about 2:00 p. m., his mother saw him at the home of a relative. Theodore stated that he had hit his head, hurt his back, and complained of a slight headache. He had vomited prior to his mother's arrival and again after her arrival. Mrs. Cooper observed a red mark on the back of his head.
In the early evening of July 22, 1965, Mrs. Cooper accompanied her son to the emergency room of Good Samaritan Hospital. He was able to enter the hospital unaided. While waiting to be attended, the decedent vomited again.
A lady came from an office in the emergency room, asked for, and was given certain information by Mrs. Cooper. Mrs. Cooper informed her of her son's name, address, and how he was hurt.
The boy and his mother than entered an examining room where appellee, Dr. Hansen, began his examination.
The doctor was given the history of decedent's accident, vomiting, and complaint of headache. Dr. Hansen examined the decedent about the stomach and the top of his head; tested his reflexes and grip, examined his eyes with a light; looked into his ears; and ordered X-rays, the results of which did not reveal a skull fracture.
At all times during the examination Mrs. Cooper was present, except when decedent was taken to the X-ray room. She testified that her son was lying down on a movable cart throughout the examination, and that she called the physician's attention to the fact that it was the back of the boy's head that was hurt, but he did not examine the back of the boy's head.
Dr. Hansen did not utilize an opthalmoscope, did not test decedent's gait, did not perform a Romberg test, nor did he conduct any other diagnostic procedures.
Concluding his attendance, Dr. Hansen advised that the patient be taken home, put to bed, and awakened every hour during the early part of the evening to make sure that he could be awakened. Thereafter he was to be awakened every two hours throughout the remainder of the night. Mrs. Cooper was told that if she were unable to awaken him or if he vomited more than twice, or if she recognized any other change in his condition, she was to return him to the hospital. Upon leaving the hospital the decedent had to be assisted in walking.
When appellant and her son returned to her apartment, the boy went to bed. He remained awake with no apparent change in his condition until he became restless just before his death, which occurred early the next morning.
Appellant's witness, Dr. Frank Cleveland, Hamilton County Coroner, performed an autopsy and stated at trial that, in his opinion, the cause of death was a basal skull fracture and a welling of the tissues in the back of the decedent's head, causing intracranial pressure and hemorrhage as the result of an injury to his head.
Dr. Hansen did not determine decedent's vital signs; i.e., temperature, respiration, pulse, and blood pressure. Mrs. Cooper testified that none of these tests were conducted while she was with her son at the hospital. Dr. Hansen testified that although he had no personal knowledge of his own as to whether the vital signs of the decedent were taken at the hospital, taking such signs were mandatory routine procedures in the emergency room. He testified further that at present he did not know what decedent's vital signs were that night, but that he was sure that he had known them at that time. [FN*]
FN* Dr. Hansen testified as follows regarding the taking of vital signs:
'A. The nurse would take the vital signs, yes.
'Q. What nurse on this particular evening, Dr. Hansen, took the vital signs?
'A. Mrs. Loughery, sir.
'Q. What were the vital signs?
'A. I don't know, sir.
'Q. What were the vital signs?
'A. I don't know, sir.
'Q. Did you ever know on the evening of July 22, 1965, what Grant Cooper's vital signs were?
'A. I am sure that I must have.
'Q. I am asking you if you knew, not what you think.
'A. I would say yes, sir. 'Q. Did you ever make a notation of his blood pressure?
'A. No, sir.
'Mr. Kiely: Just a moment. I objedt, if your Honor please. There is no showing that in the routine of these things the doctor does those things. If counsel wants to lay a foundation as to who makes the entries, all right. But to ask the doctor if he did or didn't-
'The Court: I will let the answer stand up to now. You may ask another question, Mr. Breslin.
'Q. In other words, Dr. Hansen, you relied upon the nurse at the hospital to take all the vital information?
'A. That's right.
'Mrs Greene: I will object.
'The Court: Overruled.
'Q. Doctor, let's see if we can agree. It is important for somebody to find out what the boy's blood pressure was?
'A. That's right.
'Q. And what his temperature was?
'A. Yes, sir.
'Q. And what his pulse was?
'A. That's right.
'Q. And what his respiration was? 'A. Yes, sir.
', Grant Cooper came in to see you, or you went into see him on the evening of July 22, 1965, what was his temperature?
'Mr. Kiely: I object, if your Honor please.
'The Court: If he knows he may answer.
'A. I don't remember.
'Q. You mean you don't know?
'The Court: That's what he just said, Mr. Breslin.
'Q. What was Grant Cooper's blood pressure on the evening of July 22, 1965, when you examined him in the emergency room of Good Samaritan Hospital?
'A. I don't remember.
'Q. What was Grant Cooper's rate of respiration on that evening?
'A. I don't remember.
'Q. What was Grant Coopper's pulse on that eveing?
'A. I don't remember.
'Q. Now, the reason these notes are taken or thse reports are kept is so that the doctor can refresh himself on what he observed, what conclusions he made, or what treatment he prescribed, and similar information; is that not so?
'A. That's right, sir.
'Q. Yet on this evening that Grant Cooper came in you have no record of any of that information, do you.
'Mr. Kiely: Objection again.
'The Court: He just answered that, Mr. Breslin.
'Mr. Breslin: He said that he didn't remember.
'Mr. Kiely: He has said that it wasn't his duty.
'Q. Doctor, did you ever yourself make a record of what those vital signs were?
'A. I did not.
'Q. To your knowledge did anyone ever make a record of what those vital signs were?
'A. Not a permanent record, no, sir.
'* * *
'Q. What was this nurse's name who you said took the vital signs that evening?
'A. Mrs. Loughery.
'Q. Have you ever discussed this matter with her since then?
'A. No, I haven't.
'Q. Prior to submitting yourself to deposition on December 28, 1965, did you discuss this with her?
'A. I think that I did once, yes, sir.
'Q. Was the dicussion, 'Did you take the blood pressure that night'? 'A. No. I was not aware that the blood pressure was not recorded on this chart at that time.
'Q. You have no knowledge if it was ever taken, of your own, do you?
'A. Will you repeat that, sir?
'(Pending question read by the reporter.)
'A. I have no knowledge of my own.
'Q. Of your own personal knowledge?
'A. I have no written report of it.
'Q. You have no personal knowledge that it was done, do you?
'A. It was a mandatory routine that that be done in the emergency room.
'Q. I will agree with that, but I am asking you, sir: You have no personal knowledge that it was done, do you?
'A. I would answer that the same way, sir.'
The appellant filed this action in the Court of Common Pleas against the Sisters of Charity of Cincinnati, Inc., doing business as Good SamaritanHospital; the Emergency Professional Service Group of Good Samaritan Hospital, an unincorporated association; Richard Weber, that group's co-director; and Dr. Robert Hansen. The petition alleges that the Sisters of Charity had represented to appellant, and to the public, that the persons rendering medical care in the emergency room were doing so on behalf of the hospital, and that the appellant's decedent's death was 'directly and proximately caused by the negligence and carelessness of the defendants' in their diagnosis and treatment of decedent's injuries.
Appellee Emergency Professional Service Group, although controlling the emergency room of the hospital, did not hire or select the staff working there, nor did it provide supplies or equipment, bill patients, or keep records taken in such emergency procedures. Appellee Hansen was paid for his services by the Service Group.
Dr. Cleveland testified that, in his opinion, the swollen tissue and external discoloration from decedent's injury would have appeared within a brief period after such injury, and should have been found upon examination. Although there is a near certainty of death when an injury, such as suffered by decedent, goes untreated, Dr. Cleveland stated that 'there is no possible way for a physician or anyone else to ascertain with any degree of certainty whether with medical intervention, the individual would have survived or died.' Such a finding would require, he concluded, pure conjecture or speculation.
Dr. DeJong, chairman of the Department of Neurology the University of Michigan medical school, testified for appellant by deposition. He related that contemporary medical standards, both in Ann Arbor, Michigan, and Cincinnati, require that the 'vital signs' should have been checked in this kind of case, and that the decedent's vomiting should have given rise to a more complete examination than was performed including in-hospital observation for a period of time. Injuries to the brain may be evidenced by changes in those vital signs. He testified further that while there is practically a 100% mortality rate without surgery for patients with similar injuries as decedent's, 'there certainly is a chance and I can't say exactly what-maybe some place around 50%- that he would survive with surgery.' With regard to appellee Hansen's failure to examine the knot on decedent's head, or to test his ability to sit up, stand, or walk around, Dr. DeJong opined that 'the evaluation concerning these two factors was not complete.'
Appellant was prevented from deposing Dr. Robert L. McLaurin by reason of the trial court's granting appellee's application to stay such deposition. The basis of that holding was that Dr. Hansen had discussed this case with Dr. McLaurin; that therefore the privileged communication statute applied.
At the close of appellant's case, the court granted appellees' motion for a directed verdict. The trial court entered separate findings of fact and conclusions of law. Among others, the following findings of fact were made:
'8. The normal hospital procedure was that the nurse would take the vital signs before the patient was taken to the doctor. Dr. Hansen did not take the vital signs and they were not taken in his presence. He had no knowledge of what they were, if taken. When the admission sheet reached the doctor, only the typewritten portions appeared on it.'
'15. At the time of the examination of plaintiff's decedent by Dr. Hansen, in the opinion of Dr. Cleveland within reasonable medical certainty, a swollen and discolored area would have existed and would have been apparent and sensitive to palpatation on the back of decedent's head and should have been found on examination at the emergency room.'
'21. Dr. Cleveland descreibed the vital signs to be blood pressure, pulse, temperature and respiration, and as a matter of course must be checked where there is injury to the head.'
'24. Dr. DeJong said that in the condition of the decedent death was inevitable without surgical intervention. Even with the best surgical intervention no one could say with any certainty that there would be recovery; that there is no possible way for a physician to ascertain with any degree of certainty whether with further medical attention the decedent would have lived or would have died and that it is a matter of pure speculation and guess to render any opinion concerning the chances of recovery.'
The trial judge's conclusions of law are as follows:
'From the facts adduced it is the conclusion of the court that the evidence of proximate cause was insufficient to make a prima facie case for submission to the jury as against defendant, Dr. Hansen, his employer, the Emergency Service Group of the Good Samaritan Hospital, or Sisters of Charity of Cincinnati, Inc.
'It is the further conclusion of the court that the professional medical services available at the emergency room and rendered to plaintiff's decedent were under the sole direction and control of the Emergency Professional Service Group and not under the direction and control of the Sisters of Charity of Cincinnati, Inc.
'Based upon the foregoing, it is the conclusion of the court that the defendants were entitled to judgment in their favor as a matter of law.'
The trial court's judgment was affirmed by the Court of Appeals. This court is reviewing the case pursuant to the allowance of a motion to certify the record.
Lindhorst & Dreidame, Haskell Bazell, and Leo J. Breslin, Cincinnati, for appellant.
Bloom, Greene, Thurman & Uible, Rendigs, Fry, Kiely & Dennis, and John A. Kiely, Cincinnati, for appellees.
DUNCAN, Justice. Reasonable minds could arrive at differing conclusions as to whether Dr. Hansen was negligent in rendering professional medical services to plaintiff's decedent, and there is sufficient evidence for the submission of that issue to the jury. There is ample evidence in the record supportive of the trial judge's findings of fact that Dr. Hansen did not take the vital signs, that they were not taken in his pressence, and that he had no knowledge of what they were, if taken. Those findings, considered together with other expert testimony, provide a basis from which a jury could properly determine that Dr. Hansen's conduct regarding Theodore Cooper did not satisfy the standard that a physician in the community should observe under like circumstances.
The more problematic issue of proximate cause looms from these facts as a reminder of past dificulties this court has experienced with this issue in malpractice cases.
It has been established, and we now reaffirm the principle that: 'Even though there is evidence of malpractice sufficient for submission to the jury on that issue, a verdict must be directed in favor of the defendant where there is no evidence adduced which would give rise to a reasonable inference that the defendant's acts of malpractice was the direct and proximate cause of the injury to the plaintiff.' Paragraph two of the syllabus in Kuhn v. Banker (1938), 133 Ohio St. 304, 13 N.E.2d 242.
In his opinion in Kuhn, Judge Williams, at page, 315, 13 N.E.2d at page 247, stated that 'the patient cannot recover damages unless the act of malpractice is the direct and proximate cause of injury. Loss of chance of recovery, standing alone, is not an injury from which damages will flow.' In so stating, Judge Williams disagreed with, and relegates to obiter dictum, the conflicting view expressed in Craig v. Chambers (1867), 17 Ohio St. ,253, 254, 261, that 'any want of the proper degree of skill or care which diminishes the chances of a patient's recovery would, in a legal sense, constitute injury.
In Hicks v. United States (C.C.A. 4, 1966), 368 F.2d 626, construing Virginia law, it is expressed, at page 632:
'When a defendant's negligent action or inaction has effectively terminated a person's chance of survival, it does not lie in the defendant's mouth to raise conjectures as to the measure of the chances that he has put beyond the possiblity of realization. If there was any substantial possibility of survival and the defendant has destroyed it, he is answerable. Rarely is it possible to demonstrate to an absolute certainty what would have happened in circumstances that the wrongdoer did not allow to come to pass. The law does not in the existing circumstances require the plaintiff to show to a certainty that the patient would have lived had she been hospitalized and operated on promptly.'
Although the words 'substantial possibility' are employed as articulating a standard of proof, the facts in Hicks reveal that plaintiffs' evidence satisfied a much higher standard of proof. The court also stated, at page 632:
'The government further contends that even if negligence is established, there was no proof that the erroneous diagnosis and treatment was the proximate cause of the death, asserting that even if surgery had been performed immediately, it is mere speculation to say that it would have been successful. The government's contention, however, is unsupported by the record. Both of plaintiff's experts testified categorically that if operated on paromptly, Mrs. Greitens would have survived, and this is nowhere contradicted by the government expert.' (Emphasis added.)
A rule, which would permit a plaintiff to establish a jury question on the issue of proximate cause upon a showing of a 'substantial possibility' of survival, in our judgment, suffers the same infirmity as a rule which would permit proof of a 'chance of recovery' to be sufficient. While the substantial possibility concept appears to connote a weightier burden than the chance of recovery idea, both derogate well-established and valuable proximate cause considerations. Traditional proximate cause standards require that the trier of the facts, at a minimum, must be provided with evidence that a result was more likely than not to have been caused by an act, in the absence of any intervening cause.
Lesser standards of proof are understandably attractive in malpractice cases where physical well being, and life itself, are the subject of litigation. The strong intuitive sense of humanity tends to emotionally direct us toward a conclusion that in an action for wrongful death an injured person should be compensated for the loss of any chance for survival, regardless of its remoteness. However, we have trepidations that such a rule would be so loose that it would produce more injustice than justice. Even though there exists authority for a rule allowing recovery based upon proof of causation by evidence not meeting the standard of probability, we are not persuaded by their logic. See Craig v. Chambers, supra (17 Ohio St. 253, 254); Hicks v. United States, supra (368 F.2d 626); Neal v. Welker (Ky.1968), 426 S.W.2d 476; Rogers v. Kee (1912), 171 Mich. 551, 137 N.W. 260, quoting from Craig v. Chambers, supra; Burk v. Foster (1902), 114 Ky. 20, 69 S.W. 1096. The following authorities appear to require the establishment of proximate cause by evidence of probability: Harvey v. Silber (1942), 300 Mich. 510, 2 N.W.2d 483; Schuler v. Berger (1967), D.C., 275 F.Supp. 120; Walden v. Jones (Ky.1969), 439 S.W.2d 571 (distinguishing Neal v. Walker, supra); Connellan v. Coffey (1936), 122 Conn. 136, 187 A. 901.
We consider the better rule to be that in order to comport with the standard of proof of proximate cause, plaintiff in a malpractice case must prove that defendant's negligence, in probability, proximately caused the death.
In this case, we are convinced that in order for the jury question to be presented, giving plaintiff's evidence, and inferences reasonably deductible therefrom its most favorable consideration and indulgence, there must be sufficient evidence that Dr. Hansen's negligence denied plaintiff's decedent the probability of survival. Appellant has not produced such evidence.
Dr. Cleveland, plaintiff's witness stated that 'there is no possible way for a physician or anyone else to ascertain with any degree of certainty whether with medical intervention, the individual would have survived or died.' Dr. DeJong stated that, if untreated, the condition from which Theodore Cooper died had practically a 100% mortality rate without surgery for patients with similar injuries as decedent's. He then stated that 'there certainly is a chance and I can't say exactly what-maybe some place around 50%-that he would survive with surgery.' (Emphasis added.)
Dr. Cleveland's opinion furnishes no suggestion of a probability of survival; Dr. DeJong's opinion bears closer examination. Probability is most often defined as that which is more likely than not. See Clark v. Welch (C.C.A. 1, 1944), 140 F.2d 271, 273; In re Salomon's Estate (1936), 159 Misc. 379, 384, 287 N.Y.S. 814, Dr. DeJong's opinion that, with surgical intervention, decedent's expectation of survival was 'Maybe * * * around 50%,' in our judgment does not provide a basis from which probability can reasonably be inferred. The use of the words, 'maybe' and 'around,' does not connote that there is probability; those words, in the context used, could mean either more than 50%, or less than 50%. Probable is more than 50% of actual. Price v. Neyland (1963), 115 U.S.App.D.C. 355, 320 F.2d 674, 678. In view of the requirement that proximate cause, in this type of case, is a matter demanding medical expert testimony, there are no facts available in this case from which a juror could infer that survival would have been more likely, than not, if surgery had been performed. A juror could as reasonably infer from Dr. DeJong's testimony that survival would, under the circumstances, have been somewhat less than probable.
As stated in Davis v. Guarnieri (1887), 45 Ohio St. 470, 490, 15 N.E. 350, 361, 'It is legally and logically impossible for it to be probable that a fact exists, and at the same time probable that it does not exist.'
Plaintiff's cause of action was brought under R.C. 2125.01, under which compensation may be awarded 'when death is caused by a wrongful act, neglect or default * * *.' (Emphasis added.)
In an action for wrongful death, where medical malpractice is alleged as the proximate cause of death, and plaintiff's evidence indicates that a failure to diagnose the injury prevented the patient from an opportunity to be operated on, which failure eliminated any chance of the patient's survival, the issue of proximate cause can be submitted to a jury only if there is sufficient evidence showing that with proper diagnosis, treatment and surgery the patient probably would have survived.
We find no error in the trial court's determination that appellee Sisters of Charity were not liable for the negligence of appellees Dr. Hansen and Emergency Professional Service Group, should that be established, or in the other issues raised by appellant before this court. Appellee Dr. Hansen was an employee of appellee Emergency Professional Service Group, and was not under the control of the hospital. See Avellone v. St. John's Hospital (1956), 165 Ohio St. 467, 478, 135 N.E.2d 410; Councell v. Douglas (1955), 163 Ohio St. 292, 126 N.E.2d 597, paragraph one of the syllabus. Moreover, the practice of medicine by a licensed physician in a hospital is not sufficient to create an agency by estoppel, as alleged by appellant. Nowhere is 'induced reliance' shown by the appellant, as required by Johnson v. Wagner Provision Co. (1943), 141 Ohio St. 584, 49 N.E.2d 925, to establish such a relationship.
Nowhere in the record does it affirmatively appear that appellant was prejudiced by the trial court's granting appellee's application to stay the taking of Dr. McLaurin's deposition, of which plaintiff also complains. The rule is well settled in Ohio that: 'In order to support reversal of a judgment, the record must show affirmatively not only that error intervened but that such error was to the prejudice of the party seeking such reversal.' Smith v. Flesher (1967), 12 Ohio St.2d 107, 233 N.E.2d 137, paragraph one of the syllabus. See, also, R.C. 2309.59. Without any suggestion as to how appellant was prejudiced, we need not decide whether the court's action staying the taking of Dr. McLaurin's deposition was error.
For the foregoing reasons, the judgment of the Court of Appeals is affirmed.
Judgment affirmed.
C. WILLIAM O'NEILL, C. J., and SCHNEIDER, CORRIGAN, STERN and LEACH, JJ., concur.
HERBERT, J., dissents.
BING v. THUNIG and St. John's Episcopal Hospital
Court of Appeals of New York.
May 16, 1957.Action against hospital and others for injuries sustained by patient when burned during course of operation. The Supreme Court, Kings County, J. Vincent Keogh, J., entered judgment upon a verdict for plaintiff, and defendant appealed. The Supreme Court, Appellate Division, 1 A.D.2d 887, 149 N.Y.S.2d 358, reversed, and plaintiff appealed. The Court of Appeals, Fuld, J., held that hospital is liable to patient for injuries sustained through negligence of hospital employees acting within scope of employment, and that doctrine according hospital immunity for the negligence of its employees is abandoned.
Judgment of Appellate Division reversed and new trial granted.
