TRUMAN v. THOMAS (1979)

This is an appeal from the judgment after a defense jury verdict in a medical malpractice action of two minor children for the wrongful death of Rena Truman, their mother.

Rena died in July 1970 of cervical cancer at the age of 30. Defendant Claude R. Thomas was her family physician. She first consulted him on April 23, 1963 in connection with obstetrical care he thereafter rendered for her second pregnancy. At the first visit she gave a history of having had a “pap smear” within the past year, administered by her former physician. After delivery, defendant continued to see her periodically. There was expert testimony that if a pap smear test had been done at any time between 1964 and 1969, it would probably have revealed the cancer's presence; and that if detected early, cervical cancer is almost always curable.

No pap smear was done during this time. Defendant testified that he advised Rena on many occasions to have one done, but she persistently either declined or procrastinated. Defendant testified: “As I said many times with Rena, when we were doing pelvics, I would say, ‘Rena, you should have a pap smear now,’ and for various reasons she put it off. . . . (W)e already had the equipment there and ready to do it and we always tried to tell girls to have one every year.”

Records of the Gridley Medical Clinic indicate that during the time in question defendant was doing 10 to 20 pap smears per month for his patients. Defendant's nurse, Lillian Vierra, testified that it was his normal custom and practice persistently to urge young child bearing women to submit annually to a pap smear; on one occasion when Rena was in the office for an upper respiratory infection, Vierra heard defendant suggest a pap smear, which Rena refused, saying she did not feel like it.

Defendant testified that in March of 1966, Rena telephoned him to request birth control pills. He replied: “ ‘No, Rena, you can't have birth control pills without a pelvic and a pap smear,’ and she told me again that she just couldn't afford it and I said, ‘We just bought a boat from your husband,’ who had a local boat selling business, and service station in Gridley and I said, ‘Surely you can come in and have a complete examination and have a pelvic and a pap smear and then we'll give you the birth control pills and everything,’ and she said she just couldn't afford it, could she come in for the pelvic and get the birth control pills and come back later for the pap smear, the complete examination. Defendant agreed to this, but despite Rena's promise to come in for a complete examination ”. . . she didn't seem to get around to it.“ The charge for a pap smear test at that time was $6.

On February 15, 1967, defendant authorized a prescription refill of Rena's birth control pills, but told the pharmacist to advise her that “. . . we weren't going to be able to renew them any longer; that she had just stalled too long and just had to have an examination before any more birth control pills could be given.” The record indicates no more birth control pill prescriptions for Rena by defendant. Defendant testified that he was concerned not only with the pap smear, but also with a complete physical examination for Rena, including a blood test and a breast examination.

Defendant saw Rena in November 1967 and in March 1968 for upper respiratory infections. He could not recall specifically whether a pap smear was discussed at those times, but testified: “It's not at all uncommon for us to do so. When we thumb through the chart, we can see if a patient should have another blood sugar, a pap smear, a complete checkup and this is just part of our routine to go through the chart and to look these things over. . . .”

In January 1969, defendant saw Rena for a urinary tract infection. He prescribed medication and told her to return for a complete examination. Defendant testified that she returned in March 1969, with some of the same symptoms, “. . . but at that time, she was having her menstrual period and was unable to allow us to proceed with the pelvic exam or a complete exam and again asked to return.”

Instead of returning to defendant, Rena went to a Urologist, Dr. Arnold Casey, on April 9, 1969. Upon examination, Casey found the cervix extremely rough and a very heavy vaginal discharge. On May 8, 1969, Casey explained to Rena the seriousness of her symptoms and suggested that she see a gynecologist, but she wanted to wait. Casey saw her again in June and July, and she continued to defer a visit to a gynecologist. He next saw her in August, and finally on October 20, 1969; Casey himself finally made an appointment for her with Dr. Dale W. Ritter, a gynecologist. Ritter saw her on October 27, 1969, and diagnosed the cervical cancer. She died on July 30, 1970.

The jury rendered a special verdict finding no negligence on the part of defendant which was the proximate cause of Rena's death.

Plaintiffs make three contentions on appeal:

1. The trial court erroneously refused to permit defendant's impeachment by a prior criminal conviction and by evidence of prior willful falsehood.

