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DOW v. KAISER FOUNDATION

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Court of Appeal, Second District, Division 2, California.

Dorothy Dayton DOW, Plaintiff and Respondent, v. KAISER FOUNDATION, etc., et al., Defendants and Appellants.

Civ. 35748.

Decided: October 29, 1970

Thelen, Marrin, Johnson & Bridges, and James M. Radnich and Andrew J. Nocas, Los Angeles, for defendants-appellants. Cummins, White & Breidenbach and Francis Breidenbach, Los Angeles, for plaintiff-respondent.

Plaintiff Dorothy Dow sued defendants Dr. Paul Harmon, Permanente Medical Group, a partnership, Southern California Permanente Medical Group, a partnership, and Kaiser Foundation Hospital, a nonprofit corporation, seeking damages for injuries allegedly resulting from medical malpractice and the lake of an informed consent to lower back surgery performed by Dr. Harmon. The operation was performed on May 22, 1964. The complaint was filed on August 9, 1965.

In a bifurcated proceeding the issue of the statute of limitations was tried first. The jury rendered a verdict against defendants on that issue.

Following a trial on the substantive issues a verdict was rendered for plaintiff in the sum of $100,000. Defendants appeal.

For nearly 16 years prior to the operation in 1964, plaintiff was employed by the Los Angeles City School District. As a consequence of her employment plaintiff was eligible for and participated in the Kaiser Foundation Health Plan, Incorporated. This health insurance plan provides full soverage for practically all medical needs of its members.

In the late 1950's, plaintiff consulted Dr. Rene Cailliet (not joined as a defendant in this action) of the Southern California Permanente Medical Group concerning problems with her lower back. The Permanents Medical Group is a medical partnership which provides the Kaiser Health Plan members with the comprehensive Medical servicing and medical card guaranteed by the Kaiser Health Plan. Dr. Cailliet was the Chief of the Department of Physical Medicine and Rehabilitation with the Southern California Permanente Medical Group and as such served as plaintiff's consulting doctor from that time through the time of the May 1964 operation.

In January of 1958, plaintiff was admitted to the Kaiser Hospital for severe pain resulting from an acute lumbo sacral strain. Dr. Caillict recommended sonservative treatment.

Between 1958 and 1963, plaintiff suffered periodic episodes of increasingly severe pain in her lower back precipitated by movement in her spine. In late 1963, she was hospitalized 3 times for acute lumbo sacral strain and on each occasion received conservative treatment in the form of bed rest, traction and further physical therapy.

In early 1964, plaintiff suffered further continuous pain in her lower back which became particularly severe at night and after long periods of standing.

At this point Dr. Cailliet sdvised that further conservative treatment would no longer be productive. Plaintiff, on Dr. Cailliet's recommendation, consulted a Dr. Cozen, an orthopedic surgeon not associated with Kaiser or Permanente. Dr. Cozen recommended continuing with conservative treatment, i. e., exercises. He did not recommend surgery.

Later in January 1964, Dr. Cailliet referred plaintiff to Dr. Vinne H. Jeffress, an orthopedic surgeon, employed by Southern California Permanente Medical Group. Dr. Jeffress recommended a more strenuous physical exercise program and continued conservative treatment. Dr. Jeffress did not recommend surgery.

Plaintiff's condition still did not improve and she then consulted a Dr. Phillip B. Davis who was recommended to her by a friend. Dr. Davis was not associated with defendants and is not a party to this action.

On February 28, 1964, Dr. Davis recommended surgery to correct plaintiff's back condition. Specifically, Dr. Davis suggested that plaintiff's condition could be remedied by way of an interbody fusion. Plaintiff testified that this was the first time surgery of this nature had been recommended to her.

The interbody fusion is one of several surgical techniques available for correction of low back strain such as suffered by plaintiff.

Interbody fusions are performed either posteriorly (from the back) or anteriorly (from the front). The anterior interbody fusion requires an abdominal incision. Thereafter, the surgeon mobilizes or isolates major blood vessels and organs which would otherwise block a clear view of the operative site. The surgeon then drills out a portion of the disk which separates the critical vertebrae. The drilled-out area is packed with a bone graft taken from the iliac crest of the pelvis. This bone, if the operation is successful, constitutes the fusion or union between the two vertebrae. The anterior approach provides the surgeon with the distinct advantage of a better view of the operative area. It also promises a shorter recuperative period. The anterior interbedy fusion is, however, a relatively uncommon technique which in 1964 was performed by a relatively few orthopedic surgeons.

The posterior interbody fusion is roughly similar in that the fusion is predicated on this interbody drilling and prafting, however, the operative site is reached through an oblique angle from the back.