FULD, J. Following Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 105 N.E. 92, 52 L.R.A.,N.S., 505, a body of law has developed making the liability of a hospital for injuries suffered by a patient, through the negligence of its employees, depend on whether the injury-producing act was 'administrative' or 'medical.' The wisdom and workability of this rule exempting hospitals from the normal operation of the doctrine of respondeat superior have in recent years come under increasing attack. Decision in the present case calls upon us to say whether the rule should longer endure.
The plaintiff, Isabel Bing, was severely burned during the course of an operation, performed at St. John's Episcopal Hospital by her own physician, for correction of a fissure of the anus. She had been made ready for the operation, before the surgeon's appearance, by the hospital anesthetist and by two nurses also in the employ of the hospital. Preparatory to administering spinal anesthesia, the anesthetist painted the lumbar region of the patient's back with an alcoholic antiseptic, tincture of zephiran, an inflammable fluid, reddish in color. Again, after induction of the spinal anesthesia, one of the nurses applied the zephiran solution to the operative area. At that time there were three layers of sheeting under the patient.
The nurses were fully aware that the inflammable antiseptic employed was potentially dangerous. They acknowledged that they had been instructed, not only to exercise care to see that none of the fluid dropped on the linen, but to inspect it and remove any that had become stained or contaiminated. However, they made no inspection, and the sheets originally placed under the patient remained on the table throughout the operation.
The surgeon was not in the operating room when the antiseptic was applied and at least 15 munutes elapsed before he initiated the preoperative draping process. The draping completed, the doctor took a heated electric cautery and touched it to the fissure to mark it before beginning the actual searing of the tissue. There was a 'smell of very hot singed linen' and, 'without waiting to see a flame or smoke', he doused the area with water. Assured that the fire was out, he proceeded with the operation. Subsequent examination of the patient revealed severe burns on her body, later inspection of the linen, several holes burned through the sheet under her.
In the action thereafter brought against the hospital and the surgeon to recover for the injuries suffered, there was a verdict against both. As to the hospital, with whose liability we are alone concerned, the court charged that that defendant could be held liable only if plaintiff's injuries occurred through the negligence of one of its employees while performing an 'administrative,' as contrasted with a 'medical,' act. Upon appeal, the Appellate Division by a closely divided vote reversed and dismissed the complaint. The majority of three, reasoning that the application of the antiseptic was in preparation for the operation and, therefore, part of the operation itself, concluded that the injury resulted from a 'medical' act.
As is apparent, the liability asserted against the hospital is predicated on an independent act or omission of the hospital-employed nurses, and not on any conduct of theirs ordered or directed by a visiting doctor or surgeon or, for that matter, by any physician. The evidence strongly supports the findings, implicit in the jury's verdict, that some of the inflammable zephiran solution had dropped on the sheet beneath the plaintiff's body, that it had left a stain discoverable upon inspection, that the nurses in attendance had had full opportunity, before the beginning of the operation, to remove the stained linen and that the solution (which had dropped on the sheet) had given off a gaseous vapor that ignited upon contact with the heated cautery. In the light of these facts, the jury was thoroughly justified in concluding that the failure of the nurses to remove the contaminated vapor-producing linen constituted the plainest sort of negligence.
But, contends the hospital such negligence occurred during the performance of a 'medical' act and, accordingly, under the so-called Schloendorff rule, the doctrine of respondeat superior may not be applied to subject it to liability. The difficulty of differentiating between the 'medical' and the 'administrative' in this context, highlighted as it is by the disagreement of the judges below, is thus brought into sharp focus.
That difficulty has long plagued the courts and, indeed, as consideration of a few illustrative cases reveals, a consistent and clearly defined distinction between the terms has proved to be highly elusive. Placing an improperly capped hot water bottle on a patient's body is administrative (Iacono v. New York Polyclinic Med. School & Hosp., 296 N.Y. 502, 68 N.E.2d 450), while keeping a hot water bottle too long on a patient's body is medical (Sutherland v. New York Polyclinic Med. School & Hosp., 298 N.Y. 682, 82 N.E.2d 583). Administering blood, by means of a transfusion, to the wrong patient is administrative (Necolayff v. Genesee Hosp., 296 N.Y. 936, 73 N.E.2d 117), while administering the wrong blood to the right patient is medical (Berg v. New York Soc. for Relief of Ruptured & Crippled, 1 N.Y.2d 499, 154 N.Y.S.2d 455, reversing 286 App.Div. 783, 146 N.Y.S.2d 548). Employing an improperly sterilized needle for a hypodermic injection is administrative (Peck v. Charles B. Towns Hosp., 275 App.Div. 302, 89 N.Y.S.2d 190), while improperly administering a hypodermic injection is medical (Bryant v. Presbyterian Hosp. in City of N. Y., 304 N.Y. 538, 110 N.E.2d 391). Failing to place sideboards on a bed after a nurse decided that they were necessary is administrative (Ranelli v. Society of N. Y. Hosp., 295 N.Y. 850, 67 N.E.2d 257), while failing decide that sideboards should be used when the need does exist is medical (Grace v. Manhattan Eye, Ear & Throat Hosp., 301 N.Y. 660, 93 N.E.2d 926).
From distinctions such as these there is to be deduced neither guiding principle nor clear delineation of policy; they cannot help but cause confusion, cannot help but create doubt and uncertainty. And, while the failure of the nurses in the present case to inspect and remove the contaminated linen might, perhaps, be denominated an administrative default, we do not consider it either wise or necessary again to become embroiled in an overnice disputation as to whether it should be labeled administrative or medical. The distrinctions, it has been noted, were the result of 'a judicial policy of compromise between the doctrines of respondeat superior and total immunity for charitable institutions.' (Bobbe , Tort Liability of Hospitals in New York, 37 Corn.L.Q. 419, 438.) The better to understand the problem presented, a brief backward glance into historical beginnings proves profitable.
The doctrine declaring charitable institutions immune from liability was first declared in this country in 1876. McDonald v. Massachusetts Gen. Hosp., 120 Mass. 432. Deciding that a charity patient, negligently operated upon by a student doctor, could not hold the hospital responsible, the court reasoned that the public and private donations that supported the charitable hospital constituted a trust fund which could not be diverted. As sole authority for its conclusion, the Massachusetts court relied on an English case (Holliday v. St. Leonard's, 11 C.B.N.S. 192, 142 Eng.Rep. 769), which in turn was based on a dictum in a case decided in 1839 (Duncan v. Findlater, 6 Cl. & Fin. 894, 7 Eng.Rep. 934), failing, apparently, to note that the dictum in the earlier case had been overruled (see Mersey Docks Trustees v. Gibbs, 11 H.L.Cas. 686) and that the decision in the other had been reversed. (See Foreman v. Mayor of Canterbury, 6 Q.B. 214.)[FN1] At any rate, after the McDonald case was decided (supra, 120 Mass. 432), other courts in this country, through not all on the same theory or for the same reason, followed the lead of Massachusetts in exempting the charitable hospital from liability, and so in time did the courts of New York. (See 4 Scott on Trusts (2d ed., 1956), s 402, p. 2895 et seq.; Bobbe , supra, 37 Corn.L.Q. 419, 420-425.
FN1 This historical item prompted one court, which recently abandoned the immunity doctrine, to say: 'Ordinarily, when a court decides to modify or abandon a court-made rule of long standing, it starts out by saying that 'the reason for the rule no longer exists.' In this case, it is correct to say that the 'reason' originally given for the rule of immunity never did exist.' Pierce v. Yakima Val. Mem. Hosp. Ass'n, 43 Wash.2d 162, 167, 260 P.2d 765, 768.
Although it was not the first case to deal with the general subject in this state, Schloendorff v. New York Hosp. (supra, 211 N.Y. 125, 105 N.E. 92, 52 L.R.A.,N.S., 505) was the most important of the early decisions to be handed down by this court. It was there declared broadly that a charitable hospital was not responsible for the negligence of its physicians and nurses in the treatment of patients. Two reasons were assigned for that conclusion. The first was that one who seeks and accepts charity must be deemed to have waived any right to damages for injuries suffered through the negligence of his benefactor's servants and yet the rule was not limited to charity patients but was expanded to cover both paying patients and a private or profit-making hospital. See Bakal v. University Heights Sanitarium, 302 N.Y. 870, 100 N.E.2d 51, affirming 277 App.Div. 572, 101 N.Y.S.2d 385; Steinert v. Brunswick Home, 172 Misc. 787, 16 N.Y.S.2d 83, affirmed 259 App.Div. 1018, 20 N.Y.S.2d 459, motion for leave to appeal denied 284 N.Y. 822, 31 N.E.2d 517. The second reason which the court advanced was that the principle of respondeat superior was not to be applied to doctors and nurses. It was the court's though that, even though employed by the hospital, they were to be regarded as independent contractors rather than employees because of the skill they exercised and the lack of control exerted over their work and yet, we pause again to interpolate, the special skill of other employees (such as airplane pilots, locomotive engineers, chemists, to mention but a few) has never been the basis for denying the application of respondeat superior and, even more to the point, that very principle has been invoked to render a public hospital accountable for the negligence of its doctors, nurses and other skilled personnel. See Becker v. City of New York, 2 N.Y.2d 226, 159 N.Y.S.2d 174; Liubowsky v. State of New York, 285 N.Y. 701, 34 N.E.2d 385, affirming 260 App.Div. 416, 23 N.Y.S.2d 633.
The Schloendorff rule has pursued an inconstant course, riddled with numerous exceptions and subjected to various qualifications and refinements.[FN2] While it would serve no useful purpose to trace in detail the doctrinal changes and modifications or the shifting theories advanced to support them, we briefly note two or three of the more striking instances. We have already remarked the qualification which excepts public hospitals, those owned by the state or city, from the operation of the Schloendorff rule and from the application of the medical-administrative distinction. See, e. g., Becker v. City of New York, supra, 2 N.Y.2d 226, 159 N.Y.S.2d 174; Liubowsky v. State of New York, supra, 285 N.Y. 701, 34 N.E.2d 385, affirming 260 App.Div. 416, 23 N.Y.S.2d 633. And in Berg v. New York Soc. for Relief of Ruptured & Crippled, supra, 1 N.Y.2d 499, 154 N.Y.S.2d 455, reversing 286 App.Div. 783, 146 N.Y.S.2d 548, the court carved another large segment out of that rule by holding that those distinctions were to be discarded in every case in which the injury- producing act was performed by a nonprofessional employee.
FN2 See, e. g., Bernstein v. Beth Israel Hosp., 236 N.Y. 268, 140 N.E. 694, 30 A.L.R. 598; Phillips v. Buffalo Gen. Hosp., 239 N.Y. 188, 146 N.E. 199; Sheehan v. North Country Community Hosp., 273 N.Y. 163, 173 N.E.2d 28, 109 A.L.R. 1197; Dillon v. Rockaway Beach Hosp., 284 N.Y. 176, 30 N.E.2d 373; Liubowsky v. State of New York, supra, 285 N.Y. 701, 34 N.E.2d 385, affirming 260 App.Div. 416, 23 N.Y.S.2d 633; Bakal v. University Heights Sanitarium, supra, 302 N.Y. 870, 100 N.E.2d 51, affirming 277 App.Div. 572, 101 N.Y.S.2d 385; Mrachek v. Sunshine Biscuit, 308 N.Y. 116, 123 N.E.2d 801; Berg v. New York Soc. for Relief of Ruptured & Crippled, supra, 1 N.Y.2d 499, 154 N.Y.S.2d 455; Becker v. City of New York, supra, 2 N.Y.2d 226, 159 N.Y.S.2d 174; Steinert v. Brunswick Home, supra, 172 Misc. 787, 16 N.Y.S.2d 83, affirmed 259 App.Div. 1018, 20 N.Y.S.2d 459, motion for leave to appeal denied 284 N.Y. 822, 31 N.E.2d 517.
The cases to which we have adverted do not merely illustrate fluctuation of doctrine and the vicissitudes of judgment. They rather demonstrate the inherent incongruity of the immunity rule itself. A distinction unique in the law should rest on stronger foundations than those advanced. Indeed, the first ground stated in Schloendorff, namely, that there is a waiver by the patient of his right to recover for negligent injury, has long been abandoned as 'logically weak' and 'pretty much a fiction.' Phillips v. Buffalo Gen. Hosp., 239 N.Y. 188, 189, 146 N.E. 199; Sheehan v. North Country Community Hosp., 273 N.Y. 163, 166, 7 N.E.2d 28, 29, 109 A.L.R. 1197. The second ground that professional personnel, such as doctors, nurses and internes, should be deemed independent contractors, though salaried employees is inconsistent with what they have been held to be in every other context and, to a large extent, even in this one. For example, the nurse, regarded as an independent contractor when she injures a patient by an act characterized as medical, is considered an employee of the hospital, entitled to compensation, if she should happen to injure herself by that very same act. Bernstein v. Beth Israel Hosp., 236 N.Y. 268, 140 N.E. 694, 30 A.L.R. 598. Further, in holding the city responsible for injuries sustained through the carelessness of members of the staff of a city hospital, not only did we recognize that they were employees, to whom the doctrine of respondeat superior applies, but we noted the anomaly of treating as independent contractors 'persons, who by all other tests are clearly employees'. Becker v. City of New York, supra, 2 N.Y.2d 226, 235, 159 N.Y.S.2d 174, 183; and cf. Mrachek v. Sunshine Biscuit, 308 N.Y. 116, 123 N.E.2d 801.
Nor may the exemption be justified by the fear, the major impetus originally behind the doctrine, that the imposition of liability will do irreparable harm to the charitable hospital. At the time the rule originated, in the middle of the nineteenth century, not only was there the possibility that a substantial award in a single negligence action might destroy the hospital, but concern was felt that a ruling permitting recovery against the funds of charitable institutions might discourage generosity and 'constrain * * * (them), as a measure of self-protection, to limit their activities.' Schloendorff v. New York Hosp., supra, 211 N.Y. 125, 135, 105 N.E. 92, 95, 52 L.R.A.,N.S., 505. Whatever problems today beset the charitable hospital and they are not to be minimized, the dangers just noted have become less acute. Quite apart from the availability of insurance to protect against possible claims and lawsuits, we are not informed that undue hardships or calamities have overtaken them in those jurisdictions where immunity is withheld and liability imposed. See, e. g., President and Directors of Georgetown Coll. v. Hughes, 76 U.S.App.D.C. 123, 130 F.2d 810, 823-824; Cohen v. General Hosp. Soc., 113 Conn. 188, 193, 154 A. 435; Pierce v. Yakima Val. Memorial Hosp. Ass'n, 43 Wash.2d 162, 171- 172, 260 P.2d 765. In any event, today's hospital is quite different from its predecessor of long ago; it receives wide community support, employs a large number of people and necessarily operates its plant in businesslike fashion.
Based on considerations such as those remarked in the preceding pages, and others, the trend of decision throughout the country has more and more been away from nonliability. See, e. g., President and Directors of Georgetown Coll. v. Hughes, supra, 76 U.S.App.D.C. 123, 130 F.2d 810, 818-822; Pierce v. Yakima Val. Memorial Hosp. Ass'n, supra, 43 Wash.2d 162, 175-177, 260 P.2d 765; Note, 25 A.L.R.2d 29. As one court observed, 'American judicial thinking, which formerly gave 'overwhelming' acceptance to the immunity rule, now gives that doctrine a very modest majority.' Pierce v. Yakima Val. Memorial Hosp. Ass'n, supra, 43 Wash.2d 162, 177, 260 P.2d 765, 773. In point of fact, a survey of recent cases those decided since the middle 1940's demonstrates, not only that the immunity rule has been rejected in every jurisdiction where the court was unfettered by precedent,[FN3] but that the doctrine has been overruled and abandoned in a number of state where nonliability had long been the rule.[FN4]
FN3 See President and Directors of Georgetown Coll. v. Hughes, supra, 76 U.S.App.D.C. 123, 130 F.2d 810; Moats v. Sisters of Charity of Providence, 13 Alaska 546; Durney v. St. Francis Hosp., 7 Terry 350, 46 Del. 350, 83 A.2d 753; Rickbeil v. Grafton Deanconess Hosp., 74 N.E. 525, 23 N.E.2d 247, 166 A.L.R. 99; Foster v. Roman Catholic Diocese of Vermont, 116 Vt. 124, 70 A.2d 230, 25 A.L.R.2d 1.
FN4 See Ray v. Tucson Medical Center, 72 Ariz. 22, 230 P.2d 220; Silva v. Providence Hosp. of Oakland, 14 Cal.2d 762, 97 P.2d 798; Wheat v. Idaho Falls Latter Day Saints Hosp., Iowa, 297 P.2d 1041; Haynes v. Presbyterian Hosp. Ass'n, 241 Iowa 1269, 45 N.E.2d 151; Noel v. Menninger Foundation, 175 Kan. 751, 267 P.2d 934; Mississippi Baptist Hosp. v. Holmes, 214 Miss. 906, 55 So.2d 142, 56 So.2d 709, 25 A.L.R.2d 12; Avellone v. St. John's Hospital, 165 Ohio St. 467, 469, 135 N.E.2d 410; Pierce v. Yakima Val. Memorial Hosp. Ass'n, supra, 43 Wash.2d 162, 260 P.2d 765.
And, it is worthy of note, there is general agreement among text writers and other commentators that the rule of immunity should be abandoned and the doctrine of respondeat superior reaffirmed to render the hospital liable for the torts of its employees. (See, e. g., 4 Scott, op. cit., s 402, p. 893 et seq.; 2A Bogert on Trusts and Trustees (1953), s 401, pp. 241-254; Prosser on Torts (2d ed., 1955), s 109, p. 786 et seq.; 2 Harper and James on The Law of Torts (1956), p. 1397, n. 9; Bobbe , supra, 37 Corn.L.Q. 419; Feezer, The Tort Liability of Charities, 77 U. of Pa.L.Rev. 191; Note, 163 Journal Amer. Med. Ass'n 283, 285.)
Although we have hitherto refrained from pronouncing 'the ultimate fate' of the Schloendorff rule (Becker v. City of New York, supra, 2 N.Y.2d 226, 235, 159 N.Y.S.2d 174, 182; Berg v. New York Soc. for Relief of Ruptured & Crippled, supra, 1 N.Y.2d 499, 503, 154 N.Y.S.2d 455, 457), we have long indicated our dissatisfaction with it, and only last year, in further expanding the hospital's liability, the court posed this searching and suggestive question (1 N.Y.2d 499, 502, 154 N.Y.S.2d 455, 456): 'What reason compels us to say that of all employees working in their employers' businesses (including charitable, educational, religious and governmental enterprises) the only ones for whom the employers can escape liability are the employees of hospitals?'
The doctrine of respondeat superior is grounded on firm principles of law and justice. Liability is the rule, immunity the exception. It is not too much to expect that those who serve and minister to members of the public should do so, as do all others, subject to that principle and within the oligation not to injure through carelessness. It is not alone good morals but sound law that individuals and organizations should be just before they are generous, and there is no reason why that should not apply to charitable hospitals. 'Charity suffereth long and is kind, but in the common law it cannot be careless. When it is, it ceases to be kindness and becomes actionable wrongdoing.' President and Directors of Georgetown Coll. v. Hughes, supra, 76 U.S.App.D.C. 123, 130 F.2d 810, 813. Insistence upon respondeat superior and damages for negligent injury serves a two-fold purpose, for it both assures payment of an obligation to the person injured and gives warning that justice and the law demand the exercise of care.
The conception that the hospital does not undertake to treat the patient, does not undertake to act through its doctors and nurses, but undertakes instead simply to procure them to act upon their own responsibility, no longer reflects the fact. Present-day hospitals, as their manner of operation plainly demonstrates, do far more than furnish facilities for treatment. They regularly employ on a salary basis a large staff of physicians, nurses and internes, as well as administrative and manual workers, and they charge patients for medical care and treatment, collecting for such services, if necessary, by legal action. Certainly, the person who avails himself of 'hospital facilities' expects that the hospital will attempt to cure him, not that it nurses or other employees will act on their own responsibility.
Hospitals should, in short, shoulder the responsibilities borne by everyone else. There is no reason to continue their exemption from the universal rule of respondeat superior. The test should be, for these institutions, whether charitable or profit-making, as it is for every other employer, was the person who committed the negligent injury-producing act one of its employees and, if he was, was he acting within the scope of his employment.
The rule of nonliability is out of tune with the life about us, at variance with modern-day needs and with concepts of justice and fair dealing. It should be discarded. To the suggestion that stare decisis compels us to perpetuate it until the legislature acts, a ready answer is at hand. It was intended, not to effect a 'petrifying rigidity,' but to assure the justice that flows from certainty and stability. If, instead, adherence to precedent offers not justice but unfairness, not certainty but doubt and confusion, it loses its right to survive, and no principle constrains us to follow it. On the contrary, as this court, speaking through Judge Desmond in Woods v. Lancet, 303 N.Y. 349, 355, 102 N.E.2d 691, 694, 27 A.L.R.2d 1250, declared, we would be abdicating 'our own function, in a field peculiarly nonstatutory,' were we to insist on legislation and 'refuse to reconsider an old and unsatisfactory court-made rule.'