2. The trial court should have instructed on the doctrine of Helling v. Carey (1974) 83 Wash.2d 514 (519 P.2d 981).

3. The trial court erroneously refused to instruct on the doctrine of informed consent.¹

I

Defendant was convicted in Utah on June 3, 1976 of intentionally falsifying a prescription in order to procure a narcotic-type drug for self-administration, a felony under Utah law. (Rammell v. Smith (Utah 1977) 560 P.2d 1108.) Plaintiffs argue that the trial court erred in refusing to permit them to impeach defendant's testimony with this evidence.

The contention lacks merit. After defendant's conviction, the time for pronouncement of judgment was continued for two years, during which time he was placed on probation. The Utah Code (s 76-3-402 U.C.A.) provides in part that: “Whenever a conviction is for a felony, the conviction shall be deemed to be a misdemeanor if: . . . The imposition of the sentence is stayed and the defendant is placed on probation, . . . and (he is) thereafter discharged without violating his probation.”

On August 12, 1977, prior to trial of this case, defendant appeared in the appropriate Utah court for formal review of his probation. The court ordered probation terminated. The effect of this was to reduce the felony conviction to a misdemeanor. Under Evidence Code section 788, subdivision (d), the conviction became unavailable for impeachment purposes.

Even if it had been admissible, the trial court exercised its discretion to exclude the conviction under Evidence Code section 352, on the ground that its probative value was outweighed by the risk of undue prejudice. (People v. Beagle (1972) 6 Cal.3d 441, 453-454, 99 Cal.Rptr. 313, 492 P.2d 1.) No abuse of such discretion is demonstrated.

Along similar lines, plaintiffs also object to the trial court's refusal to permit them to show that although defendant was still licensed to practice medicine in California, a five-year suspended revocation had been imposed upon him as a result of the Utah conviction. Assuming that the fact of such revocation could be shown without evidence of the underlying conviction (which as above explained was properly excluded), the court did not abuse its discretion in disallowing such evidence under Evidence Code section 352. The revocation occurred almost eight years after defendant last saw Rena and was unrelated to her case or to any other similar case. Thus it was not directly relevant to the issue of professional negligence.

II

Plaintiffs' second argument, based upon the Washington Supreme Court's opinion in Helling v. Carey, supra, is that the trial court erred in refusing to instruct the jury that “. . . as a matter of law . . . a physician Who fails to perform a Pap smear test on a female patient over the age of 23 and to whom the patient has entrusted her general physical care is liable for injury or death proximately caused by the failure to perform the test.” (Emphasis added.) Essentially plaintiffs thereby sought and now seek a rule of absolute liability, the end result of the Helling holding (see concurring opinion in Helling v. Carey, supra), for failure to take the necessary pap smear sample Over the patients' objection.

As the trial judge noted in rejecting this proposed instruction, Requiring a physician to perform a pap smear test (rather than simply holding him liable for failure to Recommend it) “does not take into consideration aspects of battery and . . . a woman's perfect right to refuse to submit to a pap smear; . . .” Plaintiffs proposed totalitarian approach to the physician-patient relationship and to the practice of medicine was properly rejected. The record fully describes the precise and detailed activity involved in taking a pap smear sample; traditional legal (and moral) precepts emphatically dictate that it may not be taken nonconsensually.

The Helling case, strict though it was, did not reach this extreme. Rather, Helling is noteworthy simply for its explicit rejection of the “custom” rule in medical malpractice doctrine. It held that defendant ophthalmologists were negligent As a matter of law for failing to test the plaintiff (who would have consented to the test) for glaucoma, despite uncontroverted expert medical testimony that the custom among physicians was not to administer the test to persons under 40, the age group of the plaintiff, because of the rarety (1 out of 25,000) with which the disease appears in that group. Defendants there did not propose the subject test at all, as was done here. Thus Helling is simply not in point.

Moreover, the Helling case has been soundly criticized (see Pearson, “The Role of Custom in Medical Malpractice Cases,” (1976) 51 Ind.L.J. 528) and later opinions of the Washington Court of Appeals have sharply limited it, concluding that “(a) thorough analysis of that decision (Helling) leads us to conclude the holding there was intended to be restricted solely to its own ‘unique’ facts, I. e., cases in which an opthalmologist is alleged to have failed to test for glaucoma under the same or similar circumstances.” (Meeks v. Marx (1976) 15 Wash.App. 571, 550 P.2d 1158, 1162; accord, Swanson v. Brigham (1977) 18 Wash.App. 647, 571 P.2d 217, 219.) The Meeks court also notes in a footnote that the Helling decision has been nullified by statute: “RCW 4.24.290, enacted as ch. 35, Laws of 1975, 1st Ex.Sess., effective September 8, 1975, requires a plaintiff in a medical malpractice case to ‘prove by a preponderance of the evidence that the defendant or defendants failed to exercise that degree of skill, care and learning possessed by other persons in the same profession . . . ’ According to the Washington House Committee on the Judiciary, report on Substitute House Bill 246 (March 24, 1975), this legislation was a direct result of the decision in Helling v. Carey, 83 Wash.2d 514, 519 P.2d 981 (1974), its purpose being to reestablish pre-Helling standards of negligence. See also 51 Wash.L.Rev. 167 (1975) and 10 Gonz.L.Rev. 220 (1974).” (Meeks v. Marx, supra, 550 P.2d at p. 1162, fn. 3.)