Dr. Davis' written recommendations were mailed to Dr. Cailliet. Dr. Cailliet, who was not a surgeon, again referred plaintiff to Dr. Jeffress to discuss the possibility of an interbody fusion. On April 8, 1964, Dr. Jeffress advised plaintiff that the success rate for any of the possible techiques was less than 100%. Dr. Jeffress further advised plaintiff that an interbody fusion would represent greater risk than a technique known as posterior fusion (to be distinguished from posterior interbody fusion). Plaintiff declined Dr. Jeffress' offer to do a posterior fusion and inquired as to who might perform an interbody fusion. She indicated a desire for as short a recuperative period as possible. Dr. Jeffress told plaintiff that he could not perform such an operation but advised her that Dr. Paul Harmon, an orthopedic surgeon and a member of the Permanente Group in San Francisco, had done such surgery in the past.

Subsequently, at plaintiff's behest, Dr. Cailliet called Dr. Harmon in San Francisco. This was on April 20, 1964. During this conversation Dr. Cailliet outlined plaintiff's medical history, discussed the above recommendations for surgery and inquired as to whether Dr. Harmon would be available to operate on plaintiff. Dr. Harmon agreed to perform an anterior interbody fusion in plaintiff on May 22, 1964.

Between the Cailliet-Harmon phone conversation on April 20, and the date of the operation, plaintiff spoke with both Dr. Cailliet and Dr. Harmon regarding the scope and some of the risks of the upcoming surgery. Plaintiff expressed some concern over the possibility of the operation ‘going through her intestines.’ After being reassured by Dr. Cailliet that the operation would not invole her intestines, plaintiff consented to the operation.

On May 19, 1964, plaintiff was admitted to Kaiser Hospital in preparation for the surgery to be performed three days later. On May 21, 1964, Dr. Nasarola Edalatpour, an employee of Southern California Permanente Medical Group, at Dr. Harmon's request, prepared a neurological consultation report on plaintiff plaintiff. Dr. Edalatpour's report expressed the opinion that at that time the risks involved in the surgery were too great and the conservative treatment should be pursued. This report was not furnished to Dr. Harmon because Dr. Caillit vetoed this recommendation on the basis of his long personal knowledge of plaintiff's medical history. The operation was performed as scheduled.

In the course of the operation, in order to visualize and approach the vertebral body and fusion site it was necessary to mobilize and move major blood vessels including the aorta. In so doing, Dr. Harmon unexpertedly encountered retroperitoneal fibrosis1 between the blood vessels and back body wall. This condition made the operation more difficult than usual as it necessitated the removal of the fibrosis or scarred tissue before the vertebrae could be reached and the ultimate fusion properly made.

Thus Dr. Harmon was forccd to mobilize the aorta and other major vessels. The retroperitoneal fibrosis was dissected and the aorta separated from surrounding tissue by the use of a peon clamps or forceps with a small piece of cotton, approximately four to five millimeters in diameter at the end. The peon clamp is a softnosed dull or blunt clamp about three to four millimeters wide at its tip. While ‘teasing’ or separating the retroperitoneal fibrosis and mobilizing the aorta with the peon clamp Dr. Harmon encountered unexpected bleeding from the branching of what Dr. Harmon descided as an ‘anomolous, degenerated aorta.’

Dr. Ferguson, a vascular surgeon, was immediately called into the operating room and the opining in the aorta was closed. Thereafter, Dr. Ferguson assisted Dr. Harmon in the operation. Subsequently, just prior to closing the main wound after the bone graft fusion, another opening occurred, this time in the left common iliac vein. This opening was similarly corrected and the operation was completed without further incident.

Plaintiff's post—operative condition was critical. Due to loss of blood as a result of the lacerations and surgery, she became anemic and required much replacement of blood. Consequently, she suffered an acute renal failure or kidney shutdown. Plaintiff further developed thrombosis of the left iliac artery and swelling in the left leg. The swelling persisted for many months, but ultimately abated. Plaintiff also suffered vascular complications from the left iliac artery which led to weakness through her right leg. Finally, there was testimony that the complications had caused aggravation of an existing heart condition.

On May 31, 1964, after a peritoneal dialysis was attempted without success, plaintiff was transferred to the UCLA Medical Center for use of the dialysis machine. On June 10, 1964, she had recovered sufficiently to be transferred back to the Kaiser Hospital. She stayed at Kaiser Hospital until her discharge on August 11, 1964.

Thereafter, plaintiff slowly regained her strength and in the Spring of 1966, she started doing regular weight lifting exercises at a gymnasium. An expert witness called by plaintiff testified that in his opinion, despite the above complications, plaintiff ‘had obtained an excellent anterior interbody fusion * * * which in turn has led to the elimination of the pain and complaints for which the patient entered the hospital and for which she had surgery.’