In sum, then, the doctrine according the hospital an immunity for the negligence of its employees is such a rule, and we abandon it. The hospital's liability must be governed by the same principles of law as apply to all other employers.
The judgment of the Appellate Division should be reversed and a new trial granted, with costs to abide the event.
CONWAY, Chief Judge (concurring).
I concur in result.
I regret my inability to concur in the opinion of Judge Fuld. In think that, as Judge Fuld points out in his opinion, 2 N.Y.2d 661, 163 N.Y.S.2d 6, 'the failure of the nurses * * * to inspect and remove the contaminated linen might, perhaps, be denominated an administrative default * * *.' I think that it was an administrative default, and that the hospital should be held to be responsible under the reasoning of the many authorities cited and collated in Judge Fuld's opinion. We should stop there and not go on to overrule the doctrine of Schloendorff v. New York Hosp., 211 N.Y. 125, 105 N.E. 92, 52 L.R.A.,N.S., 505. A voluntary hospital is not conducted as a business. Very few, if any, voluntary hospitals reach the end of any year without a deficit which has to be made up by its board of directors or by other charitable gifts. This is especially so of small hospitals. In my judgment, the doctrine of the Schloendorff case has justified itself over the years and has enabled voluntary hospitals to survive. That is particularly so in small communities as distinguished from larger cities. We need both the large and small voluntary hospital. The alternative is public hospitals supported by county or State or stock company hospitals operating as businesses organized for profit. Since it is unnecessary, in my judgment, on these facts to overrule Schloendorff v. New York Hosp., supra, I would reverse here on the ground that we have presented to us only a negligent administrative act performed by nurses.
DESMOND, DYE, FROESSEL, VAN VOORHIS and BURKE, JJ., concur with FULD, J.
CONWAY, C. J., concurring for reversal in a separate memorandum.
Judgment reversed, etc.
464 F.2d 772, 150 U.S.App.D.C. 263
CANTERBURY v. SPENCE
United States Court of Appeals, District of Columbia Circuit
Decided May 19, 1972
Rehearing Denied July 20, 1972.A patient brought action against a surgeon and hospital. At the end of the patient's case in chief, the United States District Court for the District of Columbia, Francis C. Whelan, J., directed verdicts for the surgeon and hospital, and the patient appealed. The Court of Appeals, Spottswood W. Robinson, III, Circuit Judge, held that evidence presented a jury issue as to sufficiency of the surgeon's disclosure, i. e., whether a one percent possibility of paralysis resulting from laminectomy was peril of sufficient magnitude to bring a disclosure duty into play; evidence also presented an issue as to whether the operation was negligently performed. The Court also held that evidence including evidence that the patient progressed after the operation until he fell while unattended but, a few hours thereafter, his condition had deteriorated and testimony that there were complaints of paralysis and respiratory difficulty and medical testimony that paralysis can be brought on by trauma or shock presented an issue whether there was dereliction of the hospital's duty to exercise reasonable care for the safety and well-being of the patient, and an issue of causality. Reversed and remanded for new trial.
SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
This appeal is from a judgment entered in the District Court on verdicts directed for the two appellees at the conclusion of plaintiff-appellant Canterbury's case in chief. His action sought damages for personal injuries allegedly sustained as a result of an operation negligently performed by appellee Spence, a negligent failure by Dr. Spence to disclose a risk of serious disability inherent in the operation, and negligent post-operative care by appellee Washington Hospital Center. On close examination of the record, we find evidence which required submission of these issues to the jury. We accordingly reverse the judgment as to each appellee and remand the case to the District Court for a new trial.
I
The record we review tells a depressing tale. A youth troubled only by back pain submitted to an operation without being informed of a risk of paralysis incidental thereto. A day after the operation he fell from his hospital bed after having been left without assistance while voiding. A few hours after the fall, the lower half of his body was paralyzed, and he had to be operated on again. Despite extensive medical care, he has never been what he was before. Instead of the back pain, even years later, he hobbled about on crutches, a victim of paralysis of the bowels and urinary incontinence. In a very real sense this lawsuit is an understandable search for reasons.
At the time of the events which gave rise to this litigation, appellant was nineteen years of age, a clerk-typist employed by the Federal Bureau of Investigation. In December, 1958, he began to experience severe pain between his shoulder blades. [FN1] He consulted two general practitioners, but the medications they prescribed failed to eliminate the pain. Thereafter, appellant secured an appointment with Dr. Spence, who is a neurosurgeon.
FN1. Two months earlier, appellant was hospitalized for diagnostic tests following complaints of weight loss and lassitude. He was discharged with a final diagnosis of neurosis and thereafter given supportive therapy by his then attending physician.
Dr. Spence examined appellant in his office at some length but found nothing amiss. On Dr. Spence's advice appellant was x-rayed, but the films did not identify any abormality. Dr. Spence then recommended that appellant undergo a myelogram-a procedure in which dye is injected into the spinal column and traced to find evidence of disease or other disorder-at the Washington Hospital Center.
Appellant entered the hospital on February 4, 1959. [FN2] The myelogram revealed a "filling defect" in the region of the fourth thoracic vertebra. Since a myelogram often does no more than pinpoint the location of an aberration, surgery may be necessary to discover the cause. Dr. Spence told appellant that he would have to undergo a laminectomy-the excision of the posterior arch of the vertebra-to correct what he suspected was a ruptured disc. Appellant did not raise any objection to the proposed operation nor did he probe into its exact nature.
FN2. The dates stated herein are taken from the hospital records. At trial, appellant and his mother contended that the records were inaccurate, but the one-day difference over which they argued is without significance.
Appellant explained to Dr. Spence that his mother was a widow of slender financial means living in Cyclone, West Virginia, and that she could be reached through a neighbor's telephone. Appellant called his mother the day after the myelogram was performed and, failing to contact her, left Dr. Spence's telephone number with the neighbor. When Mrs. Canterbury returned the call, Dr. Spence told her that the surgery was occasioned by a suspected ruptured disc. Mrs. Canterbury then asked if the recommended operation was serious and Dr. Spence replied "not anymore than any other operation." He added that he knew Mrs. Canterbury was not well off and that her presence in Washington would not be necessary. The testimony is contradictory as to whether during the course of the conversation Mrs. Canterbury expressed her consent to the operation. Appellant himself apparently did not converse again with Dr. Spence prior to the operation.
Dr. Spence performed the laminectomy on February 11 [FN3] at the Washington Hospital Center. Mrs. Canterbury traveled to Washington, arriving on that date but after the operation was over, and signed a consent form at the hospital. The laminectomy revealed several anomalies: a spinal cord that was swollen and unable to pulsate, an accumulation of large tortuous and dilated veins, and a complete absence of epidural fat which normally surrounds the spine. A thin hypodermic needle was inserted into the spinal cord to aspirate any cysts which might have been present, but no fluid emerged. In suturing the wound, Dr. Spence attempted to relieve the pressure on the spinal cord by enlarging the dura-the outer protective wall of the spinal cord-at the area of swelling.
FN3. The operation was postponed five days because appellant was suffering from an abdominal infection.
For approximately the first day after the operation appellant recuperated normally, but then suffered a fall and an almost immediate setback. Since there is some conflict as to precisely when or why appellant fell, [FN4] we reconstruct the events from the evidence most favorable to him. [FN5] Dr. Spence left orders that appellant was to remain in bed during the process of voiding. These orders were changed to direct that voiding be done out of bed, and the jury could find that the change was made by hospital personnel. Just prior to the fall, appellant summoned a nurse and was given a receptacle for use in voiding, but was then left unattended. Appellant testified that during the course of the endeavor he slipped off the side of the bed, and that there was no one to assist him, or side rail to prevent the fall.
FN4. The one fact clearly emerging from the otherwise murky portrayal by the record, however, is that appellant did fall while attempting to void and while completely unattended.
FN5. See Aylor v. Intercounty Constr. Corp., 127 U.S.App.D.C. 151, 153, 381 F.2d 930, 932 (1967), and cases cited in n. 2 thereof.
Several hours later, appellant began to complain that he could not move his legs and that he was having trouble breathing; paralysis seems to have been virtually total from the waist down. Dr. Spence was notified on the night of February 12, and he rushed to the hospital. Mrs. Canterbury signed another consent form and appellant was again taken into the operating room. The surgical wound was reopened and Dr. Spense created a gusset to allow the spinal cord greater room in which to pulsate.
Appellant's control over his muscles improved somewhat after the second operation but he was unable to void properly. As a result of this condition, he came under the care of a urologist while still in the hospital. In April, following a cystoscopic examination, appellant was operated on for removal of bladder stones, and in May was released from the hospital. He reentered the hospital the following August for a 10-day period, apparently because of his urologic problems. For several years after his discharge he was under the care of several specialists, and at all times was under the care of a urologist. At the time of the trial in April, 1968, appellant required crutches to walk, still suffered from urinal incontinence and paralysis of the bowels, and wore a penile clamp.
In November, 1959 on Dr. Spence's recommendation, appellant was transferred by the F.B.I. to Miami where he could get more swimming and exercise. Appellant worked three years for the F.B.I. in Miami, Los Angeles and Houston, resigning finally in June, 1962. From then until the time of the trial, he held a number of jobs, but had constant trouble finding work because he needed to remain seated and close to a bathroom. The damages appellant claims include extensive pain and suffering, medical expenses, and loss of earnings.
II
Appellant filed suit in the District Court on March 7, 1963, four years after the laminectomy and approximately two years after he attained his majority. The complaint stated several causes of action against each defendant. Against Dr. Spence it alleged, among other things, negligence in the performance of the laminectomy and failure to inform him beforehand of the risk involved. Against the hospital the complaint charged negligent post-operative care in permitting appellant to remain unattended after the laminectomy, in failing to provide a nurse or orderly to assist him at the time of his fall, and in failing to maintain a side rail on his bed. The answers denied the allegations of negligence and defended on the ground that the suit was barred by the statute of limitations.
Pretrial discovery-including depositions by appellant, his mother and Dr. Spence-continuances and other delays consumed five years. At trial, disposition of the threshold question whether the statute of limitations had run was held in abeyance until the relevant facts developed. Appellant introduced no evidence to show medical and hospital practices, if any, customarily pursued in regard to the critical aspects of the case, and only Dr. Spence, called as an adverse witness, testified on the issue of causality. Dr. Spence described the surgical procedures he utilized in the two operations and expressed his opinion that appellant's disabilities stemmed from his pre-operative condition as symptomized by the swollen, non-pulsating spinal cord. He stated, however, that neither he nor any of the other physicians with whom he consulted was certain as to what that condition was, and he admitted that trauma can be a cause of paralysis. Dr. Spence further testified that even without trauma paralysis can be anticipated "somewhere in the nature of one percent" of the laminectomies performed, a risk he termed "a very slight possibility." He felt that communication of that risk to the patient is not good medical practice because it might deter patients from undergoing needed surgery and might produce adverse psychological reactions which could preclude the success of the operation.
At the close of appellant's case in chief, each defendant moved for a directed verdict and the trial judge granted both motions. The basis of the ruling, he explained, was that appellant had failed to produce any medical evidence indicating negligence on Dr. Spence's part in diagnosing appellant's malady or in performing the laminectomy; that there was no proof that Dr. Spence's treatment was responsible for appellant's disabilities; and that notwithstanding some evidence to show negligent post-operative care, an absence of medical testimony to show causality precluded submission of the case against the hospital to the jury. The judge did not allude specifically to the alleged breach of duty by Dr. Spence to divulge the possible consequences of the laminectomy.
We reverse. The testimony of appellant and his mother that Dr. Spence did not reveal the risk of paralysis from the laminectomy made out a prima facie case of violation of the physician's duty to disclose which Dr. Spence's explanation did not negate as a matter of law. There was also testimony from which the jury could have found that the laminectomy was negligently performed by Dr. Spence, and that appellant's fall was the consequence of negligence on the part of the hospital. The record, moreover, contains evidence of sufficient quantity and quality to tender jury issues as to whether and to what extent any such negligence was causally related to appellant's post-laminectomy condition. These considerations entitled appellant to a new trial.
Elucidation of our reasoning necessitates elaboration on a number of points. In Parts III and IV we explore the origins and rationale of the physician's duty to reasonably inform an ailing patient as to the treatment alternatives available and the risks incidental to them. In Part V we investigate the scope of the disclosure requirement and in Part VI the physician's privileges not to disclose. In Part VII we examine the role of causality, and in Part VIII the need for expert testimony in non-disclosure litigation. In Part IX we deal with appellees' statute of limitations defense and in Part X we apply the principles discussed to the case at bar.
III
Suits charging failure by a physician [FN6] adequately to disclose the risks and alternatives of proposed treatment are not innovations in American law. They date back a good half-century, [FN7] and in the last decade they have multiplied rapidly. [FN8] There is, nonetheless, disagreement among the courts and the commentators [FN9] on many major questions, and there is no precedent of our own directly in point. [FN10] For the tools enabling resolution of the issues on this appeal, we are forced to begin at first principles. [FN11]
FN6. Since there was neither allegation nor proof that the appellee hospital failed in any duty to disclose, we have no occasion to inquire as to whether or under what circumstances such a duty might arise.
FN7. See, e. g., Theodore v. Ellis, 141 La. 709, 75 So. 655, 660 (1917); Wojciechowski v. Coryell, 217 S.W. 638, 644 (Mo.App. 1920); Hunter v. Burroughs, 123 Va. 113, 96 S.E. 360, 366-368 (1918).
FN8. See the collections in Annot., 79 A.L.R.2d 1028 (1961); Comment, Informed Consent in Medical Malpractice, 55 Calif.L.Rev. 1396, 1397 n. 5 (1967).
FN9. For references to a considerable body of commentary, see Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw.U.L.Rev. 628 n. 1 (1970).
FN10. In Stivers v. George Washington Univ., 116 U.S.App.D.C. 29, 320 F.2d 751 (1963), a charge was asserted against a physician and a hospital that a patient's written consent to a bi-lateral arteriogram was based on inadequate information, but our decision did not touch the legal aspects of that claim. The jury to which the case was tried found for the physician, and the trial judge awarded judgment for the hospital notwithstanding a jury verdict against it. The patient confined the appeal to this court to the judgment entered for the hospital, and in no way implicated the verdict for the physician. We concluded "that the verdict constitutes a jury finding that [the physician] was not guilty of withholding relevant information from [the patient] or in the alternative that he violated no duty owed her in telling her what he did tell her or in withholding what he did not tell her. . . ." 116 U.S.App.D.C. at 31, 320 F.2d at 753. The fact that no review of the verdict as to the physician was sought thus became critical. The hospital could not be held derivatively liable on the theory of a master-servant relationship with the physician since the physician himself had been exonerated. And since there was no evidence upon which the verdict against the hospital could properly have been predicated independently, we affirmed the trial judge's action in setting it aside. 116 U.S.App.D.C. at 31-32, 320 F.2d at 753-754. In these circumstances, our opinion in Stivers cannot be taken as either approving or disapproving the handling of the risk-nondisclosure issue between the patient and the physician in the trial court.
FN11. We undertake only a general outline of legal doctrine on the subject and, of course, a discussion and application of the principles which in our view should govern this appeal. The rest we leave for future litigation.
The root premise is the concept, fundamental in American jurisprudence, that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body. . . ." [FN12] True consent to what happens to one's self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each. [FN13] The average patient has little or no understanding of the medical arts, and ordinarily has only his physician to whom he can look for enlightenment with which to reach an intelligent decision. [FN14] From these almost axiomatic considerations springs the need, and in turn the requirement, of a reasonable divulgence by physician to patient to make such a decision possible. [FN15]
FN12. Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92, 93 (1914). See also Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, 1104 (1960), clarified, 187 Kan. 186, 354 P.2d 670 (1960); W. Prosser, Torts § 18 at 102 (3d ed. 1964); Restatement of Torts § 49 (1934).
FN13. See Dunham v. Wright, 423 F.2d 940, 943-946 (3d Cir. 1970) (applying Pennsylvania law); Campbell v. Oliva, 424 F.2d 1244, 1250- 1251 (6th Cir. 1970) (applying Tennessee law); Bowers v. Talmage, 159 So.2d 888 (Fla.App.1963); Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520, 524-525 (1962); Mason v. Ellsworth, 3 Wash.App. 298, 474 P.2d 909, 915, 918-919 (1970).
FN14. Patients ordinarily are persons unlearned in the medical sciences. Some few, of course, are schooled in branches of the medical profession or in related fields. But even within the latter group variations in degree of medical knowledge specifically referable to particular therapy may be broad, as for example, between a specialist and a general practitioner, or between a physician and a nurse. It may well be, then, that it is only in the unusual case that a court could safely assume that the patient's insights were on a parity with those of the treating physician.
FN15. The doctrine that a consent effective as authority to form therapy can arise only from the patient's understanding of alternatives to and risks of the therapy is commonly denominated "informed consent." See, e. g., Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw.U.L.Rev. 628, 629 (1970). The same appellation is frequently assigned to the doctrine requiring physicians, as a matter of duty to patients, to communicate information as to such alternatives and risks. See, e. g., Comment, Informed Consent in Medical Malpractice, 55 Calif.L.Rev. 1396 (1967). While we recognize the general utility of shorthand phrases in literary expositions, we caution that uncritical use of the "informed consent" label can be misleading. See, e. g., Plante, An Analysis of "Informed Consent," 36 Ford.L.Rev. 639, 671-72 (1968).
In duty-to-disclose cases, the focus of attention is more properly upon the nature and content of the physician's divulgence than the patient's understanding or consent. Adequate disclosure and informed consent are, of course, two sides of the same coin-the former a sine qua non of the latter. But the vital inquiry on duty to disclose relates to the physician's performance of an obligation, while one of the difficulties with analysis in terms of "informed consent" is its tendency to imply that what is decisive is the degree of the patient's comprehension. As we later emphasize, the physician discharges the duty when he makes a reasonable effort to convey sufficient information although the patient, without fault of the physician, may not fully grasp it. See text infra at notes 82-89. Even though the factfinder may have occasion to draw an inference on the state of the patient's enlightenment, the factfinding process on performance of the duty ultimately reaches back to what the physician actually said or failed to say. And while the factual conclusion on adequacy of the revelation will vary as between patients-as, for example, between a lay patient and a physician-patient-the fluctuations are attributable to the kind of divulgence which may be reasonable under the circumstances.
A physician is under a duty to treat his patient skillfully [FN16] but proficiency in diagnosis and therapy is not the full measure of his responsibility. The cases demonstrate that the physician is under an obligation to communicate specific information to the patient when the exigencies of reasonable care call for it. [FN17] Due care may require a physician perceiving symptoms of bodily abnormality to alert the patient to the condition. [FN18] It may call upon the physician confronting an ailment which does not respond to his ministrations to inform the patient thereof. [FN19] It may command the physician to instruct the patient as to any limitations to be presently observed for his own welfare, [FN20] and as to any precautionary therapy he should seek in the future. [FN21] It may oblige the physician to advise the patient of the need for or desirability of any alternative treatment promising greater benefit than that being pursued. [FN22] Just as plainly, due care normally demands that the physician warn the patient of any risks to his well-being which contemplated therapy may involve. [FN23]
FN16. Brown v. Keaveny, 117 U.S.App.D.C. 117, 118, 326 F.2d 660, 661 (1963); Quick v. Thurston, 110 U.S.App.D.C. 169, 171, 290 F.2d 360, 362, 88 A.L.R.2d 299 (en banc 1961); Rodgers v. Lawson, 83 U.S.App.D.C. 281, 282, 170 F.2d 157, 158 (1948).
FN17. See discussion in McCoid, The Care Required of Medical Practitioners, 12 Vand.L.Rev. 549, 586-97 (1959).
FN18. See Union Carbide & Carbon Corp. v. Stapleton, 237 F.2d 229, 232 (6th Cir. 1956); Maertins v. Kaiser Foundation Hosp., 162 Cal.App.2d 661, 328 P.2d 494, 497 (1958); Doty v. Lutheran Hosp. Ass'n, 110 Neb. 467, 194 N.W. 444, 445, 447 (1923); Tvedt v. Haugen, 70 N.D. 338, 294 N.W. 183, 187 (1940). See also Dietze v. King, 184 F.Supp. 944, 948, 949 (E.D.Va.1960); Dowling v. Mutual Life Ins. Co., 168 So.2d 107, 116 (La.App.1964), writ refused, 247 La. 248, 170 So.2d 508 (1965).
