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Court of Appeal, First District, Division 4, California.

Ralph COBBS, Plaintiff and Respondent, v. Dudley F. P. GRANT, M.D., Defendant and Appellant.

Civ. 29073.

Decided: February 04, 1972

McNamara, Lewis & Craddick, Marrs A. Craddick, Walnut Creek, for appellant; Richard G. Logan, Oakland, of counsel. William Shannon Parrish, George W. Hauer, Oakland, for respondent.

Ralph Cobbs (hereinafter ‘plaintiff’) brought this malpractive action against Dudley P. Grant, M. D. (a surgeon), Laurel Grove Hospital and fictitious defendants. The action was consolidated for trial with another action, by plaintiff, against Samuel Merritt Hospital and others. Plaintiff subsequently dismissed the present action as to Laurel Grove Hospital and the fictitious defendants. In the consolidated trial which followed, the jury returned general verdicts (1) in favor of plaintiff, and against defendant Grant, in the amount of $23,800; and (2) in favor of plaintiff, and against Samuel Merritt Hospital, in the amount of $45,000. The ensuing judgment against Samuel Merritt Hospital, was satisfied. Defendant Grant appeals from the judgment against him in the present action.

Prior to August, 1964, plaintiff (who was then 31 years old) had no apparent difficulty with his stomach. On the evening of August 6, he developed lower abdominal pain and nausea and became dizzy. He saw his family physician, Dr. Jerome Sands (an internist), on August 8. From an examination of plaintiff and a history taken at the time, Dr. Sands concluded that plaintiff was suffering from a peptic duodenal ulcer. Dr. Sands prescribed an ulcer diet and medication. He advised plaintiff that, if plaintiff's condition did not improve, he (Dr. Sands) would order X-yays taken of plaintiff's upper gastrointestinal tract. When such X-rays were subsequently taken, the radiologist's report tended to confirm Dr. Sands' prior diagnosis of a duodenal ulcer.1 Plaintiff continued to have progressive symptoms of the ulcer disease, and his condition ultimately deteriorated to the point that Dr. Sands ordered him admitted to Laurel Grove Hospital on the morning of August 18, 1964.

In the hospital, plaintiff was given a series of tests to ascertain his precise condition, and medication to ease his pain and to relax him. His condition not having improved during the next serveral days, Dr. Sands concluded that surgery was required. He discussed the prospective surgery with plaintiff, and advised him of the possible hazards: the chances of ulcer recurrence, ‘dumping’ (distension of the intestinal tract which can cause diarrhea and vomiting), and the risk of general anesthesia.

Dr. Sands called in defendant, who is a surgeon practicing in the Hayward area. Defendant saw plaintiff on August 20; he had not seen the report from the earlier X-rays (see text at fn. 1, ante) but, after examining plaintiff and taking a history, he concluded that plainiff had an ‘intractable’ peptic duodenal ulcer and that a vagotomy and pyloroplasty2 were advisable. He explained the nature of the operation to plaintiff, but there was no discussion of any particular risks attending it.

Defendant performed the vagotomy and pyloroplasty on August 21, assisted by Dr. Sands. The operation commenced at 7:45 a.m. and ended at 9:50 a.m. Visualization of the abdominal area during surgery confirmed the presence of a duodenal ulcer which apparently had been present for some six months. As a result of the surgery, the ulcer ultimately disappeared; this was shown by later X-rays.

Plaintiff's recovery from surgery appeared to be uneventful and he was discharged from the hospital on August 29. However, he experienced severe pain the next day, and Dr. Sands ordered him returned to the hospital. Dr. Sands examined him shortly after his admission and found him to be sick but not in shock. His initial vital signs appeared to be stable, but he was in respiratory distress. However, approximately two hours after plaintiff entered the hospital, he went into shock and became very ill. It was determined that he was bleeding internally, and blood volume replacement was effected. Defendant then performed an exploratory abdominal operation to determine the cause of plaintiff's acute condition. Massive bleeding was observed, and a bleeding vessel was located at the hilum of the spleen. It was determined that the ‘treatment of choice’ was the removal of the spleen, and this was done. No other bleeding having been observed, the abdomen was closed after the spleen was removed. Plaintiff recovered satisfactorily from this operation, and was discharged on September 12.

Dr. Sands, as the regular attending physician, followed plaintiff's condition after his discharge from the hospital. He started plaintiff on a course of therapy, but plaintiff still complained of pain, which became progressively worse. As a result, plaintiff was again hospitalized by Dr. Sands on October 4 and remained in the hospital until October 10. X-rays of the gastrointestinal tract, taken soon after his readmission to the hospital, indicated that he had developed or was developing a gastric ulcer at another site, a normal side effect of ulcer surgery. During this period of hospitalization, Dr. Sands treated the patient with antacids and diet. Defendant was not consulted, and did not treat plaintiff, at any time during this hospitalization.