Plaintiff's claim for demages rested on two principal theories. First, plaintiff alleged that defendants failed to adequately inform her prior to surgery that one of the major risks in perfoming the anterior interbody fusion was injury to the major blood vessels and that as a consequence her consent to the operation was an ‘uninformed’ consent. Secondly, it was contended that the operation was performed on plaintiff in a negligent fashion. The jury's verdict did not specify on which of these theories the verdict was based.

On appeal defendants present several claims of error as follows: (1) that plaintiff's expert witness, Dr. Paul McMasters, was not qualified to testify that the complications experienced in the operation do not occur in the absence of negligence, and consequently there was insufficient evidence to warrant instructing the jury on res ipsa loquitur; (2) that there was insufficient evidence on which the jury could find a lack of informed consent; (3) that assuming plaintiff was not informed of certain risks plaintiff failed to prove that this lack of information proximately caused her injuries, or that she would not have consented had she been informed; (4) that the court erred by giving misleading instructions to the jury coucerning the standard of care by which defendants' actions were to be measured; (5) that the jury was erroneously instructed that they could disregard the opinions of expert witnesses. Finally, defendants claim error in several of the court's evidentiary rulings.

DR. McMASTERS' TESTIMONY AND THE APPLICATION OF RES IPSA LOQUITUR

As Dr. McMasters' testimony was virtually the only evidence produced by plaintiff on the issue of negligence on the operation, defendants' contention as to his qualifications is curcial to the question of the propriety of the court's instructions on res ipsa loquitur and negligence.

It is well established that negligence on the part of a surgeon will not be presumed. (Huffman v. Lindquist, 37 Cal.2d 465, 474, 234 P.2d 34; Simone v. Sabo, 37 Cal.2d 253, 257–258, 231 P.2d 19; Engelking v. Carlson, 13 Cal.2d 216, 221, 88 P.2d 695; Gin Non Louie v. Chinese Hospital Assn., 249 Cal.App.2d 774, 785, 57 Cal.Rptr. 906.)

The burden of proof in a malpractice action is no the plaintiff to affirmatively prove the surgeon's negligence and the causal nexus between the resultant injuries and that negligence.

In the instant action we are not faced with a factual matrix in which the alleged negligence on the part of the doctor can be inferred by resort to common knowledge. The surgical techniques employed throughout the operation were of a highly technical nature. The technical skill and experience necessary to perform an anterior interbody fusion are certainly matters uniquely within the grasp of medical experts.2 Expert testimony was essential for the determination of this crucial issue. (Lawless v. Calaway, 24 Cal.2d 81, 86, 147 P.2d 604.) As our Supreme Court said in Sinz v. Owens, 33 Cal.2d 749, 753, 205 P.2d 3, 5: ‘The standard of care against which the acts of a physician are to be measured is a matter peculiarly within the knowledge of experts; it presents the basis issue in a malpractice action and can only be proved by their testimony [citations], unless the conduct required by the particular circumstances is within the common knowledge of the layman.’

It is well eatablished that ‘[a] medical expert is not qualified as a witness unless it is shown that he is familiar with the standards required of physicians under similar circumstances. Sinz v. Owens, [supra]; Moore v. Belt, 34 Cal.2d 525, 532, 212 P.2d 509.’ Whether a witness qualifies as a competent medical expert is a discretionary determination which the trial court must make. The court's ruling ‘* * * will not be disturbed upon appeal unless a manifest abuse of that discretion is shown.’ (Huffman v. Lindquist, supra, 37 Cal.2d at 476, 234 P.2d at 42.) (2 Wigmore on Evidence [3d ed.], § 561, p. 641; Sinz v. Owens, supra, 33 Cal.2d at 755–756, 205 P.2d 3.)

Our Supreme Court set out the test for the exercise of that discretion in Huffman v. Lindquist, supra, 37 Cal.2d at 478, 234 P.2d at 42. The court said: ‘The definitive criteria in guidance of the trial court's determination of the qualifications of an expert witness are recognized in Sinz v. Owens, supra, 33 Cal.2d 749, to rest primarily on ‘occupational experience,’ as stated at page 753: ‘The proof of that standard (the reasonable degree of skill, knowledge, and care ordinarily possessed and exercised by members of the medical profession under similar circumstances) is made by the testimony of a physician qualified to speak as an expert and having in addition, what Wigmore has classified as ‘occupational experience—the kind which is obtained casually and incidentally, yet steadily and adequately, in the course of some occupation or livelihood.’ [Citation.] He must have had basic educational and professional training as a general foundation for his restimony, but it is a practical knowledge of what is usually and customarily done by physicians under circumstances similar to those which confronted that is of controlling importance in determining competency of the expert to testify to the degree of care against which the treatment givan is to be measured.'' (Emphasis added.)