The Helling holding was rejected by the only California case to consider it, Barton v. Owen (1977) 71 Cal.App.3d 484, 498, 139 Cal.Rptr. 494. We agree with the analysis of Barton. (See also Righting the Liability Balance, Report of the California Citizens' Commission on Tort Reform (1977) pp. 69-70.)

At bottom, plaintiffs' argument is that defendant should have been more persistent, more threatening, more persuasive, in convincing Rena to submit to a pap smear test. Apart from the very real threat such a rule would pose to a patient's freedom of control over his or her own medical care, there is an equally serious threat to the integrity of the judicial process itself: “The most basic limit of adjudication is that it requires substantive rules of sufficient specificity to support orderly and rational argument on the question of liability. The reforms and changes in the law of negligence in recent years have, purportedly to advance identifiable social objectives, eliminated much of the specificity with which negligence principles traditionally have been formulated. We are rapidly approaching the day when liability will be determined routinely on a case by case, ‘under all the circumstances' basis, with decision makers (often juries) guided only by the broadest of general principles. When that day arrives, the retreat from the rule of law will be complete, principled decision will have been replaced with decision by whim, and the common law of negligence will have degenerated into an unjustifiably inefficient, thinly disguised lottery.” (Henderson, “Expanding the Negligence Concept: Retreat from the Rule of Law” (1976) 51 Ind.L.J. 467, 468.)

Permitting a jury to decide, without reference to medical custom and standards of practice, whether defendant urged a pap smear test Urgently enough would give no direction to other physicians (other than unnecessarily to increase medical costs by requiring the use of all conceivable minutia of “defensive” medicine), and would require litigation of every future case of injury from failure to accept suggested treatment because no one can predict how much a lay jury might deem Enough urging.

III

Plaintiffs proposed two instructions on “informed consent,” the instruction from the standard Book of Approved Jury Instructions (BAJI) (BAJI No. 6.11, 1975 Rev.), and a special instruction. Both were rejected.

A

The BAJI instruction is intended for use when the patient has consented to a proposed treatment or operation, and therefore speaks of a physician's “. . . liability for any injury (proximately) (legally) resulting from the (treatment) (operation) if a reasonably prudent person in the patient's position would Not have consented . . . if he had been adequately informed of all the significant perils.” (Emphasis added.) Rather than consent to the proposed treatment, Rena rejected it. So phrased therefore, this instruction was not relevant to the issues and could only confuse the jury. It was properly refused.

B

Paraphrasing a segment of BAJI No. 6.11, the proposed special instruction reads:

“It is the duty of a physician to disclose to his patient all relevant information to enable the patient to make an informed decision regarding the submission to or refusal to take a diagnostic test.

“Failure of the physician to disclose to his patient all relevant information including the risks to the patient if the test is refused renders the physician liable for any injury legally resulting from the patient's refusal to take the test, if a reasonably prudent person in the patient's position would not have refused the test if she had been adequately informed of all the significant perils.”²

The trial court took the view that this proposed instruction, omitting as it does any reference to the standard of medical practice, does not correctly state the law in California, because a physician's duty to inform patients of the risks of refusing to submit to a test is only as stringent as the standard of medical practice and care in the community. Plaintiffs argue that a physician has a duty, above and beyond whatever may be customary among other physicians, to disclose the risks of refusal to a patient who rejects a recommended test.

Plaintiffs rely upon Cobbs v. Grant (1972) 8 Cal.3d 229, 243, 104 Cal.Rptr. 505, 514, 502 P.2d 1, 10, which stated: “Therefore, we hold, as an integral part of the physician's overall obligation to the patient there is a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each.”