FN19. See Rahn v. United States, 222 F.Supp. 775, 780-781 (S.D.Ga.1963) (applying Georgia law); Baldor v. Rogers, 81 So.2d 658, 662, 55 A.L.R.2d 453 (Fla.1955); Manion v. Tweedy, 257 Minn. 59, 100 N.W.2d 124, 128, 129 (1959); Tvedt v. Haugen, supra note 18, 294 N.W. at 187; Ison v. McFall, 55 Tenn.App. 326, 400 S.W.2d 243, 258 (1964); Kelly v. Carroll, 36 Wash.2d 482, 219 P.2d 79, 88, 19 A.L.R.2d 1174, cert. denied, 340 U.S. 892, 71 S.Ct. 208, 95 L.Ed. 646 (1950).
FN20. Newman v. Anderson, 195 Wis. 200, 217 N.W. 306 (1928). See also Whitfield v. Daniel Constr. Co., 226 S.C. 37, 83 S.E.2d 460, 463 (1954).
FN21. Beck v. German Klinik, 78 Iowa 696, 43 N.W. 617, 618 (1889); Pike v. Honsinger, 155 N.Y. 201, 49 N.E. 760, 762 (1898); Doan v. Griffith, 402 S.W.2d 855, 856 (Ky.1966).
FN22. The typical situation is where a general practitioner discovers that the patient's malady calls for specialized treatment, whereupon the duty generally arises to advise the patient to consult a specialist. See the cases collected in Annot., 35 A.L.R.3d 349 (1971). See also Baldor v. Rogers, supra note 19, 81 So.2d at 662; Garafola v. Maimonides Hosp., 22 A.D.2d 85, 253 N.Y.S.2d 856, 858, 28 A.L.R.3d 1357 (1964); aff'd, 19 N.Y.2d 765, 279 N.Y.S.2d 523, 226 N.E.2d 311, 28 A.L.R.3d 1362 (1967); McCoid, The Care Required of Medical Practitioners, 12 Vand.L.Rev. 549, 597-98 (1959).
FN23. See, e. g., Wall v. Brim, 138 F.2d 478, 480-481 (5th Cir. 1943), consent issue tried on remand and verdict for plaintiff aff'd., 145 F.2d 492 (5th Cir. 1944), cert. denied, 324 U.S. 857, 65 S.Ct. 858, 89 L.Ed. 1415 (1945); Belcher v. Carter, 13 Ohio App.2d 113, 234 N.E.2d 311, 312 (1967); Hunter v. Burroughs, supra note 7, 96 S.E. at 366; Plante, An Analysis of "Informed Consent," 36 Ford.L.Rev. 639, 653 (1968).
The context in which the duty of risk-disclosure arises is invariably the occasion for decision as to whether a particular treatment procedure is to be undertaken. To the physician, whose training enables a self-satisfying evaluation, the answer may seem clear, but it is the prerogative of the patient, not the physician, to determine for himself the direction in which his interests seem to lie. [FN24] To enable the patient to chart his course understandably, some familiarity with the therapeutic alternatives and their hazards becomes essential. [FN25]
FN24. See text supra at notes 12-13.
FN25. See cases cited supra notes 14-15.
A reasonable revelation in these respects is not only a necessity but, as we see it, is as much a matter of the physician's duty. It is a duty to warn of the dangers lurking in the proposed treatment, and that is surely a facet of due care. [FN26] It is, too, a duty to impart information which the patient has every right to expect. [FN27] The patient's reliance upon the physician is a trust of the kind which traditionally has exacted obligations beyond those associated with armslength transactions. [FN28] His dependence upon the physician for information affecting his well-being, in terms of contemplated treatment, is well-nigh abject. As earlier noted, long before the instant litigation arose, courts had recognized that the physician had the responsibility of satisfying the vital informational needs of the patient. [FN29] More recently, we ourselves have found "in the fiducial qualities of [the physician-patient] relationship the physician's duty to reveal to the patient that which in his best interests it is important that he should know." [FN30] We now find, as a part of the physician's overall obligation to the patient, a similar duty of reasonable disclosure of the choices with respect to proposed therapy and the dangers inherently and potentially involved. [FN31]
FN26. See text supra at notes 17-23.
FN27. Some doubt has been expressed as to ability of physicians to suitably communicate their evaluations of risks and the advantages of optional treatment, and as to the lay patient's ability to understand what the physician tells him. Karchmer, Informed Consent: A Plaintiff's Medical Malpractice "Wonder Drug," 31 Mo.L.Rev. 29, 41 (1966). We do not share these apprehensions. The discussion need not be a disquisition, and surely the physician is not compelled to give his patient a short medical education; the disclosure rule summons the physician only to a reasonable explanation. See Part V, infra. That means generally informing the patient in nontechnical terms as to what is at stake: the therapy alternatives open to him, the goals expectably to be achieved, and the risks that may ensue from particular treatment and no treatment. See Stinnett v. Price, 446 S.W.2d 893, 894, 895 (Tex.Civ.App.1969). So informing the patient hardly taxes the physician, and it must be the exceptional patient who cannot comprehend such an explanation at least in a rough way.
FN28. That element comes to the fore in litigation involving contractual and property dealings between physician and patient. See, e. g., Campbell v. Oliva, supra note 13, 424 F.2d at 1250; In re Bourquin's Estate, 161 Cal.App.2d 289, 326 P.2d 604, 610 (1958); Butler v. O'Brien, 8 Ill.2d 203, 133 N.E.2d 274, 277 (1956); Woodbury v. Woodbury, 141 Mass. 329, 5 N.E. 275, 278, 279 (1886); Clinton v. Miller, 77 Okl. 173, 186 P. 932, 933 (1919); Hodge v. Shea, 252 S.C. 601, 168 S.E.2d 82, 84, 87 (1969).
FN29. See, e. g., Sheets v. Burman, 322 F.2d 277, 279-280 (5th Cir. 1963); Hudson v. Moore, 239 Ala. 130, 194 So. 147, 149 (1940); Guy v. Schuldt, 236 Ind. 101, 138 N.E.2d 891, 895 (1956); Perrin v. Rodriguez, 153 So. 555, 556-557 (La.App.1934); Schmucking v. Mayo, 183 Minn. 37, 235 N.W. 633 (1931); Thompson v. Barnard, 142 S.W.2d 238, 241 (Tex.Civ.App.1940), aff'd, 138 Tex. 277, 158 S.W.2d 486 (1942).
FN30. Emmett v. Eastern Dispensary & Cas.Hosp., 130 U.S.App.D.C. 50, 54, 396 F.2d 931, 935 (1967). See also, Swan, The California Law of Malpractice of Physicians, Surgeons, and Dentists, 33 Calif.L.Rev. 248, 251 (1945).
FN31. See cases cited supra notes 16-28; Berkey v. Anderson, 1 Cal.App.3d 790, 82 Cal.Rptr. 67, 78 (1970); Smith, Antecedent Grounds of Liability in the Practice of Surgery, 14 Rocky Mt.L.Rev. 233, 249-50 (1942); Swan, The California Law of Malpractice of Physicians, Surgeons, and Dentists, 33 Calif.L.Rev. 248, 251 (1945); Note, 40 Minn.L.Rev. 876, 879-80 (1956).
This disclosure requirement, on analysis, reflects much more of a change in doctrinal emphasis than a substantive addition to malpractice law. It is well established that the physician must seek and secure his patient's consent before commencing an operation or other course of treatment. [FN32] It is also clear that the consent, to be efficacious, must be free from imposition upon the patient. [FN33] It is the settled rule that therapy not authorized by the patient may amount to a tort-a common law battery-by the physician. [FN34] And it is evident that it is normally impossible to obtain a consent worthy of the name unless the physician first elucidates the options and the perils for the patient's edification. [FN35] Thus the physician has long borne a duty, on pain of liability for unauthorized treatment, to make adequate disclosure to the patient. [FN36] The evolution of the obligation to communicate for the patient's benefit as well as the physician's protection has hardly involved an extraordinary restructuring of the law.
FN32. See cases collected in Annot., 56 A.L.R.2d 695 (1967). Where the patient is incapable of consenting, the physician may have to obtain consent from someone else. See, e. g., Bonner v. Moran, 75 U.S.App.D.C. 156, 157-158, 126 F.2d 121, 122-123, 139 A.L.R. 1366 (1941).
FN33. See Restatement (Second) of Torts §§ 55-58 (1965).
FN34. See, e. g., Bonner v. Moran, supra note 32, 75 U.S.App.D.C. at 157, 126 F.2d at 122, and cases collected in Annot., 56 A.L.R.2d 695, 697-99 (1957). See also Part IX, infra.
FN35. See cases cited supra note 13. See also McCoid, The Care Required of Medical Practitioners, 12 Vand.L.Rev. 549, 587-91 (1959).
FN36. We discard the thought that the patient should ask for information before the physician is required to disclose. Caveat emptor is not the norm for the consumer of medical services. Duty to disclose is more than a call to speak merely on the patient's request, or merely to answer the patient's questions; it is a duty to volunteer, if necessary, the information the patient needs for intelligent decision. The patient may be ignorant, confused, overawed by the physician or frightened by the hospital, or even ashamed to inquire. See generally Note, Restructuring Informed Consent: Legal Therapy for the Doctor-Patient Relationship, 79 Yale L.J. 1533, 1545- 51 (1970). Perhaps relatively few patients could in any event identify the relevant questions in the absence of prior explanation by the physician. Physicians and hospitals have patients of widely divergent socio-economic backgrounds, and a rule which presumes a degree of sophistication which many members of society lack is likely to breed gross inequities. See Note, Informed Consent as a Theory of Medical Liability, 1970 Wis.L.Rev. 879, 891-97.
IV
Duty to disclose has gained recognition in a large number of American jurisdictions, [FN37] but more largely on a different rationale. The majority of courts dealing with the problem have made the duty depend on whether it was the custom of physicians practicing in the community to make the particular disclosure to the patient. [FN38] If so, the physician may be held liable for an unreasonable and injurious failure to divulge, but there can be no recovery unless the omission forsakes a practice prevalent in the profession. [FN39] We agree that the physician's noncompliance with a professional custom to reveal, like any other departure from prevailing medical practice, [FN40] may give rise to liability to the patient. We do not agree that the patient's cause of action is dependent upon the existence and nonperformance of a relevant professional tradition.
FN37. The number is reported at 22 by 1967. Comment, Informed Consent in Medical Malpractice, 55 Calif.L.Rev. 1396, 1397, and cases cited in n. 5 (1967).
FN38. See, e. g., DiFilippo v. Preston, 3 Storey 539, 53 Del. 539, 173 A.2d 333, 339 (1961); Haggerty v. McCarthy, 344 Mass. 136, 181 N.E.2d 562, 565, 566 (1962); Roberts v. Young, 369 Mich. 133, 119 N.W.2d 627, 630 (1963); Aiken v. Clary, 396 S.W.2d 668, 675, 676 (Mo. 1965). As these cases indicate, majorityrule courts hold that expert testimony is necessary to establish the custom.
FN39. See cases cited supra note 38.
FN40. See, e. g., W. Prosser, Torts § 33 at 171 (3d ed. 1964).
There are, in our view, formidable obstacles to acceptance of the notion that the physician's obligation to disclose is either germinated or limited by medical practice. To begin with, the reality of any discernible custom reflecting a professional concensus on communication of option and risk information to patients is open to serious doubt. [FN41] We sense the danger that what in fact is no custom at all may be taken as an affirmative custom to maintain silence, and that physician-witnesses to the so- called custom may state merely their personal opinions as to what they or others would do under given conditions. [FN42] We cannot gloss over the inconsistency between reliance on a general practice respecting divulgence and, on the other hand, realization that the myriad of variables among patients [FN43] makes each case so different that its omission can rationally be justified only by the effect of its individual circumstances. [FN44] Nor can we ignore the fact that to bind the disclosure obligation to medical usage is to arrogate the decision on revelation to the physician alone. [FN45] Respect for the patient's right of self-determination on particular therapy [FN46] demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves. [FN47]
FN41. See, e. g., Comment, Informed Consent in Medical Malpractice, 55 Calif.L.Rev. 1396, 1404-05 (1967); Comment, Valid Consent to Medical Treatment: Need the Patient Know?, 4 Duquesne L.Rev. 450, 458-59 (1966); Note, 75 Harv.L.Rev. 1445, 1447 (1962).
FN42. Comment, Informed Consent in Medical Malpractice, 55 Calif.L.Rev. 1396, 1404 (1967); Note, 75 Harv.L.Rev. 1445, 1447 (1962).
FN43. For example, the variables which may or may not give rise to the physician's privilege to withhold risk information for therapeutic reasons. See text Part VI, infra.
FN44. Note, 75 Harv.L.Rev. 1445, 1447 (1962).
FN45. E. g., W. Prosser, Torts § 32 at 168 (3d ed. 1964); Comment, Informed Consent in Medical Malpractice, 55 Calif.L.Rev. 1396, 1409 (1967).
FN46. See text supra at notes 12-13.
FN47. See Berkey v. Anderson, supra note 31, 82 Cal.Rptr. at 78; Comment, Informed Consent in Medical Malpractice, 55 Calif.L.Rev. 1396, 1409-10 (1967). Medical custom bared in the cases indicates the frequency with which the profession has not engaged in self-imposition. See, e. g., cases cited supra note 23.
More fundamentally, the majority rule overlooks the graduation of reasonable- care demands in Anglo-American jurisprudence and the position of professional custom in the hierarchy. The caliber of the performance exacted by the reasonable-care standard varies between the professional and non-professional worlds, and so also the role of professional custom. "With but few exceptions," we recently declared, "society demands that everyone under a duty to use care observe minimally a general standard." [FN48] "Familiarly expressed judicially," we added, "the yardstick is that degree of care which a reasonably prudent person would have exercised under the same or similar circumstances." [FN49] "Beyond this," however, we emphasized, "the law requires those engaging in activities requiring unique knowledge and ability to give a performance commensurate with the undertaking." [FN50] Thus physicians treating the sick must perform at higher levels than non-physicians in order to meet the reasonable care standard in its special application to physicians [FN51]-"that degree of care and skill ordinarily exercised by the profession in [the physician's] own or similar localities." [FN52] And practices adopted by the profession have indispensable value as evidence tending to establish just what that degree of care and skill is. [FN53]
FN48. Washington Hosp. Center v. Butler, 127 U.S.App.D.C. 379, 383, 384 F.2d 331, 335 (1967).
FN49. Id.
FN50. Id.
FN51. Id.
FN52. Rodgers v. Lawson, supra note 16, 83 U.S.App.D.C. at 282, 170 F.2d at 158. See also Brown v. Keaveny, supra note 16, 117 U.S.App.D.C. at 118, 326 F.2d at 661; Quick v. Thurston, supra note 16, 110 U.S.App.D.C. at 171, 290 F.2d at 362.
FN53. E. g., Washington Hosp. Center v. Butler, supra note 48, 127 U.S.App.D.C. at 383, 384 F.2d at 335. See also cases cited infra note 119.
We have admonished, however, that "[t]he special medical standards [FN54] are but adaptions of the general standard to a group who are required to act as reasonable men possessing their medical talents presumably would." [FN55] There is, by the same token, no basis for operation of the special medical standard where the physician's activity does not bring his medical knowledge and skills peculiarly into play. [FN56] And where the challenge to the physician's conduct is not to be gauged by the special standard, it follows that medical custom cannot furnish the test of its propriety, whatever its relevance under the proper test may be. [FN57] The decision to unveil the patient's condition and the chances as to remediation, as we shall see, is ofttimes a non-medical judgment [FN58] and, if so, is a decision outside the ambit of the special standard. Where that is the situation, professional custom hardly furnishes the legal criterion for measuring the physician's responsibility to reasonably inform his patient of the options and the hazards as to treatment.
FN54. Id. at 383 ns. 10-12, 384 F.2d at 335 ns. 10-12.
FN55. Id. at 384 n. 15, 384 F.2d at 336 n. 15.
FN56. E. g., Lucy Webb Hayes Nat. Training School v. Perotti, 136 U.S.App.D.C. 122, 127-129, 419 F.2d 704, 710-711 (1969); Monk v. Doctors Hosp., 131 U.S.App.D.C. 174, 177, 403 F.2d 580, 583 (1968); Washington Hosp. Center v. Butler, supra note 48.
FN57. Washington Hosp. Center v. Butler, supra note 48, 127 U.S.App.D.C. at 387-388, 384 F.2d at 336-337. See also cases cited infra note 59.
FN58. See Part V, infra.
The majority rule, moreover, is at war with our prior holdings that a showing of medical practice, however probative, does not fix the standard governing recovery for medical malpractice. [FN59] Prevailing medical practice, we have maintained, has evidentiary value in determinations as to what the specific criteria measuring challenged professional conduct are and whether they have been met, [FN60] but does not itself define the standard. [FN61] That has been our position in treatment cases, where the physician's performance is ordinarily to be adjudicated by the special medical standard of due care. [FN62] We see no logic in a different rule for nondisclosure cases, where the governing standard is much more largely divorced from professional considerations. [FN63] And surely in nondisclosure cases the factfinder is not invariably functioning in an area of such technical complexity that it must be bound to medical custom as an inexorable application of the community standard of reasonable care. [FN64]
FN59. Washington Hosp. Center v. Butler, supra note 48, 127 U.S.App.D.C. at 387-388, 384 F.2d at 336-337; Garfield Memorial Hosp. v. Marshall, 92 U.S.App.D.C. 234, 240, 204 F.2d 721, 726-727, 37 A.L.R.2d 1270 (1953); Byrom v. Eastern Dispensary & Cas. Hosp., 78 U.S.App.D.C. 42, 43, 136 F.2d 278, 279 (1943).
FN60. E. g., Washington Hosp. Center v. Butler, supra note 48, 127 U.S.App.D.C. at 383, 384 F.2d at 335. See also cases cited infra note 119.
FN61. See cases cited supra note 59.
FN62. See cases cited supra note 59.
FN63. See Part V, infra.
FN64. Comment, Informed Consent in Medical Malpractice, 55 Calif.L.Rev. 1396, 1405 (1967).
Thus we distinguished, for purposes of duty to disclose, the specialand general-standard aspects of the physician-patient relationship. When medical judgment enters the picture and for that reason the special standard controls, prevailing medical practice must be given its just due. In all other instances, however, the general standard exacting ordinary care applies, and that standard is set by law. In sum, the physician's duty to disclose is governed by the same legal principles applicable to others in comparable situations, with modifications only to the extent that medical judgment enters the picture. [FN65] We hold that the standard measuring performance of that duty by physicians, as by others, is conduct which is reasonable under the circumstances. [FN66]
FN65. See Part VI, infra.
FN66. See Note, 75 Harv.L.Rev. 1445, 1447 (1962). See also authorities cited supra notes 17-23.
Once the circumstances give rise to a duty on the physician's part to inform his patient, the next inquiry is the scope of the disclosure the physician is legally obliged to make. The courts have frequently confronted this problem but no uniform standard defining the adequacy of the divulgence emerges from the decisions. Some have said "full" disclosure, [FN67] a norm we are unwilling to adopt literally. It seems obviously prohibitive and unrealistic to expect physicians to discuss with their patients every risk of proposed treatment-no matter how small or remote [FN68]-and generally unnecessary from the patient's viewpoint as well. Indeed, the cases speaking in terms of "full" disclosure appear to envision something less than total disclosure, [FN69] leaving unanswered the question of just how much.
FN67. E. g., Salgo v. Leland Stanford Jr. Univ. Bd. of Trustees, 154 Cal.App.2d 560, 317 P.2d 170, 181 (1957); Woods v. Brumlop, supra note 13, 377 P.2d at 524-525.
FN68. See Stottlemire v. Cawood, 213 F.Supp. 897, 898 (D.D.C.), new trial denied, 215 F.Supp. 266 (1963); Yeates v. Harms, 193 Kan. 320, 393 P.2d 982, 991 (1964), on rehearing, 194 Kan. 675, 401 P.2d 659 (1965); Bell v. Umstattd, 401 S.W.2d 306, 313 (Tex.Civ.App.1966); Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw.U.L.Rev. 628, 635-38 (1970).
FN69. See, Comment, Informed Consent in Medical Malpractice, 55 Calif.L.Rev. 1396, 1402-03 (1967).