In the instant action we are not faced with a question of competency of a doctor in one dommunity to testify as to the standard of care at another locality or placc as in Sinz v. Owens, supra, at 749, 205 P.2d 3. Nor do we consider herein the question of the qualifications of a physician whose practice in California had been inactive for 25 years as in Huffman v. Lindquist, supra, 37 Cal.2d at 465, 234 P.2d 34. However, it is our opinion that the definitive criteria outlined by our Supreme Court above are squarely applicable to this case.

Dr. McMasters is, to be sure, an established orthopedic surgeon of exceptional standing in the medical community. His technical background and experience certainly qualify him as an expert in several fields. However, the surgical techniques employed by Dr. Harmon in the operation performed on plaintiff required ‘occupational experience’ which Dr. McMasters simply did not possess, to wit, extensive practical knowledge of the techniques used in performing an anterior interbody fusion and personal experience with the uncommon circumstances encountered solely in anterior interbody fusions of the lower back.

The record is replete with examples of Dr. McMasters' own anknowledgment of his lack of ‘occupational experience.’

‘Q. Are you acquainted with the operative technique known as the anterior inter-body fusion? A. Well, I am acquainted with it from reading; I have not done one * * * Q. Doctor, do you have an opinion, based upon reasonable medical certainty, whether the injuries which you have descrilbed and attributed to the surgery are the type which ordinarily occur following an anterior interbody fusion in the absence of negligence? A. Well, I will answer that first by saying, number one, I do not do spinal fusion anterior in the lumbar region, so I am not too familiar with that angle at aspect. I know that a good number of them are done and I don's believe that these complications are, shall we say, routine. * * * Q. [From the Court.] Doctor, the question in essence, apart from the partial answer which I believe you given, includes whether or not these injurise ane the type in this type of operation which would normally occur in the absence of negligence. And we will ask you if you are able to address yourself to your opinion in that subject matter, and if you need an explanation of the question if you will ask for it Counsel will be able to amplify it further. A. Well, I think perhaps it might be better of I not give a positive specific answer in as far as I am personally—I do not do this type of surgery.’

Having never performed an anterior interbody fusion in the lumbar region it is clear that Dr. McMasters lacked the ‘practial knowledge of what is usually and customarily done by physicians under circumstances similar to those which confronted [appellants].’ (Emphasis added.) (Sinz v. Owens, supra, 33 Cal.2d at 753, 295 P.2d at 5, as quoted in Huffman v. Lindquist, supra, 37 Cal.2d at 478, 234 P.2d 34.) To be sure, the operation which confronted defendants on May 22, 1964, was performed under circumstances which even Dr. Harmon, who had performed hundreds of such operations, considered higly uncommon. First, Dr. Harmon's team unexpectedly encountered retroperitoneal fibrosis within direct proximity of the operative site and plaintiff's ‘degenerated aorta.’ Plainiff's veins were in a very friable or brittle condition. These unique circumstances which confronted Dr. Harmon on May 22, 1964 were admittedly not a part of Dr. McMasters' ‘occupational experience.’ In fact, Dr. McMasters testified that he had never in his experience even observed, must less sonfronted such circumstances in actual surgery.

The application to the instant case of the criteria set out in Huffman, supra, compels our holding that whenever the surgical circumstances which confronted the defendants in a malpractice case are beyond the ‘practical knowledge’ and ‘occupational experience’ of the testifying ‘expert,’ that witnesses' qualifications are inadequate to allow him to opine hypothetically that the complications encountered do not occur without negligence.

This does not preclude the trial court from exercising its discretion in cases where the surgical technique is truely unique, e. g., experimental techniques performed by only one or two men, or where the expert is testifying concerning specific acts or omissions by the doctor.

In the sase at bar we are dealing with a surgical technique which while relatively unusual is not considered so unique as to preclude testimony by experts whose occupational experience includes the personal conforntation of circumstances similar to those which confronted the defendants.

Admittedly, the line drawn herein may in certain situations be thin. We feel it necessary, however, to make this distinction. To hold otherwise would be to unnecessarily hamper medical progress. In an age already made singular in history by heart transplants, artificial organs and countless other medical innovations, the modern surgeon must not be precluded from developing new and unusual surgical techniques by the fear of legal liability.

We are mindful that medical progress can never excuse negligence or malpractice, however, we feel that under the authority of Huffman we have struck a proper, however delicate, balance between protection of the patieut and protection of the patient's surgeon.