After being discharged on October 10, plaintiff was readmitted on October 11 because of extreme discomfort which was described by Dr. Sands in an entry in the hospital records as follows: ‘He remained at home and absolutely gorged himself with all the wrong foods, and subsequently developed upper midabdominal pain.’ While in the hospital on this occasion, plaintiff had difficulty adhering to the diet prescribed for him.

Plaintiff was next hospitalized on February 24, 1965, at which time Dr. Sands again called defendant for consultation. While plaintiff had been out of the hospital prior to this occasion, his condition had progressively worsened and had reached the point where he had vomited blood. After examining him, Dr. Sands concluded that a gastrectomy (with removal of 50 percent of the stomach) should be considered, as a means of further reducing the acid-producing capacity of the stomach so as to prevent ulcer recurrence. This was discussed with plaintiff, who agreed.

Defendant concurred in the advisability of a stomach resection, and performed one on March 1 with Dr. Sands again assisting. Plaintiff's post-operative recovery was uneventful and he was discharged from the hospital on March 9. He was readmitted on March 12 with gastrointestinal bleeding caused by the unpredictable, premature absorption of one or more surgical sutures. This problem cleared up, and plaintiff was discharged from the hospital on March 20. So long as he followed the prescribed diet thereafter, he had no further abdominal complaints prior to the trial.

Plaintiff examined defendant pursuant to Evidence Code section 776, but otherwise produced no medical witnesses on any issues pertinent to the present action. Defendant testified as follows: ‘. . . [A]s a general rule surgery is not necessary in acute ulcers unless there are complications. About 75 to 80 percent . . . don't require surgery. They will get by on medicine, medical therapy, unless they get complications. The other 20 or 25 percent either get complicated or become intractable, recurrent, and then subsequently require surgery.’ Defendant concluded that an operation was required in this case because of his clinical impression that plaintiff had ‘a penetrating peptic duodenal ulcer that could continue to penetrate.’ A ‘pentrating’ ulcer is ‘intractable’ because it is ‘putting a hole in . . . [the patient's] . . . stomach.’ The incidence of spleen injury ‘during or following a vagotomy’ is only one to five percent.

Defendant did not testify to accepted medical or surgical standards in the geographical area of his practice, but Dr. Yates, called by defendant as an expert witness, did. Dr. Yates gave this testimony: He was familiar with the ‘standards of practice’ followed by the medical profession, ‘in this community, the larger East Bay community,’ in the treatment, diagnosis and surgical treatment of ulcers and ulcer disease. He had reviewed the records of plaintiff's case. In the witness' opinion, plaintiff's first surgery was ‘indicated’ under the circumstances known to defendant when he recommended it. The operation was performed conventionally. Removal of the spleen was the proper ‘treatment of choice’ upon the occasion of the second operation. Dr. Yates did not directly testify that defendant's conduct in these respects conformed to the ‘standards of practice’ with which he was familiar but this was the unmistakable import of his overall testimony.

Dr. Yates further testified that spleen injury is a possible result of vagotomy, due to the pressure of retractors on the spleen during the operation. In this instance, he testified that it was not ‘standard practice in this community’ to discuss the possibility of spleen injury with a patient who was to undergo gastric surgery, because such injury infrequently occurs and because the spleen ‘is easily removed . . ., and causes no harm to the patient when it is removed.’

Dr. Sands agreed that plaintiff hasd an ‘intractable’ ulcer, and testified that a duodenal ulcer presents less urgency than a gastric ulcer. He also described plaintiff's operation in which he had been assistant surgeon, and the technique whereby the spleen is retracted during gastric surgery.

On his appeal, defendant contends (1) that the evidence is insufficient to support the judgment on the basis of his negligence, (2) that it is insufficient to support the judgment ‘on lack of informed consent,’ and (3) that the trial court committed prejudicial error in instructing the jury on ‘informed consent.’ Except in the respects hereinafter noted, we need not be detained by defendant's first point; we are required to reverse the judgment under the second and third.

The Evidence of Defendant's Negligence

Citing Meier v. Ross General Hospital (1968) 69 Cal.2d 420, 429, 71 Cal.Rptr. 903, 445 P.2d 519, plaintiff would have us find sufficient evidence of defendant's negligence upon the ground that the overall evidence showed that fact within the ‘common knowledge’ of the jury, and that he was accordingly not required to produce expert medical testimony to the effect that defendant had been negligent in his performance of the August 21 operation. We disagree. The Meier court stated that ‘[t]he requirement for expert testimony disappears if ‘during the performance of surgical or other skilled operations an ulterior act or omission occurs, the judgment of which does not require scientific opinion to throw light upon the subject’,' and the decisions quoted and cited for this statement3 clearly support it. This is not such a case: the action before us involves matters of professional judgment and technique which do require ‘scientific opinion’ and which are not matters of ‘common knowledge.’ Whether defendant's negligence in performing the first operation appears from his own testimony must be regarded as doubtful. Since a retrial is indicated for the reasons next expressed, however, we need not evaluate that question further.