The larger number of courts, as might be expected, have applied tests framed with reference to prevailing fashion within the medical profession. [FN70] Some have measured the disclosure by "good medical practice," [FN71] others by what a reasonable practitioner would have bared under the circumstances, [FN72] and still others by what medical custom in the community would demand. [FN73] We have explored this rather considerable body of law but are unprepared to follow it. The duty to disclose, we have reasoned, arises from phenomena apart from medical custom and practice. [FN74] The latter, we think, should no more establish the scope of the duty than its existence. Any definition of scope in terms purely of a professional standard is at odds with the patient's prerogative to decide on projected therapy himself. [FN75] That prerogative, we have said, is at the very foundation of the duty to disclose, [FN76] and both the patient's right to know and the physician's correlative obligation to tell him are diluted to the extent that its compass is dictated by the medical profession. [FN77]
FN70. E. g., Shetter v. Rochelle, 2 Ariz.App. 358, 409 P.2d 74, 86 (1965), modified, 2 Ariz.App. 607, 411 P.2d 45 (1966); Ditlow v. Kaplan, 181 So.2d 226, 228 (Fla.App.1965); Williams v. Menehan, 191 Kan. 6, 379 P.2d 292, 294 (1963); Kaplan v. Haines, 96 N.J.Super. 242, 232 A.2d 840, 845 (1967) aff'd, 51 N.J. 404, 241 A.2d 235 (1968); Govin v. Hunter, 374 P.2d 421, 424 (Wyo.1962). This is not surprising since, as indicated, the majority of American jurisdictions find the source, as well as the scope, of duty to disclose in medical custom. See text supra at note 38.
FN71. Shetter v. Rochelle, supra note 70, 409 P.2d at 86.
FN72. E. g., Ditlow v. Kaplan, supra note 70, 181 So.2d at 228; Kaplan v. Haines, supra note 70, 232 A.2d at 845.
FN73. E. g., Williams v. Menehan, supra note 70, 379 P.2d at 294; Govin v. Hunter, supra note 70, 374 P.2d at 424.
FN74. See Part III, supra.
FN75. See text supra at notes 12-13.
FN76. See Part III, supra.
FN77. For similar reasons, we reject the suggestion that disclosure should be discretionary with the physician. See Note, 109 U.Pa.L.Rev. 768, 772- 73 (1961).
In our view, the patient's right of self-decision shapes the boundaries of the duty to reveal. That right can be effectively exercised only if the patient possesses enough information to enable an intelligent choice. The scope of the physician's communications to the patient, then, must be measured by the patient's need, [FN78] and that need is the information material to the decision. Thus the test for determining whether a particular peril must be divulged is its materiality to the patient's decision: all risks potentially affecting the decision must be unmasked. [FN79] And to safeguard the patient's interest in achieving his own determination on treatment, the law must itself set the standard for adequate disclosure. [FN80]
FN78. See text supra at notes 12-15.
FN79. See Waltz & Scheuneman, Informed Consent to Therapy, 64 N.W.U.L.Rev. 628, 639-41 (1970).
FN80. See Comment, Informed Consent in Medical Malpractice, 55 Calif.L.Rev. 1396, 1407-10 (1967).
Optimally for the patient, exposure of a risk would be mandatory whenever the patient would deem it significant to his decision, either singly or in combination with other risks. Such a requirement, however, would summon the physician to second-guess the patient, whose ideas on materiality could hardly be known to the physician. That would make an undue demand upon medical practitioners, whose conduct, like that of others, is to be measured in terms of reasonableness. Consonantly with orthodox negligence doctrine, the physician's liability for nondisclosure is to be determined on the basis of foresight, not hindsight; no less than any other aspect of negligence, the issue on nondisclosure must be approached from the viewpoint of the reasonableness of the physician's divulgence in terms of what he knows or should know to be the patient's informational needs. If, but only if, the fact- finder can say that the physician's communication was unreasonably inadequate is an imposition of liability legally or morally justified. [FN81]
FN81. See Waltz & Scheuneman, Informed Consent to Therapy, 64 N.W.U.L.Rev. 628, 639-40 (1970).
Of necessity, the content of the disclosure rests in the first instance with the physician. Ordinarily it is only he who is in position to identify particular dangers; always he must make a judgment, in terms of materiality, as to whether and to what extent revelation to the patient is called for. He cannot know with complete exactitude what the patient would consider important to his decision, but on the basis of his medical training and experience he can sense how the average, reasonable patient expectably would react. [FN82] Indeed, with knowledge of, or ability to learn, his patient's background and current condition, he is in a position superior to that of most others- attorneys, for example-who are called upon to make judgments on pain of liability in damages for unreasonable miscalculation. [FN83]
FN82. Id.
FN83. Id.
From these considerations we derive the breadth of the disclosure of risks legally to be required. The scope of the standard is not subjective as to either the physician or the patient; it remains objective with due regard for the patient's informational needs and with suitable leeway for the physician's situation. In broad outline, we agree that "[a] risk is thus material when a reasonable person, in what the physician knows or should know to be the patient's position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy." [FN84]
FN84. Id. at 640.
The category of risks which the physician should communicate is, of course, no broader than the complement he could communicate. See Block v. McVay, 80 S.D. 469, 126 N.W.2d 808, 812 (1964). The duty to divulge may extend to any risk he actually knows, but he obviously cannot divulge any of which he may be unaware. Nondisclosure of an unknown risk does not, strictly speaking, present a problem in terms of the duty to disclose although it very well might pose problems in terms of the physician's duties to have known of it and to have acted accordingly. See Waltz & Scheuneman, Informed Consent to Therapy, 64 N.W.U.L.Rev. 628, 630-35 (1970). We have no occasion to explore problems of the latter type on this appeal.
The topics importantly demanding a communication of information are the inherent and potential hazards of the proposed treatment, the alternatives to that treatment, if any, and the results likely if the patient remains untreated. The factors contributing significance to the dangerousness of a medical technique are, of course, the incidence of injury and the degree of the harm threatened. [FN85] A very small chance of death or serious disablement may well be significant; a potential disability which dramatically outweighs the potential benefit of the therapy or the detriments of the existing malady may summons discussion with the patient. [FN86]
FN85. See Comment, Informed Consent in Medical Malpractice, 55 Calif.L.Rev. 1396, 1407 n. 68 (1967).
FN86. See Bowers v. Talmage, supra note 13 (3% chance of death, paralysis or other injury, disclosure required); Scott v. Wilson, 396 S.W.2d 532 (Tex.Civ.App.1965), aff'd, 412 S.W.2d 299 (Tex.1967) (1% chance of loss of hearing, disclosure required). Compare, where the physician was held not liable. Stottlemire v. Cawood, supra note 68, (1/800,000 chance of aplastic anemia); Yeates v. Harms, supra note 68 (1.5% chance of loss of eye); Starnes v. Taylor, 272 N.C. 386, 158 S.E.2d 339, 344 (1968) (1/250 to 1/500 chance of perforation of esophagus).
There is no bright line separating the significant from the insignificant; the answer in any case must abide a rule of reason. Some dangers-infection, for example-are inherent in any operation; there is no obligation to communicate those of which persons of average sophistication are aware. [FN87] Even more clearly, the physician bears no responsibility for discussion of hazards the patient has already discovered, [FN88] or those having no apparent materiality to patients' decision on therapy. [FN89] The disclosure doctrine, like others marking lines between permissible and impermissible behavior in medical practice, is in essence a requirement of conduct prudent under the circumstances. Whenever nondisclosure of particular risk information is open to debate by reasonable-minded men, the issue is for the finder of the facts. [FN90]
FN87. Roberts v. Young, supra note 38, 119 N.W.2d at 629-630; Starnes v. Taylor, supra note 86, 158 S.E.2d at 344; Comment, Informed Consent in Medical Malpractice, 55 Calif.L.Rev. 1396, 1407 n. 69 (1967); Note, 75 Harv.L.Rev. 1445, 1448 (1962).
FN88. Yeates v. Harms, supra note 68, 393 P.2d at 991; Fleishman v. Richardson-Merrell, Inc., 94 N.J.Super. 90, 226 A.2d 843, 845-846 (1967). See also Natanson v. Kline, supra note 12, 350 P.2d at 1106.
FN89. See text supra at note 84. And compare to the contrary, Oppenheim, Informed Consent to Medical Treatment, 11 Clev.-Mar. L.Rev. 249, 264-65 (1962); Comment, Valid Consent to Medical Treatment: Need the Patient Know?, 4 Duquesne L.Rev. 450, 457-58 (1966), a position we deem unrealistic. On the other hand, we do not subscribe to the view that only risks which would cause the patient to forego the treatment must be divulged, see Johnson, Medical Malpractice-Doctrines of Res Ipsa Loquitur and Informed Consent, 37 U.Colo.L.Rev. 182, 185-91 (1965); Comment, Informed Consent in Medical Malpractice, 55 Calif.L.Rev. 1396, 1407 n. 68 (1967); Note, 75 Harv.L.Rev. 1445, 1446-47 (1962), for such a principle ignores the possibility that while a single risk might not have that effect, two or more might do so. Accord, Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw.U.L.Rev. 628, 635-41 (1970).
FN90. E. g., Bowers v. Talmage, supra note 13, 159 So.2d at 889; Aiken v. Clary, supra note 38, 396 S.W.2d at 676; Hastings v. Hughes, 59 Tenn.App. 98, 438 S.W.2d 349, 352 (1968).
VI
Two exceptions to the general rule of disclosure have been noted by the courts. Each is in the nature of a physician's privilege not to disclose, and the reasoning underlying them is appealing. Each, indeed, is but a recognition that, as important as is the patient's right to know, it is greatly outweighed by the magnitudinous circumstances giving rise to the privilege. The first comes into play when the patient is unconscious or otherwise incapable of consenting, and harm from a failure to treat is imminent and outweighs any harm threatened by the proposed treatment. When a genuine emergency of that sort arises, it is settled that the impracticality of conferring with the patient dispenses with need for it. [FN91] Even in situations of that character the physician should, as current law requires, attempt to secure a relative's consent if possible. [FN92] But if time is too short to accommodate discussion, obviously the physician should proceed with the treatment. [FN93]
FN91. E. g., Dunham v. Wright, supra note 13, 423 F.2d at 941-942 (applying Pennsylvania law); Koury v. Follo, 272 N.C. 366, 158 S.E.2d 548, 555 (1968); Woods v. Brumlop, supra note 13, 377 P.2d at 525; Gravis v. Physicians & Surgeons Hosp., 415 S.W.2d 674, 677, 678 (Tex.Civ.App.1967).
FN92. Where the complaint in suit is unauthorized treatment of a patient legally or factually incapable of giving consent, the established rule is that, absent an emergency, the physician must obtain the necessary authority from a relative. See, e. g., Bonner v. Moran, supra note 32, 75 U.S.App.D.C. at 157-158, 126 F.2d at 122-123 (15-year old child). See also Koury v. Follo, supra note 91 (patient a baby).
FN93. Compare, e. g., Application of President & Directors of Georgetown College, 118 U.S.App.D.C. 80, 331 F.2d 1000, rehearing en banc denied, 118 U.S.App.D.C. 90, 331 F.2d 1010, cert. denied, Jones v. President and Directors of Georgetown College, Inc., 377 U.S. 978, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964).
The second exception obtains when risk-disclosure poses such a threat of detriment to the patient as to become unfeasible or contraindicated from a medical point of view. It is recognized that patients occasionally become so ill or emotionally distraught on disclosure as to foreclose a rational decision, or complicate or hinder the treatment, or perhaps even pose psychological damage to the patient. [FN94] Where that is so, the cases have generally held that the physician is armed with a privilege to keep the information from the patient, [FN95] and we think it clear that portents of that type may justify the physician in action he deems medically warranted. The critical inquiry is whether the physician responded to a sound medical judgment that communication of the risk information would present a threat to the patient's well-being.
FN94. See, e. g., Salgo v. Leland Stanford Jr. Univ. Bd. of Trustees, supra note 67, 317 P.2d at 181 (1957); Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw.U.L.Rev. 628, 641-43 (1970).
FN95. E. g., Roberts v. Wood, 206 F.Supp. 579, 583 (S.D.Ala.1962); Nishi v. Hartwell, 52 Haw. 188, 473 P.2d 116, 119 (1970); Woods v. Brumlop, supra note 13, 377 P.2d at 525; Ball v. Mallinkrodt Chem. Works, 53 Tenn.App. 218, 381 S.W.2d 563, 567-568 (1964).
The physician's privilege to withhold information for therapeutic reasons must be carefully circumscribed, however, for otherwise it might devour the disclosure rule itself. The privilege does not accept the paternalistic notion that the physician may remain silent simply because divulgence might prompt the patient to forego therapy the physician feels the patient really needs. [FN96] That attitude presumes instability or perversity for even the normal patient, and runs counter to the foundation principle that the patient should and ordinarily can make the choice for himself. [FN97] Nor does the privilege contemplate operation save where the patient's reaction to risk information, as reasonable foreseen by the physician, is menacing. [FN98] And even in a situation of that kind, disclosure to a close relative with a view to securing consent to the proposed treatment may be the only alternative open to the physician. [FN99]
FN96. E. g., Scott v. Wilson, supra note 86, 396 S.W.2d at 534-535; Comment, Informed Consent in Medical Malpractice, 55 Calif.L.Rev. 1396, 1409-10 (1967); Note, 75 Harv.L.Rev. 1445, 1448 (1962).
FN97. See text supra at notes 12-13.
FN98. Note, 75 Harv.L.Rev. 1445, 1448 (1962).
FN99. See Fiorentino v. Wenger, 26 A.D.2d 693, 272 N.Y.S.2d 557, 559 (1966), appeal dismissed, 18 N.Y.2d 908, 276 N.Y.S.2d 639, 223 N.E.2d 46 (1966), reversed on other grounds, 19 N.Y.2d 407, 280 N.Y.S.2d 373, 227 N.E.2d 296 (1967). See also note 92, supra.
VII
No more than breach of any other legal duty does nonfulfillment of the physician's obligation to disclose alone establish liability to the patient. An unrevealed risk that should have been made known must materialize, for otherwise the omission, however unpardonable, is legally without consequence. Occurrence of the risk must be harmful to the patient, for negligence unrelated to injury is nonactionable. [FN100] And, as in malpractice actions generally, [FN101] there must be a causal relationship between the physician's failure to adequately divulge and damage to the patient. [FN102]
FN100. Becker v. Colonial Parking, Inc., 133 U.S.App.D.C. 213, 219-220, 409 F.2d 1130, 1136-1137 (1969); Richardson v. Gregory, 108 U.S.App.D.C. 263, 266-267, 281 F.2d 626, 629-630 (1960); Arthur v. Standard Eng'r. Co., 89 U.S.App.D.C. 399, 401, 193 F.2d 903, 905, 32 A.L.R.2d 408 (1951), cert. denied, 343 U.S. 964, 72 S.Ct. 1057, 96 L.Ed. 1361 (1952); Industrial Savs. Bank v. People's Funeral Serv. Corp., 54 App.D.C. 259, 260, 296 F. 1006, 1007 (1924).
FN101. See Morse v. Moretti, 131 U.S.App.D.C. 158, 403 F.2d 564 (1968); Kosberg v. Washington Hosp. Center, Inc., 129 U.S.App.D.C. 322, 324, 394 F.2d 947, 949 (1968); Levy v. Vaughan, 42 U.S.App.D.C. 146, 153, 157 (1914).
FN102. Shetter v. Rochelle, supra note 70, 409 P.2d at 82-85; Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw.U.L.Rev. 628, 646 (1970).
A causal connection exists when, but only when, disclosure of significant risks incidental to treatment would have resulted in a decision against it. [FN103] The patient obviously has no complaint if he would have submitted to the therapy notwithstanding awareness that the risk was one of its perils. On the other hand, the very purpose of the disclosure rule is to protect the patient against consequences which, if known, he would have avoided by foregoing the treatment. [FN104] The more difficult question is whether the factual issue on causality calls for an objective or a subjective determination.
FN103. Shetter v. Rochelle, supra note 70, 409 P.2d at 83-84. See also Natanson v. Kline, supra note 12, 350 P.2d at 1106-1107; Hunter v. Burroughs, supra note 7, 96 S.E. at 369.
FN104. See text supra at notes 23-35, 74-79.
It has been assumed that the issue is to be resolved according to whether the factfinder believes the patient's testimony that he would not have agreed to the treatment if he had known of the danger which later ripened into injury. [FN105] We think a technique which ties the factual conclusion on causation simply to the assessment of the patient's credibility is unsatisfactory. To be sure, the objective of risk-disclosure is preservation of the patient's interest in intelligent self-choice on proposed treatment, a matter the patient is free to decide for any reason that appeals to him. [FN106] When, prior to commencement of therapy, the patient is sufficiently informed on risks and he exercises his choice, it may truly be said that he did exactly what he wanted to do. But when causality is explored at a postinjury trial with a professedly uninformed patient, the question whether he actually would have turned the treatment down if he had known the risks is purely hypothetical: "Viewed from the point at which he had to decide, would the patient have decided differently had he known something he did not know?" [FN107] And the answer which the patient supplies hardly represents more than a guess, perhaps tinged by the circumstance that the uncommunicated hazard has in fact materialized. [FN108]
FN105. Plante, An Analysis of "Informed Consent," 36 Fordham L.Rev. 639, 666-67 (1968); Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw.U.L.Rev. 628, 646-48 (1970); Comment, Informed Consent in Medical Malpractice, 55 Calif.L.Rev. 1396, 1411-14 (1967).
FN106. See text supra at notes 12-13.
FN107. Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw.U.L.Rev. 628, 647 (1970).
FN108. Id. at 647.
In our view, this method of dealing with the issue on causation comes in second-best. It places the physician in jeopardy of the patient's hindsight and bitterness. It places the factfinder in the position of deciding whether a speculative answer to a hypothetical question is to be credited. It calls for a subjective determination solely on testimony of a patient-witness shadowed by the occurrence of the undisclosed risk. [FN109]
FN109. Id. at 646.
Better it is, we believe, to resolve the causality issue on an objective basis: in terms of what a prudent person in the patient's position would have decided if suitably informed of all perils bearing significance. [FN110] If adequate disclosure could reasonably be expected to have caused that person to decline the treatment because of the revelation of the kind of risk or danger that resulted in harm, causation is shown, but otherwise not. [FN111] The patient's testimony is relevant on that score of course but it would not threaten to dominate the findings. And since that testimony would probably be appraised congruently with the factfinder's belief in its reasonableness, the case for a wholly objective standard for passing on causation is strengthened. Such a standard would in any event ease the fact-finding process and better assure the truth as its product.
FN110. Id. at 648.
FN111. See cases cited supra note 103.
VIII
In the context of trial of a suit claiming inadequate disclosure of risk information by a physician, the patient has the burden of going forward with evidence tending to establish prima facie the essential elements of the cause of action, and ultimately the burden of proof-the risk of nonpersuasion [FN112]-on those elements. [FN113] These are normal impositions upon moving litigants, and no reason why they should not attach in nondisclosure cases is apparent. The burden of going forward with evidence pertaining to a privilege not to disclose, [FN114] however, rests properly upon the physician. This is not only because the patient has made out a prima facie case before an issue on privilege is reached, but also because any evidence bearing on the privilege is usually in the hands of the physician alone. Requiring him to open the proof on privilege is consistent with judicial policy laying such a burden on the party who seeks shelter from an exception to a general rule and who is more likely to have possession of the facts. [FN115]
FN112. See 9 J. Wigmore, Evidence § 2485 (3d ed. 1940).
FN113. See, e. g., Morse v. Moretti, supra note 101, 131 U.S.App.D.C. at 158, 403 F.2d at 564; Kosberg v. Washington Hosp. Center, Inc., supra note 101, 129 U.S.App.D.C. at 324, 394 F.2d at 949; Smith v. Reitman, 128 U.S.App.D.C. 352, 353, 389 F.2d 303, 304 (1967).
FN114. See Part VI, supra.
FN115. See 9 J. Wigmore, Evidence § 2486, 2488, 2489 (3d ed. 1940). See also Raza v. Sullivan, 139 U.S.App.D.C. 184, 186-188, 432 F.2d 617, 619- 621 (1970), cert. denied, 400 U.S. 992, 91 S.Ct. 458, 27 L.Ed.2d 440 (1971).
As in much malpractice litigation, [FN116] recovery in nondisclosure lawsuits has hinged upon the patient's ability to prove through expert testimony that the physician's performance departed from medical custom. This is not surprising since, as we have pointed out, the majority of American jurisdictions have limited the patient's right to know to whatever boon can be found in medical practice. [FN117] We have already discussed our disagreement with the majority rationale. [FN118] We now delineate our view on the need for expert testimony in nondisclosure cases.
FN116. See cases cited infra note 119.
FN117. See text supra at notes 37-39.
FN118. See Part IV, supra.