Plaintiff relies heavily on Valdez v. Percy, 35 Cal.App.2d 485, 96 P.2d 142, but that case is distinguishable factually from the instant case. In Valdez, the defendant was at that time the sole practitioner of what was known as the ‘Percy cautery’ method. Under the argument advanced by the defendant in that case he would have been the only qualified expert. As noted above we have not embraced such a holding. in fact, it is in such a situation as existed in Valdez that the trial court must exercise its discretion and allow otherwise qualified witnesses to testify. The instant case differs from Valdez in that here experts with ‘occupational experience’ were available.

Furthermore, we note a significant distinction between the expert's testimony in Valdez and McMasters' testimony here. The expert in Valdez disclaimed having ever experienced a case where there were two conflicting laboratory reports. That is certainly not a significant lack of ‘occupational experience’ which cannot be overcome by reference to equivalent training in a similar area. Dr. McMasters, however, disclaimed any experience with the actual surgical techniques employed and the complications encountered herein.

The key to plaintiff's cause of action in negligence in the performance of the operation was the testimony of Dr. McMasters. It was his recitation of the ‘magic’ words that triggered the operation of the doctrine of res ipsa loquitur, permitting the jury to infer negligence from the happening itself. Thus, subsequent to the dialogue set out above and following a short recess, the following testimony was elicited from Dr. McMasters: ‘Q Doctor, a questuon I asked earlier, in talking with you during the break, I think you misunderstood, and so I would like to restate that question. Do you have an opinion, based upon reasonable medical certainty, whether the injuries which you have described are the type which ordinarily occur in and following anterior fusions in the absence of negligence? A No, they do not.’ When asked to repeat his answer, Dr. McMasters replied: ‘Well, these complications as a general rule are not expected, certainly, in the absence of negligence.’ After examination of the entire record we can find no other expert or lay restimony conerning purported negligence in the performance of the operation. In contrast there is considerable testimony that the openings in plaintiff's aorta and iliac vein are considered high risks of such an operation and that such openings could readily occur in the absence of negligence.

A careful analysis of the evolution and development of the doctrine of res ipsa loquitur discloses a fairly introduction into the malpractice field and suggests that its application to a given case must be carefully scrutinized.

In Ybarra v. Spangard, 25 Cal.2d 486, 154 P.2d 687, the doctrine was used to permit an anesthetized patient to identify the person responsible for obvious negligence.

Application of the doctrine has proceeded from that base through a number of cases there as a matter of common knowledge by laymen, negligence could be inferred. (See Tomei v. Henning, 67 Cal.2d 319, 62 Cal.Rptr. 9, 431 P.2d 633; Clark v. Gibbons, 66 Cal.2d 399, 58 Cal.Rptr. 125, 426 P.2d 525; Davis v. Memorial Hospital, 58 Cal.2d 815, 26 Cal.Rptr. 633, 376 P.2d 561; Siverson v. Weber, 57 Cal.2d 834, 22 Cal.Rptr. 337, 372 P.2d 97.) Its use has been approved where the medical procedure involved had become so commonplace that a layman could infer that complications did not result in the absence of negligence. Similarly, the doctrine found acceptance in cases where the injury was to a totally different part of the body than that being treated, and in cases where a foreigh object was left in the body. (See Ales v. Ryan, 8 Cal.2d 82, 64 P.2d 409; Bowers v. Olch, 120 Cal.App.2d 108, 260 P.2d 997; Ybarra v. Spangard, supra.)

Upon leaving the area of layman knowledge the doctrine progressed to where experts could testify that in the light of experience and common knowledge in the medical community, negligence could be inferred from the occurrence. (Tomei v. Henning, supra; Davis v. Memorial Hospital, supra; Cavero v. Franklin, etc., Benevolent Soc., 36 Cal.2d 301, 223 P.2d 471.)

In moving beyond this point, judges must be scrupulously careful to see that before a lay jury is permitted to pronounce judgment on a doctor for complications occurring in connection with highly technical medical procedures, that the evidence is substantial enough to outweigh the oppressive effect that an unwarranted verdict can have on progressive medical science.

It is of interest to note here that Dr. McMasters testified that the injuries to the major blood vessels would not, in his opinion, have occurred in the absence of negligence. Yet as we shall see below plaintiff's theory of liability based on uninformed consent rested primarily on her contention that injury to the major blood vessels was a known risk about which she should have been informed.