The Evidence, And The Instruction, As To ‘Informed Consent’

On these points as raised by appellant, it is preliminarily desirable that we mention the essential defferances between a cause of action based upon lack of informed and one based upon negligence for the same reason. According to established tort principles, one who alleges a battery, for lack of informed consent, need show only a lack of consent to the allegedly offensive ‘contact.’ (Prosser on Torts (2d ed. 1955) § 9, p. 32.) However, when proving a lack-of-informed-consent cause of action in surgical negligence (which is not an intentional tort, but one based upon nonintentional conduct violating a standard of due care), the patient-plaintiff must show that his lack of ‘informed consent’ involved negligence, on the part of his surgeon, for failure to advise him of the collateral risks attendant upon the proposed surgery. (See Berkey v. Anderson (1969) 1 Cal.App.3d 790, 803–805, 82 Cal.Rptr. 67; Carmichael v. Reitz (1971) 17 Cal.App.3d 958, 976–977, 95 Cal.Rptr. 381; Plante, An Analysis of ‘Informed Consent’ (1968) 36 Ford.L.Rev. 639, 666–667. See, generally, Note (1967) 55 Cal.L.Rev. 1396.) It has also been held in other jurisdictions that a patient, suing his surgeon for malpractice on this basis, must show a ‘but-for’ fact: i. e., ‘that if he [the patient] had been fully advised as to the collateral risk he would not have submitted to the [surgical] procedure’ proposed. (Plante, op. cit. supra. See Shetter v. Rochelle (1965), 2 Ariz.App. 358, 409 P.2d 74, 78–82; Natanson v. Kline (1960), 187 Kan. 186, 354 P.2d 670, 673.)

Defendant's alleged failure to inform plaintiff of the risks involved in the August 21 operation ‘lack[s] the malicious or anti-social state of mind traditionally associated with battery actions.’ (Note, supra, 55 Cal.L.Rev. 1396, 1400 [fn. 18].) Plaintiff's complaint, moreover, repeatedly uses the words ‘negligent’ and ‘careless,’ as opposed to language consistent with the theory of battery. A California court has recently held that, in an action brought and tried upon such a complaint, the issue of ‘informed consent’ is to be treated as an aspect of negligence rather than of battery. (Carmichael v. Reitz, supra, 17 Cal.App.3d 958 at p. 977, 95 Cal.Rptr. 381.) For these reasons, we view plaintiff's case as one based upon the theory of defendant's negligence.

Plaintiff did not affirmatively testify that, had defendant informed him of the risk of spleen injury, he (plaintiff) would not have consented to performance of the August 21 operation. However, although he thus personally failed to establish a ‘but-for’ element, this may be discerned from the record in its entirety. (Natanson v. Kline, supra, 354 P.2d 670 at pp. 673–674.) Applying that rule here, we find, from all the circumstances shown (e. g., the intense pain which plaintiff experienced and the need for successive operations and hospitalizations), evidence to support the inference that he would not have agreed to the original operation if he had been fully informed of the attendant risks.

The remaining questions, however, involve the sufficiency of the evidence to show that defendant informed plaintiff of those risks to the point that the latter gave an ‘informed consent’ to the operation performed on August 21; specifically, whether there was substantial evidence that defendant was negligent in not informing plaintiff of the risk of spleen injury. Plaintiff produced no evidence that this lack of disclosure departed from the accepted ‘standards of practice’ and, as we have seen, Dr. Yates gave expert testimony that it was consistent with such standards. The trial court, however, instructed the jury in effect that expert testimony was not required to support a finding that defendant had been negligent for failure to make a full disclosure.4

The instruction was obviously based upon language in Berkey v. Anderson, supra, 1 Cal.App.3d 790, at page 805, 82 Cal.Rptr. 67, at page 78, in which the court stated: ‘We cannot agree that the matter of informed consent must be determined on the basis of medical testimony and more than that expert testimony of the standard practice is determinative in any other case involving a fiduciary relationship. . . . [A] physician's duty to disclose is not governed by the standard practice of the physicians' community, but is a duty imposed by law which governs his conduct in the same manner as others in a similar fiduciary relationship. To hold otherwise would permit the medical profession to determine its own responsibilities to the patients in a matter of considerable public interest.’