But Cobbs was concerned with disclosure of risks involved in Therapy proposed by the physician. This duty of disclosure is imposed because of the patient's “. . . abject dependence upon and trust in his physician for the information upon which he relies during the decisional process, . . .” (Id. at p. 242, 104 Cal.Rptr. at p. 513, 502 P.2d at p. 9.) It is intended to protect patients from “abjectly” acquiescing in their physician's advice without adequate knowledge of the risks involved. No such protection is necessary where the patient has asserted himself and Rejected that advice. The Cobbs rationale simply does not apply to such a case. Certainly it is proper to protect a patient from the physician's lack of judgment. It does not follow that the doctor should be required to protect his patient from the patient's lack of judgment. Cobbs is distinguishable on its facts, which unlike this case, brought it within the BAJI No. 6.11 rubric.

To our knowledge no reputed authority exists dealing with what we have here, informed consent with a reverse twist. A fortiori, no California case has recognized it. Thus plaintiffs ask us in effect to formulate and launch a doctrine of “informed refusal,” under which the occupational liability of physicians, as in informed consent, hinges upon matters other than their professional competence and skill.

After thorough and protected consideration of the issue we have determined that such a doctrine has no place in California's jurisprudence.

Our analysis begins with the basic rule that a physician's liability for injury to his patient is measured by his compliance vel non with applicable standards of medical practice in the community. (Cobbs v. Grant, supra, 8 Cal.3d at p. 238, 104 Cal.Rptr. 505, 502 P.2d 1; 4 Witkin, Summary of Cal.Law (2d ed. 1974) Torts, s 514, p. 2778-2779; Harney, “Medical Malpractice, s 3.1 et seq., p. 88 et seq.); to support a finding of violation of the standard of care, proof must be by expert testimony. (Cobbs v. Grant, supra, 8 Cal.3d at pp. 236-238, 104 Cal.Rptr. 505, 502 P.2d 1.) Exceptions to this rule are now firmly recognized in the areas of common knowledge (Id., at p. 236, 104 Cal.Rptr. 505, 502 P.2d 1), res ipsa loquitur (Witkin, Cal.Evidence (2d ed. 1966) s 278 et seq., p. 238 et seq.), and informed consent (definitively covered in Cobbs v. Grant, supra, 8 Cal.3d at pp. 239-246, 104 Cal.Rptr. 505, 502 P.2d 1). Because an informed refusal doctrine is in reality an extension of informed consent, the very thorough discussion of the latter in Cobbs v. Grant must carefully be studied before a determination regarding the former can be made.

As pointed out in Cobbs v. Grant (8 Cal.3d at p. 239, 104 Cal.Rptr. 505, 502 P.2d 1), informed consent was originally founded upon the theory of a “technical battery” an “unpermitted, unprivileged contact with (one's) person” (Prosser on Torts (2d ed. 1955) s 9, p. 30). While recognizing that some jurisdictions continue to adhere to the battery theory, Cobbs substantially rejected it for California, stating that “(t)he battery theory should be reserved for those circumstances when a doctor performs an operation to which the patient has not consented. When the patient gives permission to perform one type of treatment and the doctor performs another, the requisite element of deliberate intent to deviate from the consent given is present. However, when the patient consents to certain treatment and the doctor performs that treatment but an undisclosed inherent complication with a low probability occurs, no intentional deviation from the consent given appears; rather, the doctor in obtaining consent may have failed to meet his due care duty to disclose pertinent information. In that situation the action should be pleaded in negligence.” (Id., at pp. 240-241, 104 Cal.Rptr. at p. 512, 502 P.2d at p. 8.)

Considered in terms of battery, informed consent is readily within the grasp of lay comprehension, thus appropriately an exception to the general rule requiring expert testimony. Its refinement into a negligence concept does not and need not alter this characteristic. We note however the total absence of any battery consideration in informed refusal.

By logical progression the Cobbs court then proceeded to a consideration of the asserted right of a physician, “In accordance with medical rather than legal standards, (to withhold) information from a patient” (emphasis added) (Id., at p. 242, 104 Cal.Rptr. at p. 513, 502 P.2d at p. 9); it resolved this question in the negative, imposing instead “a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each.” (Id., at p. 243, 104 Cal.Rptr. at p. 514, 502 P.2d at p. 10.) In the process, the Cobbs court declared the underlying foundation for its holding, stating (at p. 242, 104 Cal.Rptr. at p. 513, 502 P.2d at p. 9) “(p)reliminarily we employ several postulates. The first is that patients are generally persons unlearned in the medical sciences and therefore, except in rare cases, courts may safely assume the knowledge of patient and physician are not in parity. The second is that a person of adult years and in sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment. The third is that the patient's consent to treatment, to be effective, must be an informed consent. And the fourth is that the patient, being unlearned in medical sciences, has an abject dependence upon and trust in his physician for the information upon which he relies during the decisional process, thus raising an obligation in the physician that transcends arms-length transactions.” We view this statement as the cornerstone of informed consent.