There are obviously important roles for medical testimony in such cases, and some roles which only medical evidence can fill. Experts are ordinarily indispensible to identify and elucidate for the factfinder the risks of therapy and the consequences of leaving existing maladies untreated. They are normally needed on issues as to the cause of any injury or disability suffered by the patient and, where privileges are asserted, as to the existence of any emergency claimed and the nature and seriousness of any impact upon the patient from risk-disclosure. Save for relative infrequent instances where questions of this type are resolvable wholly within the realm of ordinary human knowledge and experience, the need for the expert is clear. [FN119]
FN119. Lucy Webb Hayes Nat. Training School v. Perotti, supra note 56, 136 U.S.App.D.C. at 126-127, 419 F.2d at 708-709 (hospital's failure to install safety glass in psychiatric ward); Alden v. Providence Hosp., 127 U.S.App.D.C. 214, 217, 382 F.2d 163, 166 (1967) (caliber of medical diagnosis); Brown v. Keaveny, supra note 16, 117 U.S.App.D.C. at 118, 326 F.2d at 661 (caliber of medical treatment); Quick v. Thurston, supra note 16, 110 U.S.App.D.C. at 171-173, 290 F.2d at 362-364 (sufficiency of medical attendance and caliber of medical treatment); Rodgers v. Lawson, supra note 16, 83 U.S.App.D.C. at 285-286, 170 F.2d at 161-162 (sufficiency of medical attendance, and caliber of medical diagnosis and treatment); Byrom v. Eastern Dispensary & Cas. Hosp., supra note 59, 78 U.S.App.D.C. at 43, 136 F.2d at 279 (caliber of medical treatment), Christie v. Callahan, 75 U.S.App.D.C. 133, 136, 124 F.2d 825, 828 (1941) (caliber of medical treatment); Carson v. Jackson, 52 App.D.C. 51, 55, 281 F. 411, 415 (1922) (caliber of medical treatment).
The guiding consideration our decisions distill, however, is that medical facts are for medical experts [FN120] and other facts are for any witnesses- expert or not-having sufficient knowledge and capacity to testify to them. [FN121] It is evident that many of the issues typically involved in nondisclosure cases do not reside peculiarly within the medical domain. Lay witness testimony can competently establish a physician's failure to disclose particular risk information, the patient's lack of knowledge of the risk, and the adverse consequences following the treatment. [FN122] Experts are unnecessary to a showing of the materiality of a risk to a patient's decision on treatment, or to the reasonably, expectable effect of risk disclosure on the decision. [FN123] These conspicuous examples of permissible uses of nonexpert testimony illustrate the relative freedom of broad areas of the legal problem of risk nondisclosure from the demands for expert testimony that shackle plaintiffs' other types of medical malpractice litigation. [FN124]
FN120. See cases cited supra note 119.
FN121. Lucy Webb Hayes Nat. Training School v. Perotti, supra note 56, 136 U.S.App.D.C. at 127-129, 419 F.2d at 709-711 (permitting patient to wander from closed to open section of psychiatric ward); Monk v. Doctors Hosp., supra note 56, 131 U.S.App.D.C. at 177, 403 F.2d at 583 (operation of electro-surgical machine); Washington Hosp. Center v. Butler, supra note 48 (fall by unattendded x-ray patient); Young v. Fishback, 104 U.S.App.D.C. 372, 373, 262 F.2d 469, 470 (1958) (bit of gauze left at operative site); Garfield Memorial Hosp. v. Marshall, supra note 59, 92 U.S.App.D.C. at 240, 204 F.2d at 726 (newborn baby's head striking operating table); Goodwin v. Hertzberg, 91 U.S.App.D.C. 385, 386, 201 F.2d 204, 205 (1952) (perforation of urethra); Byrom v. Eastern Dispensary & Cas. Hosp., supra note 59, 78 U.S.App.D.C. at 43, 136 F.2d at 279 (failure to further diagnose and treat after unsuccessful therapy); Grubb v. Groover, 62 App.D.C. 305, 306, 67 F.2d 511, 512 (1933), cert. denied, 291 U.S. 660, 54 S.Ct. 377, 78 L.Ed. 1052 (1934) (burn while unattended during x-ray treatment). See also Furr v. Herzmark, 92 U.S.App.D.C. 350, 353-354, 206 F.2d 468, 470-471 (1953); Christie v. Callahan, supra note 119, 75 U.S.App.D.C. at 136, 124 F.2d at 828; Sweeney v. Erving, 35 App.D.C. 57, 62, 43 L.R.A.,N.S. 734 (1910), aff'd, 228 U.S. 233, 33 S.Ct. 416, 57 L.Ed. 815 (1913).
FN122. See Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw.U.L.Rev. 628, 645, 647 (1970); Comment, Informed Consent in Medical Malpractice, 55 Calif.L.Rev. 1396, 1410-11 (1967).
FN123. See Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw.U.L.Rev. 628, 639-40 (1970); Comment, Informed Consent in Medical Malpractice, 55 Calif.L.Rev. 1396, 1411 (1967).
FN124. One of the chief obstacles facing plaintiffs in malpractice cases has been the difficulty, and all too frequently the apparent impossibility, of securing testimony from the medical profession. See, e. g., Washington Hosp. Center v. Butler, supra note 48, 127 U.S.App.D.C. at 386 n. 27, 384 F.2d at 338 n. 27; Brown v. Keaveny, supra note 16, 117 U.S.App.D.C. at 118, 326 F.2d at 661 (dissenting opinion); Huffman v. Lindquist, 37 Cal.2d 465, 234 P.2d 34, 46 (1951) (dissenting opinion); Comment, Informed Consent in Medical Malpractice, 55 Calif.L.Rev. 1396, 1405-06 (1967); Note, 75 Harv.L.Rev. 1445, 1447 (1962).
IX
We now confront the question whether appellant's suit was barred, wholly or partly, by the statute of limitations. The statutory periods relevant to this inquiry are one year for battery actions [FN125] and three years for those charging negligence. [FN126] For one a minor when his cause of action accrues, they do not begin to run until he has attained his majority. [FN127] Appellant was nineteen years old when the laminectomy and related events occurred, and he filed his complaint roughly two years after he reached twenty- one. Consequently, any claim in suit subject to the one-year limitation came too late.
FN125. D.C.Code § 12-301(4) (1967).
FN126. D.C.Code § 12-301(8), specifying a three-year limitation for all actions not otherwise provided for. Suits seeking damages for negligent personal injury or property damage are in this category. Finegan v. Lumbermens Mut. Cas. Co., 117 U.S.App.D.C. 276, 329 F.2d 231 (1963); Keleket X-Ray Corp. v. United States, 107 U.S.App.D.C. 138, 275 F.2d 167 (1960); Hanna v. Fletcher, 97 U.S.App.D.C. 310, 313, 231 F.2d 469, 472, 58 A.L.R.2d 847, cert. denied, Gichner Iron Works, Inc. v. Hanna, 351 U.S. 989, 76 S.Ct. 1051, 100 L.Ed. 1501 (1956).
FN127. D.C.Code § 12-302(a) (1) (1967). See also Carson v. Jackson, supra note 119, 52 App.D.C. at 53, 281 F. at 413.
Appellant's causes of action for the allegedly faulty laminectomy by Dr. Spence and allegedly careless post-operative care by the hospital present no problem. Quite obviously, each was grounded in negligence and so was governed by the three-year provision. [FN128] The duty-to-disclose claim appellant asserted against Dr. Spence, however, draws another consideration into the picture. We have previously observed that an unauthorized operation constitutes a battery, and that an uninformed consent to an operation does not confer the necessary authority. [FN129] If, therefore, appellant had at stake no more than a recovery of damages on account of a laminectomy intentionally done without intelligent permission, the statute would have interposed a bar.
FN128. See cases cited supra note 126.
FN129. See text supra at notes 32-36.
It is evident, however, that appellant had much more at stake. [FN130] His interest in bodily integrity commanded protection, not only against an intentional invasion by an unauthorized operation [FN131] but also against a negligent invasion by his physician's dereliction of duty to adequately disclose. [FN132] Appellant has asserted and litigated a violation of that duty throughout the case. [FN133] That claim, like the others, was governed by the three-year period of limitation applicable to negligence actions [FN134] and was unaffected by the fact that its alternative was barred by the one-year period pertaining to batteries. [FN135]
FN130. For discussions of the differences between battery and negligence actions, see, McCoid, A Reappraisal of Liability for Unauthorized Medical Treatment, 41 Minn.L.Rev. 381, 423-25 (1957); Comment, Informed Consent in Medical Malpractice, 55 Calif.L.Rev. 1396, 1399-1400 n. 18 (1967); Note 75 Harv.L.Rev. 1445, 1446 (1962).
FN131. See Natanson v. Kline, supra note 12, 350 P.2d at 1100; Restatement (Second) of Torts §§ 13, 15 (1965).
FN132. The obligation to disclose, as we have said, is but a part of the physician's general duty to exercise reasonable care for the benefit of his patient. See Part III, supra.
FN133. Thus we may distinguish Morfessis v. Baum, 108 U.S.App.D.C. 303, 305, 281 F.2d 938, 940 (1960), where an action labeled one for abuse of process was, on analysis, found to be really one for malicious prosecution.
FN134. See Maercklein v. Smith, 129 Colo. 72, 266 P.2d 1095, 1097-1098 (en banc 1954); Hershey v. Peake, 115 Kan. 562, 223 P. 1113 (1924); Mayor v. Dowsett, 240 Or. 196, 400 P.2d 234, 250-251 (en banc 1965); McCoid, A Reappraisal of Liability for Unauthorized Medical Treatment, 41 Minn.L.Rev. 381, 424-25, 434 (1957); McCoid, The Care Required of Medical Practitioners, 12 Vand.L.Rev. 586-87 (1959); Plante, An Analysis of "Informed Consent," 36 Fordham L.Rev. 639, 669-71 (1968); Comment, Informed Consent in Medical Malpractice, 55 Calif.L.Rev. 1396, 1399-4100 n. 18 (1967); Note, 75 Harv.L.Rev. 1445, 1446 (1962).
FN135. See Mellon v. Seymoure, 56 App.D.C. 301, 303, 12 F.2d 836, 837 (1926); Pedesky v. Bleiberg, 251 Cal.App.2d 119, 59 Cal.Rptr. 294 (1967).
X
This brings us to the remaining question, common to all three causes of action: whether appellant's evidence was of such caliber as to require a submission to the jury. On the first, the evidence was clearly sufficient to raise an issue as to whether Dr. Spence's obligation to disclose information on risks was reassonably met or was excused by the surrounding circumstances. Appellant testified that Dr. Spence revealed to him nothing suggesting a hazard associated with the laminectomy. His mother testified that, in response to her specific inquiry, Dr. Spence informed her that the laminectomy was no more serious than any other operation. When, at trial, it developed from Dr. Spence's testimony that paralysis can be expected in one percent of laminectomies, it became the jury's responsibility to decide whether that peril was of sufficient magnitude to bring the disclosure duty into play. [FN136] There was no emergency to frustrate an opportunity to disclose, [FN137] and Dr. Spence's expressed opinion that disclosure would have been unwise did not foreclose a contrary conclusion by the jury. There was no evidence that appellant's emotional makeup was such that concealment of the risk of paralysis was medically sound. [FN138] Even if disclosure to appellant himself might have bred ill consequences, no reason appears for the omission to communicate the information to his mother, particularly in view of his minority. [FN139] The jury, not Dr. Spence, was the final arbiter of whether nondisclosure was reasonable under the circumstances. [FN140]
FN136. See text supra at notes 81-90.
FN137. See text supra at notes 91-92.
FN138. See Part VI, supra. With appellant's prima facie case of violation of duty to disclose, the burden of introducing evidence showing a privilege was on Dr. Spence. See text supra at notes 114-115. Dr. Spence's opinion- that disclosure is medically unwise-was expressed as to patients generally, and not with reference to traits possessed by appellant. His explanation was:
I think that I always explain to patients the operations are serious, and I feel that any operation is serious. I think that I would not tell patients that they might be paralyzed because of the small percentage, one per cent, that exists. There would be a tremendous percentage of people that would not have surgery and would not therefore be benefited by it, the tremendous percentage that get along very well, 99 per cent.
FN139. See Part VI, supra. Since appellant's evidence was that neither he nor his mother was informed by Dr. Spence of the risk of paralysis from the laminectomy, we need not decide whether a parent's consent to an operation on a nineteen-year-old is ordinarily required. Compare Bonner v. Moran, supra note 32, 75 U.S.App.D.C. at 157-158, 126 F.2d at 122-123.
FN140. See Part V, supra.
Proceeding to the next cause of action, we find evidence generating issues as to whether Dr. Spence performed the laminectomy negligently and, if so, whether that negligence contributed causally to appellant's subsequent disabilities. A report Dr. Spence prepared after the second operation indicated that at the time he felt that too-tight sutures at the laminectomy site might have caused the paralysis. While at trial Dr. Spence voiced the opinion that the sutures were not responsible, there were circumstances lending support to his original view. Prior to the laminectory, appellant had none of the disabilities of which he now complains. The disabilities appeared almost immediately after the laminectomy. The gusset Dr. Spence made on the second operation left greater room for the spinal cord to pulsate, and this alleviated appellant's condition somewhat. That Dr. Spence's in-trial opinion was hardly the last word is manifest from the fact that the team of specialists consulting on appellant was unable to settle on the origin of the paralysis.
We are advertent to Dr. Spence's attribution of appellant's disabilities to his condition preexisting the laminectomy, but that was a matter for the jury. And even if the jury had found that theory acceptable, there would have remained the question whether Dr. Spence aggravated the preexisting condition. A tortfeasor takes his victim as he finds him, and negligence intensifying an old condition creates liability just as surely as negligence precipitating a new one. [FN141] It was for the jury to say, on the whole evidence, just what contributions appellant's preexisting condition and Dr. Spence's medical treatment respectively made to the disabilities.
FN141. Bourne v. Washburn, 142 U.S.App.D.C. 332, 336, 441 F.2d 1022, 1026 (1971); Clark v. Associated Retail Credit Men, 70 App.D.C. 183, 187, 105 F.2d 62, 66 (1939); Baltimore & O. R. R. v. Morgan, 35 App.D.C. 195, 200-201 (1910); Washington A. & M. V. Ry. v. Lukens, 32 App.D.C. 442, 453-454 (1909).
In sum, judged by legal standards, the proof militated against a directed verdict in Dr. Spence's favor. True it is that the evidence did not furnish ready answers on the dispositive factual issues, but the important consideration is that appellant showed enough to call for resolution of those issues by the jury. As in Sentilles v. Inter-Carribbean Shipping Corporation, [FN142] a case resembling this one, the Supreme Court stated,
FN142. 361 U.S. 107, 80 S.Ct. 173, 4 L.Ed.2d 142 (1959).
The jury's power to draw the inference that the aggravation of petitioner's tubercular condition, evident so shortly after the accident, was in fact caused by that accident, was not impaired by the failure of any medical witness to testify that it was in fact the cause. Neither can it be impaired by the lack of medical unanimity as to the respective likelihood of the potential causes of the aggravation, or by the fact that other potential causes of aggravation existed and were not conclusively negated by the proofs. The matter does not turn on the use of a particular form of words by the physicians in giving their testimony. The members of the jury, not the medical witnesses, were sworn to make a legal determination of the question of causation. They were entitled to take all the circumstances, including the medical testimony into consideration. [FN143]
FN143. Id. at 109-110, 80 S.Ct. at (footnote omitted).
We conclude, lastly, that the case against the hospital should also have gone to the jury. The circumstances surrounding appellant's fall-the change in Dr. Spence's order that appellant be kept in bed, [FN144] the failure to maintain a side rail on appellant's bed, and the absence of any attendant while appellant was attempting to relieve himself-could certainly suggest to jurors a dereliction of the hospital's duty to exercise reasonable care for the safety and well-being of the patient. [FN145] On the issue of causality, the evidence was uncontradicted that appellant progressed after the operation until the fall but, a few hours thereafter, his condition had deteriorated, and there were complaints of paralysis and respiratory difficulty. That falls tend to cause or aggravate injuries is, of course, common knowledge, which in our view the jury was at liberty to utilize. [FN146] To this may be added Dr. Spence's testimony that paralysis can be brought on by trauma or shock. All told, the jury had available a store of information enabling an intelligent resolution of the issues respecting the hospital. [FN147]
FN144. Even if Dr. Spence himself made the change, the result would not vary as to the hospital. It was or should have been known by hospital personnel that appellant had just undergone a serious operation. A jury might fairly conclude that at the time of the fall he was in no condition to be left to fend for himself. Compare Washington Hosp. Center v. Butler, supra note 48, 127 U.S.App.D.C. at 385, 384 F.2d at 337.
FN145. Compare id. See also cases cited supra note 121.
FN146. See id. at 383-385, 384 F.2d at 335-337.
FN147. See id.
We realize that, when appellant rested his case in chief, the evidence scarcely served to put the blame for appellant's disabilities squarely on one appellee or the other. But this does not mean that either could escape liability at the hand of the jury simply because appellant was unable to do more. As ever so recently we ruled, "a showing of negligence by each of two (or more) defendants with uncertainty as to which caused the harm does not defeat recovery but passes the burden to the tortfeasors for each to prove, if he can, that he did not cause the harm." [FN148] In the case before us, appellant's evidentiary presentation on negligence survived the claims of legal insufficiency, and appellees should have been put to their proof. [FN149]
FN148. Bowman v. Redding & Co., 145 U.S.App.D.C. 294, 305, 449 F.2d 956, 967 (1971).
FN149. Appellant's remaining points on appeal require no elaboration. He contends that his counsel, not the trial judge, should have conducted the voir dire examination of prospective jurors, but that matter lay within the discretion of the judge, Fed.R.Civ.P. 47(a). He argues that Mrs. Canterbury, a rebuttal witness, should not have been excluded from the courtroom during other stages of the trial. That also was within the trial judge's discretion and, in any event, no prejudice from the exclusion appears. He complains of the trial judge's refusal to admit into evidence by-laws of the hospital pertaining to written consent for surgery, and the judge's refusal to permit two physicians to testify as to medical custom and practice on the same general subject. What we have already said makes it unnecessary for us to deal further with those complaints.
Reversed and remanded for a new trial.
Docket No.: SJC-07807
Parties: IAN SHINE, administrator,(1) vs. JOSE VEGA & another.(2)
County:Suffolk
Dates: January 8, 1999. - April 29, 1999Present: Wilkins, C.J., Abrams, Lynch, Greaney, Fried, Marshall, &
Ireland, JJ.
Practice, Civil, Instructions to jury. Medical Malpractice, Consent to medical treatment. Negligence, Medical malpractice. Doctor, Duty to disclose to patient. Constitutional Law, Right to refuse medical treatment. Evidence, Burden of going forward, Declaration of deceased person.
Civil action commenced in the Superior Court Department on March 19, 1993.The case was tried before Margaret R. Hinkle, J.The Supreme Judicial Court on its own initiative transferred the case from the Appeals Court.
Michael J. Traft for the plaintiff.
Joseph P. Musacchio for the defendants.
MARSHALL, J. In this wrongful death case, we must resolve the conflict between the right of a competent adult to refuse medical treatment and the interest of a physician in preserving life without fear of liability. In 1990, an invasive procedure, intubation,(3) was forcibly performed on Catherine Shine(Catherine),(4) a life-long asthmatic in the midst of a severe asthma attack.Dr. Jose Vega, an emergency physician at Massachusetts General Hospital (MGH),initiated the intubation without Catherine's consent and over her repeated and vigorous objections. In 1993, Dr. Ian Shine, Catherine's father and the administrator of her estate, brought a multi-count complaint against Dr. Vegaand MGH seeking damages for tortious conduct and the wrongful death of his daughter.(5) He alleged that Catherine was traumatized by this painful experience, and that it led to her death two years later. On that occasion,Catherine again suffered a severe asthma attack but refused to go to a hospital because, it was claimed, she had developed an intense fear of hospitals. Her father alleged that Catherine's delay in seeking medical help was a substantial factor in causing her death.
At trial the defendants took the position that, confronted with a life-threatening emergency, Dr. Vega was not required to obtain consent for treatment from either Catherine or her family. A judge in the Superior Court agreed, and charged the jury that no patient has a right to refuse medicaltreatment in a life-threatening situation. She also instructed that in an emergency the physician need not obtain the consent of the patient or her family to proceed with invasive treatment. A jury returned verdicts for the defendants on all counts. Dr. Shine appeals from the judgment entered on the jury verdicts,and from the denial of his motion for judgment notwithstanding the verdict or anew trial. He contends that the trial judge incorrectly instructed the jury that(1) a patient's right to refuse medical treatment does not apply in an"emergency" medical situation; (2) it is not a battery for a physician to treat a patient without obtaining consent if the treatment is necessary to prevent death or serious bodily harm; and (3) it is not false imprisonment forcibly tor estrain a patient in a life-threatening situation. He also challenges the judge's ruling excluding certain notes Catherine made concerning her treatment at MGH. We transferred the case here on our own motion. We conclude that the instructions were erroneous, and that the errors were prejudicial. We vacate the judgment and remand the case to the Superior Court for a new trial.
I
At approximately 7 A.M. on Sunday, March 18, 1990, twenty-nine year old Catherine Shine arrived at the MGH emergency room seeking medical help for an asthma attack. Catherine had been asthmatic throughout most of her life, a condition she controlled through prescription medication. The daughter of a physician, Catherine had educated herself about her condition and was well informed about her illness. Her asthmatic attacks were characterized by rapid onset, followed by a rapid remission. She had never required intubation in the past.
