Cobbs v. Grant:
8 Cal. 3d 229, 502 P.2d 1, 104 Cal. Rptr. 505 (1972)
Issue: Was the jury properly instructed?
Rule: Informed consent
Application: Injuries to the spleen that compel a subsequent operation are a risk inherent in the type of surgery performed on plaintiff and occur in approximately 5% of such operations.
-Defendant attacks both possible grounds for the jury verdict (negligence and lack of consent)
-There is not substantial evidence to support a jury verdict on the issue of defendants liability on the theory that he was negligent either when he decided to operate or in performing the surgery.
-Because there was a general verdict, it is impossible to know what theory the jury found the defendant guilty on.
Informed Consent: Battery vs. Negligence
-Battery: Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery.
-Negligence: When the patient consents to certain treatments 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.
Court Instruction to Jury: A physicians duty to disclose is not governed by the standard 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 of he withholds any facts which are necessary to form the basis of an intelligent consent by the patient to the proposed treatment"
Defendants objections to instructions:
- Points out that the majority of the California cases have measured the duty to disclose not in terms of an absolute, but as a duty to reveal such information as would be disclosed by a doctor in good standing within the medical community
- With one state and one federal exception, all have adopted this standard
- This near unanimity reflects strong policy reasons for vesting in the medical community the unquestioned discretion to determine if the withholding of information by a doctor from his patient is justified at the time the patient weighs the risks of the treatment against the risks of refusing treatment.
- This has never been unequivocally adopted by an authoritative source.
Examine the Standard:
- 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
- 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 patient's consent to treatment, to be effective, must be an informed consent
- 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.
-Physician must divulge to the patient all information relevant to a meaningful decisional process.
-Defendant and the majority of courts have stated the measure of the duty is to the custom of physicians practicing in the community.
-This is needlessly overbroad, doctors become vested with virtual absolute discretion.
-The patient should be denied the opportunity to weigh the risks only where it is evident he cannot evaluate the data (e.g. when there is an emergency, or if the patient is a child or incompetent)
Scope of Disclosure required:
-Full Disclosure:
- The patients interest in information does not extend to a lengthy polysyllabic discourse on all possible complications. The patient is concerned with the risk of death or bodily harm, and the problems of recuperation
- There is no physician's duty to discuss the relatively minor risks inherent in common procedures, when it is common knowledge that such risks inherent in the procedure are of very low incident
-When the given procedure inherently involves a known risk of death or serious bodily harm, a medical doctor has a duty to disclose to his patient the potential of death or serious harm, and to explain in lay terms the complications that might possibly occur.
-There must be a causal relationship between the physician's failure to inform and the injury to the plaintiff.
-Only if it is established that had revelation been made consent to treatment would not have been given.
Conclusion: No, negligence was erroneous
History:
-August 1964: Plaintiff admitted to the hospital for treatment of a duodenal ulcer.
-Was given a series of tests to ascertain the severity of his condition and, though administered medication to ease his discomfort, he continued to complaint of lower abdominal pain and nausea
-Dr. Jerome Sands, the Family Physician, concluded that surgery was indicated, discussed prospective surgery with plaintiff and advised him in general terms of the risks of undergoing a general anesthetic
-Dr. Sands called in Dr. Grant, defendant surgeon, who after examining plaintiff, agreed with Dr. Sands that plaintiff had an intractable peptic duodenal ulcer and that surgery was indicated.
-Dr. Grant explained the nature of the operation to the plaintiff, he did not discuss any of the inherent risks of the surgery.
-Next day: A 2 hour operation was performed, during which the presence of a small ulcer was confirmed.
-Following the surgery, the ulcer disappeared.
-For the next 8 days, plaintiff recovered in the hospital and was released to his home.
-Day after getting home: Plaintiff began to experience intense pain in his abdomen
-Immediately called Dr. Sands, who advised him to return to the hospital.
-2 hours after returning the hospital, plaintiff went into shock and emergency surgery was performed.
-Emergency surgery: It was discovered plaintiff was bleeding internally as a result of a severed artery at the hilum of his spleen
-Due to the seriousness of the hemorrhaging and since the spleen of an adult may be removed without adverse effects, defendant decided to remove the spleen
-After removal of his spleen, plaintiff recovered for 2 weeks in the hospital.
-One month later, he was readmitted because of sharp pains in his stomach.
-X-Rays disclosed plaintiff was developing a gastric ulcer
-The evolution of a new ulcer is another risk inherent in surgery performed to relieve a duodenal ulcer
-Dr. Sands initially attempted to treat this nascent gastric ulcer with antacids and a strict accident.
-4 months later, plaintiff was again hospitalized when the gastric ulcer continued to deteriorate and he experienced severe pain.
-Plaintiff began to vomit blood, defendant and Dr. Sands concluded that a third operation was indicated: a gastrectomy with removal of 50% of plaintiffs stomach to reduce its acid-producing capacity.
-Plaintiff was discharged, but subsequently had to be hospitalized yet again when he began to bleed internally due to the premature absorption of a suture, another inherent risk of surgery
-Plaintiff was hospitalized, and the bleeding began to abate and 1 week later was released
-Brought this malpractice suit against his surgeon, Dr. Grant, and a similar action against the hospital
Procedural History:
-Trial: Jury returned a general verdict against the hospital in the amount of $45,000 and $23,800 against defendant Grant.
Jury:
-Could have found for plaintiff either by determining that defendant negligently performed the operation, or on the theory that defendant's failure to disclose the inherent risks of the initial surgery violated the plaintiff's consent to operate
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