Next the Cobbs court considered whether the yardstick for determining “reasonable disclosure” should be measured by the standard of physicians in the community or by lay standards requiring no expert testimony. It recognized the latter, finding “(u)nlimited discretion in the physician . . . irreconcilable with the basic right of the patient to make the ultimate informed decision regarding the course of treatment to which he knowledgeably consents to be subjected.” (Id., at p. 243, 104 Cal.Rptr. at p. 514, 502 P.2d at p. 10.)

Cobbs then clarified the scope of the disclosure, excluding from the concept of “full disclosure” any detailed technical explanation or any minor risks inherent in a procedure but of very low incidence. “In sum” concluded the Cobbs court, “the patient's right of self-decision is the measure of the physician's duty to reveal. That right can be effectively exercised only if the patient possesses adequate 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, and that need is whatever information is material to the decision. Thus the test for determining whether a potential peril must be divulged is its materiality to the patient's decision.” (Id., at p. 245, 104 Cal.Rptr. at p. 514, 502 P.2d at p. 11.)

Last (for purposes of This discussion), the Cobbs court pointed out that the informed consent doctrine requires a causal connection, measured by an objective standard, between the failure to inform and the injury, i. e., “that had revelation been made consent to treatment would not have been given.” (Id., at p. 245, 104 Cal.Rptr. at p. 515, 502 P.2d at p. 11.)

It is noteworthy that the Cobbs discussion stresses repeatedly the freedom of the patient to make his choice and the consequent need for the requisite information upon which to base that choice, which information can come only from the physician. Informed refusal is analogous, maintains the plaintiff's argument, for again the patient must make the choice and should make it intelligently; again he requires the necessary information regarding risk of rejecting the proffered treatment, which only the doctor can supply. Though no concepts of battery are involved in informed refusal, the duty to disclose is the same when measured by negligence rather than by battery standards. It is not for doctors to determine according to their custom that in certain cases information may properly be withheld. Nor should the extent of “reasonable disclosure” of risks of refusal be measured by other than lay standards. The scope of disclosure is the same, i. e., coextensive with its materiality to the patient's decision. And finally, concludes the contention, the same causal connection is appropriate, measured by an objective standard. The analogy is complete; informed refusal and informed consent, once analyzed side by side, are indistinguishable.

There is much of a persuasive nature in the foregoing disputation in support of an informed refusal doctrine. Moreover it is tempting to adopt it for the apparent sheer simplicity of the act of relating to a patient in lay terms the risk of not following proffered advice; indeed this is arguably more simple than an explanation of risks involved in a course of treatment to which the patient consents.

There is however a most fundamental distinction between consent to and refusal of affirmative treatment. When the patient consults a doctor, he is indeed Abjectly dependent, in the words of Cobbs v. Grant, upon that doctor for advice and aid. That is in fact the sole reason for the consultation. It is nonsensical to claim that he goes to the doctor for advice he will not thereafter follow; hence indeed the rationale for informed consent. Presumably the advice will be followed, especially when it involves a matter of a simple test, routinely given, quite inexpensive ($6 for a pap smear), and to which the patient has earlier submitted. Advice to submit to an affirmative course of treatment invariably carries with it the unmistakable implication that if it is not followed, the consequences to the patient will be adverse.

To require a doctor, under pain of malpractice at the hands of a lay jury, routinely to deliver a dissertation regarding the potential adverse consequences of failure to take a recommended test would degrade and demean both doctor and patient, treating both as dolts who lack even the most elementary respect for one-another's intelligence and judgment. We therefore hold that ordinarily there is no duty on the part of a physician to advise of the dangers of failure to submit to a test or a course of treatment he recommends.

We do not however decree that a doctor has no duty so to warn under any circumstances. Such a duty of course exists whenever the patient requests such advice. If the patient contemplates rejection of the recommended test, given his abject dependence upon the physician, it is incumbent upon him to ask for an explanation of the risks of rejection. The doctor however may rightfully assume in the ordinary case that his advice will be taken, most certainly with reference to simple recommendations such as a $6 pap smear.³

What plaintiffs seeks here is an absolute rule applicable to all occasions where treatment is recommended, requiring a doctor, concurrently with advice, also to narrate the dangers of refusal to follow it. We cannot countenance such a rule.