Earlier that morning, Catherine had suffered a severe asthma attack at her sister Anna's apartment. Despite believing that her condition was improving after using her prescription inhaler, Catherine agreed with Anna's suggestion to go to MGH, but on the condition that she be administered only oxygen. After Anna received assurances from an MGH representative that Catherine would be treated with just oxygen, Catherine entered the MGH emergency department, accompanied by Anna.
Catherine initially was given a nebulizer, a mask placed over her mouth which delivered oxygen and medication. She complained to Anna that the medication was giving her a headache, removed the mask and indicated that she wished to leave the hospital. Catherine's behavior alarmed the nurse who was treating her. An arterial blood gas test, measuring the levels of oxygen and carbon dioxide in here blood, was drawn at approximately 7:15 A.M. The results, obtained at approximately 7:30 A.M., showed that Catherine was "very sick." Dr. Vega, the only emergency room attending physician on staff at MGH that morning, examined Catherine and concluded that she required intubation. Catherine resisted, and Dr. Vega initially agreed to try more conservative treatment with the oxygen mask. Catherine continued to disagree with the medical staff concerning her treatment.
Anna, frustrated by what she felt was a medical staff unwilling to listen to her sister, telephoned their father, Dr. Shine, who was in England. Dr. Shine had treated Catherine when she was a child and was familiar with Catherine's condition. Dr. Shine spoke to an MGH physician and told him(6) that Catherine was intelligent and "very well-informed" about her illness, and he urged the physician to listen to Catherine and to try to obtain her consent for any treatment. Dr. Vega testified that he told Dr. Shine that Catherine was in "the midst of an extremely severe asthma attack," and that he unsuccessfully had tried to avoid intubation. Dr. Vega testified that Dr. Shine asked him to wait until he flew to Boston before intubating Catherine. He also testified that he had made a "conscious decision" not to tell Catherine that her father had opposed intubation.
Anna returned to Catherine's room to find her in a "heated" argument with the MGH staff. Catherine's condition had improved somewhat, and she was able to talk and to breathe more easily. At approximately 7:40 A.M., during a moment when the doctors left Catherine and Anna alone together, Catherine told Anna to "run."They ran down the corridor to the emergency room exit doors, where they were forcibly apprehended by a physician and a security guard. Catherine was "walked back" to her room where Dr. Vega immediately ordered that she be placed in four-point restraints, in part because she had refused treatment and attempted to leave the emergency room.(7) Catherine and Anna were forcibly separated. Dr.Vega initiated the process of having Catherine intubated. At approximately 8A.M., the results of a second blood gas test became available, showing that Catherine's condition had improved somewhat. Dr. Vega testified that the results, even if he had read them (he had not), would not have changed his decision to intubate Catherine. At approximately 8:25 A.M., the intubation procedure commenced, approximately forty-five minutes after Catherine had been strapped in four- point restraints. Catherine never consented to this treatment.Dr. Vega testified that he never discussed with Catherine the risks and benefits of intubation. Neither Anna, who was still at the hospital, nor Dr. Shine was asked to consent to the intubation. Catherine was released from MGH the following day.
Catherine's family testified that she was traumatized by these events. She had nightmares, cried constantly, and was unable to return to work for several months. For the first time in her life, they said, she was obsessed about her medication and what she ate. Catherine became suspicious of physicians, and repeatedly "swore" she would never go to a hospital again. In July, 1992,Catherine suffered another severe asthma attack while at home with her fiancé and her brother. She did not want to go to a hospital. After she became unconscious, her brother called an ambulance. Despite two days of medical treatment at South Shore Hospital, she died.
II
Dr. Shine's central claim both at trial and on appeal is that Dr. Vega and MGH wrongfully restrained and intubated Catherine without her consent.(8) He sought to show that Catherine's mental abilities at the relevant times were not impaired, and that she was not facing a life-threatening emergency when she was restrained and intubated.(9) The defense took the position that Dr. Vega was confronted with a life- threatening emergency, and Catherine's consent was not necessary.(10) On appeal they argue that a medical emergency operates as a limentation on the "abstract right" of a patient to refuse treatment, and that in this situation a doctor may override a patient's right to refuse treatment.(11)
The judge instructed the jury that "under Massachusetts law a patient has the right to refuse medical treatment except in an emergency, life-threatening situation" (emphasis added). It was therefore up to the jury, she said, to determine whether or not such a situation existed. She repeated that instruction, emphasizing "[o]nce again" that "the law in Massachusetts is that a patient has the right to refuse medical treatment except in an emergency,life-threatening situation." She told the jury that this was not a case of"informed consent" because Catherine's right to refuse to be intubated was "not an absolute right." It is a right constrained by "the right of the state or the obligation of the state to preserve the lives of its citizens. . . a right that exists in an emergency room setting to perform treatment without the consent of the patient," she charged.
The judge repeated this several times. On the element of negligence, she instructed that "[i]f there is a life-threatening circumstance, then the hospital, its employees, and Doctor Vega have the right to treat Catherine Shine without getting her consent or anybody else's consent, whatever her condition .. ." (emphasis added). "In other words," she said, "a physician who . . . has reason to believe that the failure to conduct a procedure such as intubation would create a likelihood of serious harm to the patient by reason of a life-threatening situation may perform that procedure without the consent of the patient."(12)
As to the assault and battery count, she instructed "that a doctor and/or a hospital does not commit an assault and battery when they treat a patientwithout her consent if the treatment is necessary to save her life or to prevent serious bodily harm." On the charge of false imprisonment, the judge instructed that medical personnel may confine a patient without her consent, "if there is reason to believe that a person in an emergency room is suffering from a life-threatening situation." She repeated that "[i]t is lawful for the hospital and for Doctor Vega to have confined Catherine Shine if she is experiencing a life-threatening emergency. That is justified."
A
The defendants first argue that Dr. Shine did not adequately preserve his challenge to the jury instructions on the emergency exception to tort liability because he failed to convey to the judge the definition of an "emergency" he espouses on appeal -- that there must be a life-threatening situation and the patient must be unconscious or otherwise incapable of giving her consent. We conclude that the issue was not waived: the question whether Catherine's consent was required before intubation was a live issue throughout trial, and was properly preserved. The plaintiff objected to the judge's refusal to instruct the jury on Catherine's competence, and he objected to the defendants' instructions on the emergency exception espoused by the defendants and adopted by the judge. Moreover, the defendants had the burden of proving that an exception relieved them of tort liability. See Harnish v. Children's Hosp.Medical Ctr., 387 Mass. 152, 157 (1982) (burden of proving privilege rests with physician), citing Canterbury v. Spence, 464 F.2d 772, 791 (D.C. Cir.), cert.denied, 409 U.S. 1064 (1972) (defendant bears "burden of going forward with evidence pertaining to a privilege" because it is "consistent with judicial policy laying such a burden on the party who seeks shelter from an exception to a general rule and who is more likely to have possession of the facts").(13)
B
In Norwood Hosp. v. Munoz, 409 Mass. 116, 121 (1991), we considered in what circumstances a "competent individual may refuse medical treatment which is necessary to save that individual's life." We described in that case both the common law and constitutional bases for our recognition of the "right of a competent individual to refuse medical treatment." Id. at 122. See Brophy v. NewEngland Sinai Hosp., Inc., 398 Mass. 417, 430 (1986); Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 739, 742 (1977) (right to refuse medical treatment is rooted in common-law jurisprudence and guaranteed through constitutional right to privacy); Matter of Spring, 380 Mass. 629, 634(1980). We recognized that "[e]very competent adult has a right 'to [forgo]treatment, or even cure, if it entails what for [her] are intolerable consequences or risks however unwise [her] sense of values may be in the eyes of the medical profession.'" Harnish v. Children's Hosp. Medical Ctr., supra at154, quoting Wilkinson v. Vesey, 110 R.I. 606, 624 (1972).
In Norwood Hosp. v. Munoz, supra at 122-123, we also described how the "right to bodily integrity" had developed through the doctrine of informed consent. See Harnish v. Children's Hosp. Medical Ctr., supra. Under that doctrine, "a physician has the duty to disclose to a competent adult 'sufficient information to enable the patient to make an informed judgment whether to give or withhold consent to a medical or surgical procedure.'" Norwood Hosp. v. Munoz, supra at123, quoting Harnish v. Children's Hosp. Med. Ctr., supra at 154-155. We again stressed that it is "for the individual to decide whether a particular medicaltreatment is in [her] best interests," "whether that decision is wise or unwise," and that a patient's right to refuse medical treatment, after having been informed by her physician of the risks involved, is not undermined because the treatment involves "life-saving procedures." Norwood Hosp. v. Munoz, supra,quoting Lane v. Candura, 6 Mass. App. Ct. 377, 383 (1978).(14)
Dr. Vega and MGH concede that Catherine exercised her right to refuse medical treatment and never consented to intubation. But, they argue, Dr. Vega could override Catherine's wishes as long as he acted "appropriately and consistent with the standard of accepted medical practice" and "to save and preserve her life in an emergency situation." It was not necessary, they argue, to instruct the jury on a competent patient's right to refuse medical treatment because it was, in their words, "largely irrelevant" to the critical liability question --whether Catherine faced a life-threatening situation.
The emergency exception to the informed consent doctrine has been widely recognized and its component elements broadly described. See, e.g., W.L. Prosser& W.P. Keeton, Torts § 18, at 117-118 (5th ed. 1984)(15); Meisel, The"Exceptions" to the Informed Consent Doctrine: Striking a Balance Between Competing Values in Medical Decision making, 1979 Wis. L. Rev. 413, 430-438. See also Restatement (Second) of Torts § 892D (1979) (emergency action without consent). In Matter of Spring, 380 Mass. 629, 634 (1980), we held that "a competent person has a general right to refuse medical treatment in appropriate circumstances, to be determined by balancing the individual interest against countervailing State interests, particularly the State interest in the preservation of life."(16) We went on to say that "[u]nless there is an emergency or an overriding State interest, medical treatment of a competent patient without his consent is said to be a battery." Id. at 638. We did not elaborate on the requirements of the emergency exception to the informed consent doctrine because that issue was not presented. In Canterbury v. Spence, 464 F.2d772 (D.C. Cir. 1972), a seminal case, the court explained that the emergency exception(17) "comes into play when the patient is unconscious or otherwise incapable of consenting, and harm from a failure to treat is imminent and outweighs any harm threatened by the proposed treatment. When a genuine emergency of that sort arises, it is settled that the impracticality of conferring with the patient dispenses with need for it. Even in situations of that character the physician should, as current law requires, attempt to secure a relative's consent if possible. But if time is too short to accommodate discussion, obviously the physician should proceed with the treatment." Id. at 788-789.
See Restatement (Second) of Torts § 892D (a) (1979) ("emergency makes it necessary or apparently necessary, in order to prevent harm to the other, to act before there is opportunity to obtain consent from the other or one empowered to consent for him"). Consistent with other courts that have considered the issue,we recognize that the emergency-treatment exception cannot entirely subsume a patient's fundamental right to refuse medical treatment. The privilege does not and cannot override the refusal of treatment by a patient who is capable of providing consent. If the patient is competent, an emergency physician must obtain her consent before providing treatment, even if the physician is persuaded that, without the treatment, the patient's life is threatened. See Norwood Hosp. v. Munoz, supra at 130-131; Miller v. Rhode Island Hosp., 625 A.2d778, 784 (R.I. 1993) ("physician must respect the refusal of treatment by a patient who is capable of providing consent, even in an emergency"). If the patient's consent cannot be obtained because the patient is unconscious or otherwise incapable of consenting, the emergency physician should seek the consent of a family member if time and circumstances permit. See Restatement(Second) of Torts § 892D comment a (1979) ("privilege must necessarily be a limited one and can arise only . . . when there is no time to consult the other or one empowered to consent for him, or for reasons such as the unconsciousness of the other, his consent cannot be obtained"). See also Miller v. Rhode Island Hosp., supra at 784 ("[u]nder the emergency exception a medical-care provider should seek the consent of the patient or, if the patient is incapable of providing consent, the consent of a family member before administering treatment"), citing Canterbury v. Spence, supra at 789; Rodriguez v. Pino, 634So. 2d 681, 687 (Fla. Dist. Ct. App. 1994) (defining emergency as situation which "calls for immediate medical treatment and it is not feasible to obtain consent from one legally permitted to provide it" [emphasis in original]),citing Chambers v. Nottebaum, 96 So. 2d 716, 718 (Fla. Dist. Ct. App. 1957). If,and only if, the patient is unconscious or otherwise incapable of giving consent, and either time or circumstances do not permit the physician to obtain the consent of a family member, may the physician presume that the patient, if competent, would consent to life-saving medical treatment.(18) See Matter of Spring, 8 Mass. App. Ct. 831, 836 n.5 (1979), S.C., 380 Mass. 629 (1980). The"impracticality of conferring" with the patient or her family, Canterbury v.Spence, supra at 788-789, is an essential aspect of the emergency exception to the requirement that a physician obtain a patient's informed consent before proceeding with treatment. We are aware of no other court that has sanctioned the sweeping emergency privilege the defendants advocated here.
In the often chaotic setting of an emergency room, physicians and medical staff frequently must make split-second, life-saving decisions. Emergency medical personnel may not have the time necessary to obtain the consent of a family member when a patient is incapable of consenting without jeopardizing the well-being of the patient. But a competent patient's refusal to consent to medical treatment cannot be overridden whenever the patient faces a life-threatening situation.(19)
To determine whether an "emergency" existed sufficient to insulate Dr. Vega and MGH from all tort liability, the jury should have been required to decide whether Catherine was capable of consenting to treatment,(20) and, if not,whether the consent of a family member could have been obtained. It is up to the jury to determine whether the treating physician took sufficient steps, given all of the circumstances, to obtain either the patient's informed consent, or the consent of a family member. See Miller v. Rhode Island Hosp., supra at 787("[u]nder the emergency exception to informed consent it is within the domain of the jury to engage in fact finding concerning the existence of an emergency and a patient's competence to consent"). In this case the judge's charge foreclosed the jury from making those necessary determinations. The instructions were repeated several times by the judge. She asked the jury to consider first whether Catherine's life was threatened. If the jury answered that question affirmatively, the jury, in essence, were instructed to go no further. The jury instructions concerning assault and battery and false imprisonment were erroneous for the same reason: they were premised on the theory that, despite Catherine's refusal of treatment, the defendants were absolved of all liability if the jury determined that Catherine faced a life- threatening situation. On this record, there is no basis on which to conclude that the error was not prejudicial. A new trial is required.
III
Both parties moved in limine for a ruling on the admissibility of notes Catherine wrote about her experience at MGH. The judge made a preliminary ruling to exclude portions of Catherine's notes that characterized certain events, and she later ruled that the remaining notes were inadmissible. Dr. Shine challenges those rulings. We address the issue because it is likely to arise at retrial.
General Laws c. 233, § 65, provides that "a declaration of a deceased person shall not be inadmissible in evidence as hearsay . . . if the court finds that it was made in good faith and upon the personal knowledge of the declarant." The judge gave three reasons for excluding Catherine's notes: (1) uncertainty as to when they were created; (2) late disclosure of some of the notes; and (3)indications that they were made in anticipation of litigation. At retrial, the late disclosure of the notes will no longer be relevant. We comment on the other two reasons. The judge appeared to give the greatest weight to her finding that the notes were written in anticipation of litigation.(21) That a writing or statement is made in anticipation of litigation, or in preparation for a meeting with an attorney, does not necessarily mean that it is not made in "good faith."General Laws c. 233, § 65, has been "liberally construed as remedial legislation designed to mitigate under proper safeguards the hardship often resulting from the loss of evidence by reason of death." Berwin v. Levenson, 311 Mass. 239, 242(1942). When first enacted, the statute allowed for the admission of a statement only if it was made "before the beginning of the suit." St. 1898, c. 535. In1943, the statute was rewritten to remove that requirement, permitting in evidence statements by deceased persons made even after litigation began. St.1943, c. 232, § 1. If, under the amended statute, statements made after litigation has commenced are admissible, it cannot be that a statement made in anticipation of litigation is inherently not made in good faith.
Notes made in preparation for consulting an attorney are also not necessarily inadmissible. A person consulting an attorney may have the most compelling reasons to be honest: to permit an informed assessment of the strength of her possible legal claim. If the deceased person had an understanding of the attorney-client privilege, that might also bear on whether a statement is truthful (made in good faith), for the privilege protecting communications with an attorney exists to encourage honest communications between a person and her attorney. See Upjohn Co. v. United States, 449 U.S. 383, 389 (1981) (purpose of privilege "to encourage full and frank communication between attorneys and their clients"). See also Mass. R. Prof. C. 1.6 comment [2], 426 Mass. 1301, 1322(1998) (confidentiality "facilitates the full development of facts essential to proper representation").
As to the remaining reason given by the judge -- the uncertainty as to the date of the notes -- we cannot discern from this record why the date of creation necessarily is relevant. We have no indication that, whenever Catherine created the notes, she had any hint that she would not be alive if, and when, litigation commenced. The circumstances of her death suggest the contrary. It does not appear that Catherine created the notes with "an incentive to avoid blame,"Barbosa v. Hopper Feeds, Inc., 404 Mass. 610, 620 (1989), nor for the "specific purpose of making [them] available for use at a possible trial" or for"perpetuating the declarant's testimony," Anselmo v. Reback, 400 Mass. 865, 868,869 (1987). At the retrial, the judge will need to make her own determination whether any or all of the notes are admissible. On this record we cannot makethat judgment as a matter of law.
IV
The judgment is vacated and the case is remanded to the Superior Court for a new trial.
So ordered.
Footnote
(1) Of the estate of Catherine Shine.
(2) Massachusetts General Hospital.
(3) Intubation is a procedure by which a tube is inserted through either the nose or the mouth into the windpipe. The tube enables oxygen to be deliveredd irectly into the lungs, typically by means of a ventilator.
(4) We use Catherine's first name to distinguish her from her sister, Anna Shine(Anna).
(5) Dr. Shine alleged negligence, assault and battery, false imprisonment,intentional infliction of emotional distress, wrongful death, violation of Catherine's civil rights, and violation of the Massachusetts Patient Bill of Rights Act and cognate Federal rights. The complaint also sought damages for tortious conduct against Catherine's sister, Anna Shine. Dr. Shine later voluntarily dismissed all counts of the complaint relating to Anna.
(6) There was conflicting testimony concerning which MGH physician spoke to Dr.Shine, and whether the conversation occurred before or after Catherine was restrained. Dr. Shine testified that he spoke to an emergency room physician but that he did not believe it was Dr. Vega. Dr. Vega testified that he spoke to Dr.Shine that morning. For purposes of our decision, the conflicts are non material.
(7) Dr. Vega testified that Catherine's patient chart contained the reason for her forcible restraint: "Patient became more confused and combative, refusing treatment and suddenly ran down the hallway and nearly out of the [emergency ward] and brought back."
(8) Dr. Vega explained that in his judgment Catherine was too "confused" to give her assent and did not appreciate "the severity of her illness." He testified that he considered Catherine's "combative" behavior, refusal of treatment and attempt to flee as indications of her increasingly confused mental state. The plaintiff offered compelling evidence that Catherine was not incapable of giving her consent and, even if she had been, her family was readily available for consultation.
(9) Expert witnesses for Dr. Shine testified that the intubation procedure was not an appropriate treatment for Catherine, that MGH medical staff failed properly to evaluate Catherine's competency to consent to treatment, and that failure to comply with unwanted treatment does not necessarily indicate lack of competence. The plaintiff's experts also testified that the situation was not an emergency, that Catherine was able to make rational decisions, and that intubation should be used only if absolutely necessary because the patient may develop fear of future intubation. There was also expert testimony that Catherine's treatment at MGH was below the appropriate standard of care because no determination of her competence was made, and that, if she was incompetent,the treating physician should have but did not seek consent from her family.
(10) Several experts testified on behalf of the defendants that the actions of the MGH staff were appropriate, that if Catherine had been given only oxygen, as she requested, she likely would have died, and that Catherine's treatment at MGHwas not the type of experience that could produce posttraumatic stress disorder.
(11) In a non emergency setting, the right of an incompetent patient to consent to or to refuse medical treatment is protected by a judicial,"substituted-judgment" proceeding. Rogers v. Commissioner of the Dep't of MentalHealth, 390 Mass. 489, 504 (1983). The medical best interest of the patient is not the touchstone of a substituted judgment decision. Rather, the determination is "'that which would be made by the incompetent person, if that person were competent' . . . and giving 'the fullest possible expression to the character and circumstances of that individual." Id. at 500, quoting Superintendent of Belchertown State Sch. v. Saikewicz, 373 Mass. 728, 747, 752-753 (1977).