The Supreme Court denied a hearing in Berkey, but the statement just quoted was a dictum; as the Berkey court noted, there had been expert testimony in that case to the effect that the nondisclosure asserted therein (of the gravity of the procedure involved) had not conformed to ‘standard practice.’ (Berkey v. Anderson, supra, 1 Cal.App.3d 790 at pp. 805–806, 82 Cal.Rptr. 67.) Eighteen months later, the same court reached an opposite result, holding as follows: ‘Berkey is distinguishable on the facts and the law. The gravamen of a course of action based upon ‘informed consent’ in terms of negligence is that the physician's failure or inadequacy of disclosure breached his duty of due care. The existence and scope of this duty normally must be established by expert testimony. (Citations.)' (Carmichael v. Reitz, supra, 17 Cal.App.3d 958 at p. 977, 95 Cal.Rptr. 381 at p. 391.)

In assessing the sufficiency of the evidence on ‘informed consent’ in the present case, and the propriety of the instruction given on that subject (see fn. 4 and accompanying text, ante), we are thus put to a choice between Berkey and Carmichael. (Note, supra, 55 Cal.L.Rev. 1396.) Nevertheless, the Berkey statement was a dictum, and the authorities mentioned therein support the contrary conclusion. (Tangora v. Matanaky (1964) 231 Cal.App.2d 468, 474, 42 Cal.Rptr. 348; Dunlap v. Marine (1966) 242 Cal.App.2d 162, 177, 51 Cal.Rptr. 158. See also Note, supra, 55 Cal.L.Rev. at pp. 1400–1401.)

It thus appears that Carmichael expressed the law in this state. Unless and until that law is changed by the Supreme Court (and, possibly, in this case), we shall follow it. We therefore adopt the holding in Carmichael, which means (1) that the evidence in the present case is insufficient to show that defendant was negligent in not informing plaintiff that spleen injury was a collateral risk of the surgery performed on August 21; and (2) that the trial court erred in instructing the jury that expert testimony was not required in this regard.

The jury heard evidence, as to defendant's negligence, with respect to both his performance of the vagotomy-pyloroplasty and his failure to disclose to plaintiff all of the risks attendant thereto. If the jury found for plaintiff in the respect first mentioned, no prejudice would appear from the insufficiency of the evidence to suplport defendant's liability in the second one, nor in the instruction error. If the jurors found against plaintiff on the issue of surgical negligence, however, but in his favor as to informed consent, the instruction error was prejudicial to defendant because there is a reasonable probability that the verdict would have been in his favor if the jury had not been instructed that medical standards of disclosure in the community could be ignored as to ‘informed consent.’ As we are unable to ascertain the basis of the jury's verdict, reversal is required. (Stockstill v. South Laguna Disposal Co. (1969) 1 Cal.App.3d 1022, 1028, 82 Cal.Rptr. 268; Schaffer v. Claremont Country Club (1959) 168 Cal.App.2d 351, 358, 336 P.2d 254, 337 P.2d 139.)

The judgment is reversed.


1.  The report stated that ‘There is extreme irritability of the duodenal bulb within which on two films is a faint collection of barium consistent with a very tiny active duodenal ulcer.’

2.  Concerning the surgical nomenclature, the evidence showed as follows: A vagotomy is a cutting or transection of the vagus nerve, which nerve stimulates the secretion of acid and the movement of food out of the stomach. The purpose of this surgical procedure is to reduce the acidity of the stomach. A pyloroplasty is an operation by which a new drain is made at the pylorus for the purpose of improving the stomach drainage to counteract one of the vagotomy's effects in reducing the movement of food out of the stomach.

3.  ‘(Ales v. Ryan (1936) 8 Cal.2d 82, 98, 64 P.2d 409; see, e. g., Leonard v. Watsonville Community Hospital (1956) 47 Cal.2d 509, 305 P.2d 36, leaving a clamp in the incision following abdominal surgery; Davis v. Memorial Hospital (1962) 58 Cal.2d 815, 26 Cal.Rptr. 633, 376 P.2d 561, reetal abscess following routine pre-surgical enema; Friedman v. Dresel (1956) 139 Cal.App.2d 333, 293 P.2d 488, failure to examine or X-ray hip despite complaints of pain in that area.)’ (Meier v. Ross General Hospital, supra, at p. 429, 71 Cal.Rptr. at p. 910, 445 P.2d at p. 526 [parallel citations omitted].)

4.  The court instructed the jury as follows: ‘A physician's duty to disclose is not governed by the standard of practice in the community; rather, it is a duty imposed by law. A physician violates his duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment.’

RATTIGAN, Associate Justice.

DEVINE, P. J., concurs.