Everything of course is not as simple as a pap smear, and there are doubtless occasions (other than those suggested in fn. 3 Ante ) where a doctor, along with recommended treatment should undertake affirmatively to warn against the dangers of failing to take it. But that requirement is limited to situations dictated by the standard practice in the medical community, according to expert testimony.

In summary, we hold that when a doctor recommends a test to his patient, he is entitled to assume and presume that the patient will follow the recommendation. The doctor has the further right to assume that the patient, in his abject dependence upon the expertise of the doctor, recognizes that if he does not accept the recommended treatment detriment will result. Therefore, unless he is asked for advice regarding the dangers of abstention, or unless unique circumstances dictate the need for explanation, the doctor need not warn except on those occasions where it is customary within the medical community, for reasons of unusual treatment, rare disease, or the like, to do so.

Again we emphasize that plaintiffs have asked us to enunciate a rule of universal application, like the informed consent rule. No case more offensive to the concept of such a rule can be imagined than the one at hand, in which a woman experienced in the pap smear test is repeatedly told by her doctor to take one, yet exercising her freedom of choice does not do so. Her counsel has stressed again and again the fact that for a mere $6, her life might have been saved. This is tragically true. But this very same $6 argument demonstrates the absurdity of her own dereliction. If she was not to follow this simple bit of advice from the doctor in whom she entrusted her physical care, it was incumbent upon her at least to inquire into the consequences of such refusal. There is no justification for the rule of liability being sought in her behalf.

The judgment is affirmed.

I join in part I and part III-A of the majority opinion. Although I do not agree with the reasoning leading to the result, I also concur in part II of the majority opinion. I must, however, respectfully dissent to part III-B.

The majority characterizes the issue presented to us by this case as one of “informed refusal,” which it distinguishes from “informed consent.” It then premises differences in the doctor's duty to reveal pertinent information based on that distinction. In my judgment such a distinction is irrelevant, and thus the conclusions drawn erroneous. I believe the error arises from a failure to focus on the gravamen of Cobbs v. Grant (1972) 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1. Cobbs teaches that the appropriate focus for resolution of this issue is the right of a patient to make an informed judgment concerning her body and its treatment. Indeed the Cobbs' rationale is so directly determinative of the issues before us, that I am not sure that the question of “informed refusal” is open to us.¹

The critical test for the resolution of the informed consent issue is characterized by the Supreme Court, as follows: “. . . the patient's right of self-decision is the measure of the physician's duty to reveal. . . . (t)he scope of the physician's communications to the patient, then, must be measured by the patient's need, and that need is whatever information is material to the decision.” (8 Cal.3d at p. 245, 104 Cal.Rptr. at p. 515, 502 P.2d at p. 11.)

If the critical test for the revealing of information is the patient's right to bodily autonomy, then that right extends to the information necessary for the patient to undertake treatment and to refuse to treat. Clearly, testing is no more than a step in the treatment process. It seems clear that the scope of information required for testing or treatment is the same in either case, and, accordingly, the duty to inform the patient is coextensive. The Supreme Court's decision focused on the patient's right to make the decision about her future. Our court abandons that focus. I do not understand why we do so.

The majority initiates its analysis by noting “. . . the total absence of any battery consideration in informed refusal. . . .” The observation, while accurate, is irrelevant. Cobbs clearly recognized that informed consent was merely a variant of negligence in a professional context. Accordingly, the absence of battery considerations like the absence of any other irrelevant considerations helps not at all in resolution of the problem.

More pertinently, however, close examination of the criteria the majority views as determinative demonstrates that the opinion really subverts the rationale of Cobbs rather than distinguishes between “informed consent” and “informed refusal.” The majority asserts “(i)t is nonsensical to claim that (the patient) goes to the doctor for advice he will not thereafter follow; hence indeed the rationale for informed consent” i. e., that since the patient will follow the advice given, she should be informed of the consequences of doing so.² If indeed it is nonsensical, then a fortiori when the doctor suggests further tests (the implication being that the doctor does not have sufficient information in his possession to render advice), and since the expectation is that the patient will follow the advice, the patient's failure to do so most likely is predicated upon the patient's failure to fully comprehend the circumstances, and the doctor's duty to inform must attach.