The basic rule is stated in Siverson v. Weber, supra, 57 Cal.2d at p. 836, 22 Cal.Rptr. at p. 337, 372 P.2d at p. 97: ‘* * * res ipsa loquitur applies where the accident is of such a nature that it can be said, in the light of past cxperience, that it probably was the result of negligence by someone and that the defendant is probably the person who is responsible.’ (Emphasis added.) (See Tomei v. Henning, 67 Cal.2d 319, 322, 62 Cal.Rptr. 9, 431 P.2d 633; Clark v. Gibbons, 66 Cal.2d 399, 408, 58 Cal.Rptr. 125, 426 P.2d 525; Davis v. Memorial Hospital, 58 Cal.2d 815, 187, 26 Cal.Rptr. 633, 376 P.2d 561.)

We feel that language in Siverson v. Weber, supra, 57 Cal.2d at 839, 22 Cal.Rptr. at 339–340, 372 P.2d at 99–100, is applicable to this case. (In that case, as here, there was no other evidence of negligence in the operation besides the testimony of one expert; and none of the witnesses besides the one expert testified that anything was done during the operation which was contrary to good medical practice.) The court said there: ‘To permit an inference of negligence under the doctrine of res ipsa loquitur solely because an uncommon complication develops would place too great a burden upon the medical profession amd might result in an undesirable limitation on the use of operations or new procedures involving an inherent risk of injury even when due care is used. Where risks are inherent in an operation and an injury of a type which is rare does occur, the doctrine should not be applicable unless it can be said that, in the light of past experience, such an occurrence is more likely the result of negligence than some cause for which the defendant is not responsible.’ (Emphasis added.)

In the instant case Dr. McMasters' testimony lacked the ‘light of past experienc’ necessary to properly raise the inference afforded the plaintiff by the application of res ipsa loquitur.

There was simply insufficient evidence to invoke the doctrine of res ipsa loquitur and without it there was insufficient evidence upon which the jury could have found that defendants were negligent in the performance of the operation.

Defendants'$ counsel did not persist to the extent that he should have in objecting to the testimony of Dr. McMasters. Some answers were given without objection.

However, since as a matter of law, Dr. McMasters' qualifications and the testimony he gave were inadequate to invoke res ipsa loquitur, defendants' failure to object to some answers was not fatal.

The record further discloses that both parties at the close of the case submitted instructions on res ipsa loquitur. At that point in the trial it was apparent that the court was disposed to give to plaintiff the benefit of the doctrine, so we cannot conclude that defendant, by submitting instructions on the issue, invited the error.

THE ISSUE OF INFORMED CONSENT

Plaintiff presented to the jury through her pleadings and evidence an alternative theory of liability designed to demonstrate that the operation was performed without her ‘informed’ consent and that therefore she should recover for her injuries.

The testimony is in conflict as to whether plaintiff had been adequately informed as to the risks.

Defendants, as part of their contention that the evidence does not support the verdict, point out that plaintiff never testified that she would not have consented to the operation had she known of the risks of which she claimed she was not informed.

It is clear from the points raised on appeal by both parties and by the instructions given to the jury as to the issue of informed consent3 that the principals in the instant case labored under a misconception of the law of California on the question of ‘uninformed’ consent.

This is readily understandable. The authorities are limited and those cases which have discussed the subject have failed to come to grips with the nature and requirements of the cause of action based upon the lack of an informed consent to medical treatment.

In analyzing this area of the law it is important to first distinguish between several possible causes of action.

It is clear that surgery performed without consent constitutes a battery. (Hundley v. St. Francis Hospital, 161 Cal.App.2d 800, 802, 327 P.2d 131; Valdez v. Percy, supra, 35 Cal.App.2d at 491, 96 P.2d 142.)

On the other hand, if consent is given as the result of reliance on a negligently rendered recommendation and diagnosis, the cause of action is based on negligence.

Where a patient consents to an operation of one type and another is performed or where the consent is exceeded, the cause of action is for battery, for the reason that there is no consent to the other or additional operation. (Pedesky v. Bleiberg, 251 Cal.App.2d 119, 59 Cal.Rptr. 294.)

This of course does not involve the emergency situation in which consent is presumed. (Pedesky v. Bleiberg, 251 Cal.App.2d 119, 59 Cal.Rptr. 294; Preston v. Hubbell, 87 Cal.App.2d 53, 196 P.2d 113; Wheeler v. Barker, 92 Cal.App.2d 776, 208 P.2d 68.)

The situation in this case presents the fourth and most troublesome possibility—the failure of a doctor to provide his patient with sufficient information upon which an ‘informed’ consent to proposed treatment can be made.

Plaintiff here undeniably consented to the performance of an anterior interbody fusion. She contended, however, that this consent was vitiated by defendants' failure to inform her of the risks to her major blood vessels of Dr. Edalatpour's presurgery consultation report.