(12) The judge further instructed:
"[A] doctor, a hospital and its employees are permitted a wide range in the exercise of their professional judgment concerning the treatment to be given a patient as long as the exercise of that professional judgment is in accordance with the duty of care as I have described it to you. Once again, ordinarily a physician must obtain the consent of a patient before treatment. However, in an emergency room situation, a physician may undertake treatment provided that what he does is within the customary practice of physicians practicing his specialty in similar circumstances; and I have defined an emergency for you as a life-threatening situation or something akin to that."
(13) The judge correctly instructed that on the claim of false imprisonment, the defendant "has the burden of proof of establishing that Doctor Vega and [MGH]confined Catherine Shine because their confinement was justified by law." She did not instruct the jury that the defendants had the burden to prove that they were relieved of their obligation to obtain Catherine's informed consent before they restrained her or proceeded with the intubation.
(14) In Norwood Hosp. v. Munoz, 409 Mass. 116, 127 n.6 (1991), we cited with approval the holding of the New Jersey Supreme Court that, "[i]f the patient rejected the doctor's advice, the onus of that decision would rest on the patient, not the doctor. Indeed if the patient's right to informed consent is to have any meaning at all, it must be accorded respect even when it conflicts with the advice of the doctor or the values of the medical profession as a whole."(Citations omitted.) Id., quoting Matter of Conroy, 98 N.J. 321, 352-353 (1985).
(15) The requirements of the exception or privilege are:
"(a) the patient must be unconscious or without capacity to make a decision,while no one legally authorized to act as agent for the patient is available;(b) time must be of the essence, in the sense that it must reasonably appear that delay until such time as an effective consent could be obtained would subject the patient to a risk of a serious bodily injury or death which prompt action would avoid; and [c] under the circumstances, a reasonable person would consent, and the probabilities are that the patient would consent." W.L. Prosser& W.P. Keeton, Torts § 18, at 117 (5th ed. 1984).
(16) We later rejected a claim that the State's interest in the "preservation of life," including cases where the "patient's affliction is curable," overrides the individual decision of a competent adult to refuse medical treatment.Norwood Hosp. v. Munoz, supra at 125.
(17) The exception is sometimes referred to as a "privilege" for physicians to act without the consent of their patients. See, e.g., W.L. Prosser & W.P.Keeton, supra at § 18, at 117-118.
(18) The Restatement (Second) of Torts § 892D (b) (1979) provides, in addition,a substituted judgment component of the privilege. Liability will not attach if"the actor has no reason to believe that the other, if he had the opportunity to consent, would decline." The comment to the section further explicates that,"[i]f the actor knows or has reason to know, because of past refusals or other circumstances, that the consent would not be given, he is not privileged to act."
(19) In Norwood Hosp. v. Munoz, supra at 127, we said that the State's interest in maintaining the ethical integrity of the profession does not outweigh the patient's right to refuse unwanted medical treatment: "[T]he ethical integrity of the profession is not threatened by allowing competent patients to decide for themselves whether a particular medical treatment is in their best interests."Id., citing Matter of Conroy, supra at 352.
(20) A physician, and a jury, may reasonably take into account a patient'sr efusal to consent to life-saving medical treatment in determining whether the patient is competent to consent to or refuse treatment, but this factor is not dispositive. See Lane v. Candura, 6 Mass. App. Ct. 377, 383 (1978) (patient's refusal to consent to life-saving amputation in itself was not sufficient to render her legally incompetent for purposes of appointing guardian).
(21) The notes, for example, contained names of attorneys and a telephone number, and questions: "Could he represent me? Or suggest the best representation?" The notes also stated, "I want to try and establish a way to assure that this doesn't happen to other people -- like [M]iranda rights -- a formal procedure whereby doctors must gain consent and can't misuse power." When asked by the judge for evidence that the notes were not made in anticipation of litigation, plaintiff's counsel responded, "I don't think we have any affirmative evidence."
429 Mass. 130, 706 N.E.2d 658
SANTOS v. KIM
Supreme Judicial Court of Massachusetts, Middlesex
Argued Feb. 4, 1999; Decided March 4, 1999Parents of child who died as newborn from severe brain damage due to mother's Rh negative blood condition sued director of hematology laboratory for medical malpractice. The Superior Court Department, Diane M. Kottmyer, J., dismissed claim based on malpractice tribunal's finding that parents' offer of proof was insufficient, and parents appealed. Upon transfer on Supreme Court's own motion, the Court, Fried, J., held that: (1) existence of doctor-patient relationship is not a predicate for statutory jurisdiction of malpractice tribunal; (2) action was properly before malpractice tribunal based on director's status as provider of medical services; and (3) parents' offer of proof raised legitimate question of director's malpractice liability. Vacated and remanded.
Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL, & IRELAND, JJ.
FRIED, J. The plaintiffs are the parents of a child born with severe brain damage who died one day after delivery by Caesarian section. The mother (plaintiff) sues on her own behalf and as administratrix of her child's estate. During a previous pregnancy, the mother was found to be Rh negative, a blood condition which, if not promptly treated, can lead to severe fetal damage and death to the child. For this reason, those undertaking the plaintiff's obstetrical care regularly had blood tests performed so as to allow an appropriate response if the blood condition recurred. These tests were performed at the clinical laboratory of the MetroWest Medical Center, Inc. (MetroWest). The suit alleges that, after a particular blood test, two weeks went by before her obstetricians became aware that the test had indicated a dangerous level of antibodies and that, as a result, proper treatment was unduly delayed, resulting in an unnecessary Caesarian section and the death of the child. The plaintiffs sued the obstetricians and the obstetrical group who cared for her, MetroWest, and Dr. Adner, the associate chief of medicine at MetroWest and director of the MetroWest blood bank and hematology laboratory.
At the defendants' request, a medical malpractice tribunal (tribunal), consisting of a judge in the Superior Court, a physician, and an attorney, was convened, pursuant to G.L. c. 231, § 60B, to which the plaintiff submitted her claims, offering to prove that all of the defendants had acted negligently and that Adner had acted negligently because the laboratory had no policies or procedures for assuring that treating physicians are promptly notified of dangerously abnormal results in tests such as were performed for the plaintiffs. The obstetrical practice and the laboratory were located at separate MetroWest campuses and, according to evidence before the tribunal, it was the laboratory's practice to have test results delivered to the doctors' offices at the other campus by an independent courier service. According to a letter from the treating physician to the plaintiff after the death of her child, the physician stated that he had "routinely" been informed by telephone when there was an abnormality, but in this case he "did not receive a phone call or written report." The tribunal found "sufficient evidence to raise a legitimate question of liability appropriate for judicial inquiry" in respect to the obstetricians, the obstetrical practice, and MetroWest. As to Dr. Adner, however, the tribunal found that there was not sufficient evidence. The plaintiffs declined to post the bond required by § 60B in case of such an adverse finding, and a judge in the Superior Court granted Adner's motion to dismiss the case against him. The plaintiffs appealed, and we transferred the case here on our own motion.
I
The plaintiff and the defendant disagree about whether they stood as doctor and patient to each other. The plaintiff contends that, if there was no doctor-patient relationship, then the medical tribunal had no jurisdiction over the case and she should have been permitted to bring the case as a simple negligence action in the Superior Court. In that event, replies the defendant, he is not liable as a matter of law, as he owed the plaintiff no duty. [FN4]
FN4. The defendant also argues that the plaintiff's jurisdictional argument comes too late, having been raised for the first time in this appeal. Because we conclude that the case was properly before the tribunal, we need not decide whether this would be the sort of jurisdictional argument that may be raised at any time.
A
The parties spend considerable effort arguing about whether a doctor-patient relationship existed between the plaintiff and Dr. Adner, the director of the laboratory. They are invited to this exercise by our cases. In Doherty v. Hellman, 406 Mass. 330, 547 N.E.2d 931 (1989), we asked whether the director of a radiation therapy service stood in that relationship to the patient of another doctor in the facility. We held he did not. And in Lambley v. Kameny, 43 Mass.App.Ct. 277, 682 N.E.2d 907 (1997), the Appeals Court asked whether a psychiatrist who examined an applicant for employment at the request of the prospective employer and, by his alleged misdiagnosis, caused the candidate not to be hired, stood in such a relation to the candidate. The court concluded that he did. Section 60B does not require the existence of a doctor-patient relationship as a predicate for its application. It states that "[e]very action for malpractice, error or mistake against a provider of health care shall be heard by a tribunal consisting of a single justice of the superior court, a physician ... and an attorney...." The statute goes on to state that "a provider of health care shall mean a person, corporation, facility or institution licensed by the commonwealth to provide health care or professional services as a physician ... [or] hospital ... or an officer, employee or agent thereof acting in the course and scope of his employment." Our early cases involving G.L. c. 231, § 60B, inserted by St.1975 c. 362, § 5, do not speak of this requirement. See Little v. Rosenthal, 376 Mass. 573, 382 N.E.2d 1037 (1978); Campbell v. Thornton, 368 Mass. 528, 333 N.E.2d 442 (1975). In Campbell, supra, the question arose whether the chief of the medical staff of a hospital could be held liable for an accident that occurred on one of the hospital's services, and we said: "The claim against Dr. MacDonald is predicated solely on the fact that ... the doctor was the chief of the hospital's medical staff. This alone is not sufficient to impose liability on him for the negligence ... of other doctors or of agents ... of the hospital.... His position ... would not, without more, make Dr. MacDonald liable under the doctrine of respondeat superior...." Id. at 535-536, 333 N.E.2d 442. The term doctor-patient relationship (as a predicate for the applicability of § 60B) crept into the law, it appears, in Kapp v. Ballantine, 380 Mass. 186, 193, 402 N.E.2d 463 (1980), where--in a case which did not turn on the issue--we summarized the law as follows: "A plaintiff's offer of proof as to negligence will prevail before a malpractice tribunal, under the Little directed-verdict test, (1) if a doctor-patient relationship is shown, (2) if there is evidence that the doctor's performance did not conform to good medical practice, and (3) if damage resulted therefrom." We offered as authority Little v. Rosenthal, supra, which nowhere uses the term or adverts to the concept. It has, however, become boilerplate. This is unfortunate. The term has relevance not in establishing the applicability of § 60B but in establishing whether a particular defendant has the requisite duty of care to a particular plaintiff sufficient to lay the predicate for malpractice as negligence, or for breach of a contractual undertaking to the patient, or for a failure to obtain appropriate consent from the patient. We discuss this distinct issue below. In respect to § 60B, however, although there may be difficulties at the margins in determining who is a health care provider within the terms of the statute, see Perez v. Bay State Ambulance & Hosp. Rental Serv., Inc., 413 Mass. 670, 675-676, 602 N.E.2d 570 (1992) (ambulance company not health care provider), the introduction of the term "doctor-patient relationship" may be an example of explaining the obscure by the more obscure. In Lambley, supra, the Appeals Court obviously demoted the requirement of such a relationship, id. at 283, 682 N.E.2d 907 (assuming "without deciding, that such a relationship or its equivalent is a jurisdictional prerequisite") relative to the threshold set out in the statute itself. Although it was far from clear that the psychiatrist stood in such a relationship to the prospective employee, it was a great deal clearer that, in making his diagnosis, the psychiatrist was a provider of health care. And we also agree with the Appeals Court that this focus accords with at least one important purpose of § 60B, that there be expert screening of cases "which directly implicate the professional judgment or competence of a provider." Id. at 282, 682 N.E.2d 907.
Viewed in this light, there can be no doubt at all that the plaintiffs sued Dr. Adner in his capacity as a provider of health care. The suit against MetroWest, which performed the laboratory services, has been allowed to proceed, and not surprisingly. If Dr. Adner were charged with overbilling or some other such claim having nothing to do with the exercise of medical judgment, we might have a different case, but the complaint against Dr. Adner implicated the same issues of medical judgment as those that must lie at the basis of the plaintiffs' claim against MetroWest. In modern medical practice, there is a variety of services performed by skilled practitioners who never encounter the patient personally: radiologists read X-rays, ultra-sound recordings, MRI and CAT scans, all of which may have been physically administered by technicians who produce the records that are then interpreted; pathologists examine tissue samples obtained from the patient by others; and laboratory tests of various sorts are performed in complicated organizational settings, where the person actually encountering the patient may be the least skilled member of the system.
We have no difficulty in concluding that, if the suit against Dr. Adner may proceed at all, it must be as he is a "provider of medical services," and therefore under the procedures set out in § 60B.
B
That this was a suit against Dr. Adner in respect to the provision of medical services does not, however, end the inquiry. The analysis, interpretation, and reporting of the blood tests were medical services within the terms of the statute. The dispute which occupies the parties here, regarding the existence of a doctor-patient relationship, may be better understood as centering on the question whether it was the defendant who provided those services. The claimed malpractice, or wrongful conduct, or breach of duty by Dr. Adner was his failure to institute practices and procedures such that critical test results reached a patient's physician promptly. What must be shown is that this defendant had such a duty and that it was a duty owed to the plaintiff. [FN5] This poses the troubling issue in this case more sharply than the amorphous question whether Dr. Adner stood in a doctor- patient relationship to the plaintiffs.
FN5. Assuming there was such a duty and it was indeed owed to the plaintiff, there will be further questions. For example, what was the practice for transmitting critical results to treating physicians; had Dr. Adner acted reasonably by allowing the routine (if that was the routine) for delivering test results--the use of an independent courier service--to remain in place; did the results reach the physician's office in regular course and the failure to take them into account occur thereafter?
There is a variety of organizational schemes that obtains in the provision of modern medical services. In the Doherty case, supra, the plaintiff based her claim on negligent treatment and on the failure to inform her of the risks of an innovative course of radiation therapy. The defendant was not her treating physician. Rather, he was the director of the center at which she was treated. He had designed and pioneered the treatment that patients at the center received and set the standards for its administration. He reviewed the results of treatments in the center and reported them in the medical literature. See id. at 334, 547 N.E.2d 931. Because the defendant was not the plaintiff's treating physician and because her treating physician had undertaken to provide her with appropriate informed consent, we held that the defendant could not be held liable on his own account for any negligence or failure to inform the plaintiff. Nor could he be held vicariously liable as director of the program for any negligence or failure of the treating physician. This is an important result because medical services are often rendered in settings with some degree of hierarchical organization, at the head of which is a senior, respected figure, even though the patients receive treatment from their own physicians, who are skilled professionals expected to exercise independent judgment. The Campbell case, supra, is an extreme example of this attempt to impose personal liability on one who occupies a place, as chief of a hospital's medical staff, at the top of that hierarchy. On the other hand, just because so much of modern medical service is rendered in bureaucratized and segmented settings, it is important not to announce a rule in terms of which no human being is ever responsible for failures in the system--although, of course, the organization (here MetroWest) as an entity may be liable. Returning to the example of the radiologist who interprets an X-ray taken, usually, not by the radiologist but by a technician, it could scarcely be maintained that the radiologist does not have a duty to the patient to read the film with care, and, if it seems to have been inadequately produced, to direct that it be taken again. Similarly, the radiologist obviously has a duty to the patient to report significant results to the patient's treating physician. If he does not do the reporting himself but entrusts it to others, it is a fair question whether the steps he took to have the report reach its destination were reasonable--whether or not they succeeded.
This case does not fall in any obvious way under any of the competing paradigms. Needless to say, Dr. Adner personally did not draw the patient's blood nor perform the analysis himself. If crucial results were not noticed or not communicated to her treating physician, this may have been the result of negligence on some person's part. But the work of a unit may be so compartmentalized and routinized that no such person exists, and then the fault--if there is fault--would only be that of the unit and the institution of which it is a part. (As we have noted, a medical tribunal has allowed the suit against MetroWest to proceed.) This would be analogous to tort cases in which only a corporate defendant is liable for negligence and no individual employee can be identified who shares responsibility personally with the corporation. We must avoid holding that in every case where there is institutional liability there must always be a responsible individual as well, because an overly determined search for such an individual may sometimes turn up no one else than some distant senior member of the institutional hierarchy with formal responsibility for the workings of the systems reporting to him in the institutional chain of command. This may be appropriate in the military, but it is not the rule as to civil liability in tort. Such a rule would, in effect, make individual supervisors personally responsible not as employers-- which they rarely are--but under a version of respondeat superior, which has regularly been rejected in the medical as well as other contexts. The question in these cases is whether the defendant owed a duty personally to the patient. The radiologist who reads an X-ray and reports his conclusion clearly does; the chief of medicine of a hospital, simply by virtue of his position, does not. The chief's duty is to his employer, not to patients who are not his patients but those of the treating physicians. See Doherty v. Hellman, 406 Mass. 330, 547 N.E.2d 931 (1989); Campbell v. Thornton, 368 Mass. 528, 333 N.E.2d 442 (1975).
II
With these considerations in view, we turn to the plaintiff's proffer of evidence to determine whether it was sufficient "to raise a legitimate question of liability appropriate for judicial inquiry." G.L. c. 231, § 60B. We have held that the standard under § 60B is similar to that on directed verdict, see St. Germain v. Pfeifer, 418 Mass. 511, 516, 637 N.E.2d 848 (1994), and it is on that standard that we review the plaintiff's claim. Once again, we recall that plaintiff must show that the defendant personally owed her a duty of care which he breached. His position as director of the laboratory will not of itself be sufficient to make out such a duty to the plaintiff, but neither does the fact that he personally did not treat her, perform the analysis of her blood, or undertake personally to report the results automatically absolve him of liability. It depends on the particular facts.
The plaintiff proffered the affidavits of two experts, whose qualifications for these purposes seem entirely adequate. They both agreed that the blood test results were of critical importance. One expert, Dr. Underkofler, a board certified obstetrician, stated that "[a]ny lab running serial Rh titers for an obstetrician should have in place procedural guidelines to insure that such information gets to the physician in an appropriate manner." He characterized a two-week delay as "indefensible." The other expert, Dr. Liebman, a board certified specialist in hematology and internal medicine and the medical director of a hemostasis laboratory, went further and stated that "the failure of the MetroWest blood bank and its director, Dr. Marvin Adner, to develop a proper protocol to immediately notify physicians of a significant change in anti-D titers failed to meet the proper standard of good laboratory practice placing [the plaintiff's] fetus at greater risk of death by hydrops fetalis." These affidavits certainly support the plaintiff's claim against MetroWest, but Dr. Liebman's statement that Dr. Adner was also personally responsible is a legal conclusion which the affidavits do not support.
The plaintiff's obstetrician reported that he "could not locate the paper report" of the plaintiff's blood test and that he "felt he should have had a phone call since this is a significant change." Although protocols for blood testing in cases like the plaintiff's were offered in evidence, they made no reference to the reporting of test results. Jeannine Bensette, a member of Dr. Adner's staff, testified that testing procedures and policies were developed in consultation with and approved by Dr. Adner. Although there was no formal protocol, it was the practice of the laboratory to transmit test results to the physicians in the MetroWest campus where the plaintiff's obstetrician worked by private courier, an independent contractor. She also testified that, after this incident, Dr. Adner instituted a policy requiring telephone notification of significant results in cases such as this one.
We conclude that these proffers are "sufficient to raise a legitimate question of liability appropriate for judicial inquiry." G.L. c. 231, § 60B. More specifically, there was sufficient evidence to suggest that Dr. Adner's involvement with the care and routines at the laboratory was sufficiently personal that the case may not as a matter of law be classed with cases such as Doherty, supra; Campbell, supra; or Lyon v. Morphew, 424 Mass. 828, 833, 678 N.E.2d 1306 (1997) ("general supervisory role with regard to the engineering department" not sufficient to make hospital's chief operating officer personally liable for accident when safety railing was improperly removed by engineering department). Counting for holding Dr. Adner personally responsible is the evidence that the personnel of the laboratory looked to him to set the details of the policies and procedures on just this matter that is the basis of the plaintiff's claim. [FN6] What would count against Dr. Adner's personal responsibility would be evidence that the organization was a large one and his responsibility for details such as this policy was only formal or hierarchical, or that others in the organization assumed a more direct relation to persons in the plaintiff's position. But no evidence of this sort is cited; we do not even know the size and organizational structure of the laboratory. In this state of the proof, the plaintiff should have been allowed to go to trial. Certainly the evidence raises a legitimate question that Dr. Adner's involvement with the care of patients receiving blood tests at the laboratory was at least as personal as that of the official of a college who "designed and supervised the installation of the security system ... [and] was responsible for the patrol pattern and the network of locks" which proved insufficient to prevent the rape of a student there. Mullins v. Pine Manor College, 389 Mass. 47, 56, 449 N.E.2d 331 (1983).
FN6. We do not intend to foreclose the possibility that in fact Dr. Adner had discharged his responsibilities appropriately and the fault was that of others.
We conclude only that there was sufficient evidence to preclude dismissal for failure to post the statutory bond required by § 60B. The judgment of the Superior Court is vacated and the case is remanded for further proceedings consistent with this opinion.
So ordered.
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