Likewise, the majority's suggestion that requiring the physician to disclose the consequences of failure to take the recommended tests “would degrade and demean both doctor and patient, treating both as dolts who lack even the most elementary respect for one-another's intelligence and judgment” applies to the rationale of Cobbs, no less than to the issue before us. However, even conceding the majority's argument, it is still not clear why the duty to reveal information pertinent to the patient's well-being should turn on the patient's request.³

Moreover the majority's observation that “when a doctor recommends a test to his patient, he is entitled to assume and presume that the patient will follow the recommendation,” is not pertinent to the issue before us. The issue in this case is what is the doctor's duty when by virtue of the patient's conduct the doctor need neither assume nor presume, he knows his advice is not being followed. It appears clear to me that under such circumstances, a simple duty to inform the patient of the purpose of the test and foreseeable risks of failure to take the tests is a salutary resolution of the problem. Thus, I find neither a legal nor practical medical reason to place the burden of inquiry on the patient.

Moreover, our entire law appears to be consistent with a duty to disclose. In other contexts, a fiduciary is obligated to disclose pertinent facts (see the cases collected at 4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, ss 459, 460, pp. 2724-2725). Clearly, in the ordinary relationship, a patient relies on his doctor as profoundly as a principal on his fiduciary. Moreover, as Witkin notes: “The duty to disclose may arise without any confidential relationship where the defendant alone has knowledge of material facts which are not accessible to the plaintiff” (Id., at p. 2726). The typical doctor-patient relationship is precisely one in which the doctor is in possession of material facts not accessible to the plaintiff. Why a vendor of a home must disclose pertinent facts but not a doctor is difficult for me to understand. Moreover, again, as Witkin notes: “A further exception is recognized where one who is under no duty to speak nevertheless does so. In such case he is bound to speak honestly, and not to suppress facts which materially qualify those stated, for misleading half truths may be actionable” (Id., at p. 2727). Here again, the doctor has spoken; he has suggested to the patient that the patient take a given test. It cannot be doubted that he has done so for some specific reason; yet, the suppression of the reason is the suppression of a material fact. Indeed in this case it was the suppression of the most material and urgent fact. Can it be doubted that, had the decedent in this case known that for $6 and mild discomfort she could discover the existence of cervical cancer and thus survive, she would have taken the test? Central to her failure to take the test was a clear lack of understanding of the significance of the doctor's recommendation.

Thus, it seems to me that no justification exists for a doctrine of law which places the burden on the patient to initiate inquiry. Nor do I believe that the “medical standards” exception which the court announces substantially meets the problem we decide today.

The doctrine of “applicable medical standards” is the product of a complex of disparate facts and values. First, a doctor is not an insurer of his patient's health; second, a doctor may not be held responsible for the fact that medical science's ability to treat a given disease may not be sufficient no matter how skillful the doctor's application of that knowledge; third, medicine is both an art and a science, and a doctor ought not be held to the standard of the greatest practitioner, it being sufficient if he possesses that learning and skill “ordinarily possessed by reputable physicians and surgeons, practicing in the same . . . locality under similar circumstances” and uses that learning and skill with both reasonable diligence and his best judgment. (BAJI No. 6.00.)⁴ Such a standard will ordinarily suffice to allocate the loss occasioned by a failure of treatment to cure.

Further, the courts recognize that in most cases questions of the application of the standard of care is not a matter of common knowledge, and have required expert opinion on whether the standard has been violated. (Keen v. Prisinzano (1972) 23 Cal.App.3d 275, 100 Cal.Rptr. 82.) Here again, the laws resort to expert opinion simply recognizes a fact namely, that in most cases the jury is not possessed of a background sufficient to judge the issue.⁵

None of the above observations, however, deals with a more difficult and subtle problem what if, as plaintiffs suggest here, the medical profession has adopted a “negligent” standard?⁶ Traditionally in “nonmedical” cases the courts resolve the issue by noting that it is the court, not the custom, which defines ordinary prudence. (Texas & P. R. Co. v. Behymer (1903) 189 U.S. 468, 23 S.Ct. 622, 47 L.Ed. 905; The T. J. Hooper (2d Cir. 1932) 60 F.2d 737.) As noted above for various reasons, some “good” and some “bad” that ordinary rule does not apply to medical malpractice.