It is well established that a doctor has a duty to inform his patient concerning contemplated medical procedure and the inherent risks therein. (Berkey v. Anderson, 1 Cal.App.3d 790, 805, 82 Cal.Rptr. 67; Salgo v. Leland Stanford, ect., Bd. Trustees, 154 Cal.App.2d 560, 578, 317 P.2d 170.) A breach of this duty prevents the patient from rendering an ‘informed’ consent the operation. Accordingly, the giving of an ‘uninformed’ consent is equivalent to giving no consent at all. Thus, the performance of an operation pursuant to an uninformed consent is a battery. (See Berkey v. Anderson, supra, 1 Cal.App.3d at 803, 82 Cal.Rptr. 67; Pedesky v. Bleiberg, 251 Cal.App.2d 119, 59 Cal.Rptr. 294.)

Despite the fact that this issue is seemingly settled, the cases are unclear as to the nature and scope of the instructions which should be given to the jury. We have not found any cases which deal directly with this problem. Pedesky v. Bleiberg, supra, only obliquely consider the application of a battery theory to the court's instructions on ‘uninformed consent.’

The BAJI instructions, given by the court herein, make reference in the official note to language in Salgo v. Leland Stanford, etc., Bd. Trustees, supra, and to Natanson v. Kline, 186 Kan. 393, 353 P.2d 1093. The court in Salgo considered the nature of the dilemma which faces a doctor who would inform his patient of the possible dangers of a particular procedure. The court there, however, centered its discussion on the nature of the duty owed by a doctor and analyzed neither the nature of the action which results from a breach of the duty nor the way in which this cause of action should be articulated to a jury.

Natanson v. Kline, supra, is a landmark decision in Kansas. In that case the court, faced with an uninformed consent and subsequent injuries as a result of the treatment performed, decided, on the basis of Salgo, that the cause of action for operating pursuant to an uninformed consent sounded in negligence.

In California, contrary to the conclusion reached in Kline, the cause of action which arises from medical treatment based on an uninformed consent sounds in battery and not negligence.

The jury here was instructed that ‘Failure to obtain consent when and as required renders the physician and surgeon liable in damages for any injury proximately resulting from the operation or treatment. * * * The failure to disclose in all instances does not necessarily suggest a neglect duty.’ (Emphasis added.)

Furthermore, the court instructed the jury that the doctor's duty was to make those ‘Disclosures which a competent medical practitioner would make under the same or similar circumstances * * *’ (Emphasis added.)

This language clearly sounds more in negligence than battery, and does not comport with language in Berkey, supra, where the court said, ‘We cannot agree that the matter of informed consent must be determined on the basis of medical testimony any more than that expert testimony of the standard practice is determinative in any other case involving a fiduciary relationship.’ (Page 805, of 1 Cal.App.2d, page 78 of 82 Cal.Rptr.)

Thus, the court's instructions misled the jury as to the standards by which defendants' actions should have been measured.

More important, however, is the fact that the court's instructions on the subject of the causal connection between a breach of the duty to inform and the damages which result from a subsequent operation, were misleading and incomplete.

A surgeon's negligence in performing an operation may be the cause of the resultant injuries but it does violence to logic, however, to say that the failure to inform a patient about certain risks is the proximate cause of those subsequent injuries. If the lack of sufficient information vitiates a consent the cause of action is the same as if no consent had ever been given. Thus, a doctor who breaches his duty to inform, as we shall define it below, is liable for all injuries sustained by the patient whether the result of negligence in the performance of the operation or not.

In other words, this cause of action arises even in the most skillfully performed, successful operations where the ‘injury’ is nothing more than the performance of the operation itself. The jury should have been so advised.

In this context, however, it is apparent that litigation will generally ensue only where the surgery is unsatisfactory or some untoward result has occurred.

Thus, even though has not been negligent in the performance of the operation itself, the practical result of the doctrine of informed consent is to involve the doctor in a contest of credibility and memory concerning what the patient was told.

‘[N]othing short of a written parade of horribles will suffice as proof that the risks were adequately explained. A patient might forget what was explained to him. Without witten proof of the explanation, the court is more apt to believe the patient who sees one doctor than the doctor who sees many patients.’ (34 So.Cal.L.Rev. 217, 224.)

With these considerations in mind we here attempt to construct a rule which will reasonably protect both doctor and patient.

Inasmuch as the patient is already well protected where the treatment itself is negligently performed and recovery on the basis of uninformed consent will generally occur where such negligence cannot be proved; we hold that in order for a patient to vitiate his voluntary consent to treatment on the basis that the doctor breached his duty of disclosure, it must be proved that the doctor wilfully, and without good medical reason, withheld material information.

Battery being an intentional tort requires in this situation, proof of a higher degree of culpability than ordinary negligence in failing to inform a patient of some aspect of proposed medical treatment.