The Washington Supreme Court solution to this question in Helling v. Carey (1974) 83 Wash.2d 514, 519 P.2d 981 (a kind of ex cathedra determination of liability) does not appear to represent a proper solution. First, the court is put in the untenable position of determining an appropriate standard of care without the requisite medical training. Secondly, as a practical matter, no medical procedure may be safely undertaken without prior approval by the court of last resort. I would suggest a different solution, and, I believe, a resolution appropriate to this case. In the relatively rare case where it is plaintiff's position that in fact the standard of care is inadequate, the patient be permitted to introduce expert opinion as to what the standard “should be,” in terms of “foreseeability of unreasonable risk of harm,” coupled with testimony that the factual basis for the opinion is widely disseminated in the medical community. Defendant on the other hand, should be able to meet such testimony with controverting expert opinion or other explanations of why the standard proposed is contraindicated. It may be that such a formulation is simply another way of casting the debate as to what the standard of care is, but it appears to me that if nothing else, it may shift litigation in these relatively few cases to a more honest and open arena. Moreover, it might direct the medical profession to question the standard in appropriate cases. I can hardly believe that such occasional self-questioning is any less beneficial for the medical profession than any other, including our own.

Thus, I conclude that when a doctor has advised a patient to undergo testing and a patient declines to do so, the doctor has an affirmative duty to insure that the patient's refusal is informed by all material facts pertinent to the decision. Such duty is excused if such communication is not required under a reasonable medical standard of practice. Where the doctor breaches this duty, he is liable for all damages proximately caused by the failure to communicate, if a reasonable person possessed of such information would have submitted to the testing.

Since this case was not tried under that standard, I would reverse.

FOOTNOTES

1.  As will be hereinafter explained, the doctrine advocated by plaintiffs is more appropriately designated “informed refusal.”

2.  We have quoted the instruction as originally submitted by plaintiffs. Its language was modified to some extent and reoffered as modified, but the modifications did not alter the substance.

3.  In this case there is no indication of substandard intelligence, hysteria, mental illness, or other reason for defendant to believe that an explanation of the risks of refusal was necessary; such matters could give rise to an affirmative duty to warn. Moreover there is no evidence that Rena, to whom a pap smear was not a new experience, ever questioned its value or purpose.Furthermore, Rena continually told defendant she would have a pap smear done shortly in connection with a complete physical examination. There was never a direct express refusal by her to follow the recommendation; there was only procrastination. Had there been a forthright refusal, a duty actively to undertake advice of risks might more persuasively be asserted. But such was not the case.

1.  For convenience, I use the majority's language; however, as I point out Infra, I believe that, given the rationale underlying Cobbs v. Grant (1972) 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1, it is a distinction without a difference.

2.  I do not share the majority's view of the relationship between doctor and patient; however, more to the point is that Cobbs does not share the view. Although Cobbs notes the necessity of the patient's reliance on the doctor, it perceives the patient as having the right to evaluate the advice given.

3.  Indeed, it appears as reasonable to suggest that a patient who fails to request such information is the one in greatest need. Although one possible reason for such refusal is the patient's distrust of the doctor, other reasons may well be that the patient is so timid that she is unwilling to even inquire as to her own best interests, or so ignorant as to misunderstand the implications of the suggestion.

4.  The effect of this doctrine has serious consequences. It takes from the jury its general function as the repository of the standard of community conduct and places it with a group which for legal purposes (as contrasted with medical purposes) has a profound economic interest in setting the lowest standard. It has been suggested that such an approach is a practical necessity arising out of the particular appeal of malpractice plaintiffs, and the extremely serious consequences to the physician. (Morris, Custom and Negligence (1942) 42 Colum.L.Rev. 1147, 1164-1165.) Given the present public controversy concerning malpractice, such an analysis is questionable. On the other hand, other good and sufficient reasons over and above those cited have been suggested. (See e. g., 11 New England L.Rev. 301 (1975); 28 Vand.L.Rev. 441 (1975).)

5.  Contrary to popular belief, the cumulative effect of making the profession the repository of both the standard and the proof suggests to me that a medical malpractice case is a very difficult plaintiff's case. Indeed, as a practical matter, such cases have, in general, been handled by a restricted group of attorneys with very highly developed medical knowledge, and limited to the most serious injuries.

6.  That is a standard to which a reasonably prudent doctor “ought not” to adhere. Obviously this verbal formulation suggesting a moral component raises other difficult questions. In general, however, the “ordinary” test of negligence embodied in BAJI No. 3.11 (foreseeability of an unreasonable risk of harm) will suffice for this discussion.

PARAS, Associate Justice.

PUGLIA, P. J., concurs.