Further, the plaintiff must establish as part of his burden of proof that the information which was withheld was of such significance that had it been disclosed, consent would not have been given.

It is our opinion that these standards comport squarely with the fiduciary nature of the doctor-patient relationship. (See Berkey, supra, at 804, 82 Cal.Rptr. 67; Bowman v. McPheeters, 77 Cal.App.2d 795, 800, 176 P.2d 745.)

As our Supreme Court has said ‘* * * confidence growing out of the relationship of doctor and patient imposed upon the physician the duty of refraining from fraudulent concealment, that is, the duty of disclosure when he had knowledge of the facts. * * * Where there is a duty to disclose, the disclosure must be full and complete, and any material concealment or misrepresention will amount to fraud sufficient to entitle the party injured thereby to an action.’ (Pashley v. Pacific Elec. Ry. Co., 25 Cal.2d 226, 235, 153 P.2d 325, 330.) (Emphasis added.)

It follows that for a concealment or misrepresentation of possible risks in proposed surgery to be sufficient to provide the injured party with a cause of action, the concealment must be intentional and willful.

In the final analysis the court's instructions did not accurately inform the jury on the law of uninformed consent. This error was prejudicial. Moreover, the evidence was insufficient to support the verdict in light of the requirements enunciated above.

Defendants additionally contend that it was error for the court to instruct the jury in the language of BAJI 101 (Revised) and 101 (4th ed.) (ordinary negligence) and BAJI 33 (1967 Revision) (expert witnesses).

These instructions are not applicable to a malpractice action, (Tangora v. Matanky, 231 Cal.App.2d 468, 42 Cal.Rptr. 348; Downs v. American Employers Insurance Company, 5 Cir., 423 F.2d 1160) and it was error to give them.

Defendants' additional assignments of error did not play a major part in the case and we find that they are without merit.

Plaintiff suggests that Dr. Harmon in failing to perform an adequate personal examination of the patient before surgery and in not familiarizing himself with Dr. Edalatpour's consultation report, coupled with plaintiff's physical condition, was negligent in undertaking the operation at all. On this basis, plaintiff contends the verdict should be upheld.

We are mindful of the duty to uphold a judgment when there is substantial evidence in the record supporting it.

However, where the evidence and instructions are fatally deficient as to two major theories of liability and we are unable to say that the jury's verdict was not a result of those errors, we must reverse. (See Greenbelt Co-op. Pub. Ass'n v. Bresler, 398 U.S. 6, 11, 90 S.Ct. 1537, 26 L.Ed.2d 6, and cases cited; Stromberg v. California, 283 U.S. 359 367–368, 51 S.Ct. 532, 76 L.Ed. 1117; Salgo v. Leland Stanford, etc., Bd. Trustees, supra, 154 Cal.App.2d 560, 572–573, 317 P.2d 170.)

The judgment is reversed.

ORDER DENYING PETITION FOR REHEARING

As pointed out in our opinion filed October 29, 1970, the trial was bifurcated and the issue of the statute of limitations was tried separately.

Inasmuch as none of the errors which require the reversal of the judgment in this case affected that part of the trial which dealt with the statute of limitations, we do not disturb that recital in the judgment of a finding in favor of the plaintiff on that issue. Petition for rehearing denied.

Respondent to bear the costs on appeal.

FOOTNOTES

1.  Retroperitoneal fibrosis is a condition of unknown causation in which the structures between the peritoneum and the vertebral bodies in the back of the body wall are attached by scar tissue.

2.  Several doctors at the trial testified that an anterior interbody fusion calls for such a high degree of skill and experience that only a handful of surgeons in all of California perform it.

3.  The trial court first read the jury California Jury Instructions, BAJI 214–P (Rev.) as modified. With those modifications the instructions read: ‘Ordinarily a physician and surgeon must obtain the consent of a patient before operating on or treating him. Such consent need not be in writing or by express words or in any particular form. Failure to obtain consent when and as required renders the physician and surgeon liable damages for any injury proximately resulting from the operation or treatment.’ Secondly, the court read the jury BAJI 214–Q (New) which reads as given: ‘In determining whether the plaintiff consented to the operation here involved, you should have in mind and apply the following rule of law. A physician and surgeon has a duty to make reasonable disclosure to his patient of all significant facts under the circumstances of the situation which are necessary to form the basis of an intelligent and informed consent by the patient to the proposed operation. This duty, however, is limited to those disclosures which a competent medical practitioner would make under the same or similar circumstances, having due regard to the patient's physical mental and emotional condition. The failure to disclose in all instances does not necessarily suggest a neglect of duty.’

COMPTON, Associate Justice.

HERNDON, Acting P.J., and FLEMING, J., concur.

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