Cowman v. Hornaday, 67261

Citation329 N.W.2d 422
Decision Date19 January 1983
Docket NumberNo. 67261,67261
CourtUnited States State Supreme Court of Iowa
PartiesGary R. COWMAN, Appellant, v. William R. HORNADAY, Jr., Appellee.

William E. Davis, Davenport, for appellant.

John A. McClintock and David L. Brown of Hansen, McClintock & Riley, Des Moines, for appellee.

Before REYNOLDSON, C.J., and LeGRAND, UHLENHOPP, HARRIS, and McCORMICK, JJ.

REYNOLDSON, Chief Justice.

In this medical malpractice case plaintiff Gary R. Cowman appeals from a summary judgment for defendant William R. Hornaday, Jr. We reverse and remand.

Plaintiff's petition alleged that on September 29, 1976, defendant performed a contraceptive bilateral vasectomy upon him. Further, "[t]hat previous to said surgery, the Defendant, neither personally nor through his agents, informed Plaintiff ... of the risks involved in said surgical procedure, which were known or should have been known to the Defendant, such as the development of sperm granulomas, hematomas and testicular atrophy, and the probability of each such risk." Plaintiff alleged he thus had no knowledge upon which to form a consent and therefore did not consent or authorize the vasectomy operation. Defendant, he asserted, was guilty of assault and battery upon him and was negligent in failing to warn him of the serious nature of the operation or "that there was a possibility that the aforementioned complications could result," and "[t]hat as a result of the aforesaid, the Plaintiff ... has sustained permanent physical impairment of testicular atrophy."

In his answer defendant admitted he was a physician and surgeon with practice limited to urology. He further admitted acceptance of plaintiff's case on September 24, 1976, agreement to perform a contraceptive bilateral vasectomy upon him, and performance of the surgery as alleged. He denied all the other allegations of plaintiff's petition.

Following discovery defendant filed motion for summary judgment, alleging Iowa law requires a plaintiff in a medical malpractice action to produce expert testimony to establish specific negligence against the defendant-physician, the action should be pleaded in negligence and not assault and battery, plaintiff was unable to secure expert medical testimony to show the defendant's negligence, and defendant's deposition testimony disclosed the incidence of atrophy of the testicle is so remote that a physician would not make such information a part of his reasonable disclosure to the patient prior to performing a bilateral vasectomy.

Plaintiff's resistance to the motion concedes he has not procured an expert witness to testify with respect to the claimed negligence, nor does he intend to.

The pleadings, depositions and interrogatory answers on file disclose that defendant asserts he told plaintiff at their first meeting about the complications of bleeding into the scrotum (scrotal hematoma), infection, sperm granuloma and several other "alleged possibil[ities]": rheumatoid arthritis, multiple sclerosis and Hodgkin's disease. Defendant was aware of the possibility of testicular atrophy, but did not inform plaintiff of that because the possibility is "extremely remote." Plaintiff denies he was informed of these possible complications.

The record before us indicates complications did result from the surgery. Following the vasectomy plaintiff developed pain in the scrotal area. He returned to defendant who diagnosed a sperm granuloma on both sides. Medication failed to dissipate the sperm granuloma on the left side and it was surgically removed on February 21, 1977. That night he developed scrotal hematoma, resulting in a four-day hospitalization during which the scrotum was reopened, drained and packed with gauze that remained for ten days to two weeks. In about seven weeks when the drainage stopped and the wound healed, atrophy of the left testicle was evident. Plaintiff later was treated extensively by other doctors for infection of the right testicle and prostate. For purposes of the issue before us, there is no dispute that the testicular atrophy resulted from the vasectomy. Defendant's brief describes the situation as one in which "an undisclosed complication of remote possibility occurred."

I. The principles that guide our review are well settled. A summary judgment "shall be rendered ... if the pleadings, depositions, answers to interrogatories ... show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Iowa R.Civ.P. 237(c). "The trial court (and this court on review) must look at the whole record in the light most favorable to the one against whom the motion is made. The moving party has the burden to show the absence of a fact issue. Even if the facts are undisputed, summary judgment is not appropriate if reasonable minds may draw different inferences from them." Enochs v. City of Des Moines, 314 N.W.2d 378, 379-80 (Iowa 1982) (quoting Tasco, Inc. v. Winkel, 281 N.W.2d 280, 282 (Iowa 1979)).

Another matter we have mentioned above deserves comment. Plaintiff's allegations charging assault and battery would be appropriate only in circumstances in which a doctor performs an operation to which the patient has not consented. Perin v. Hayne, 210 N.W.2d 609, 618 (Iowa 1973). Here there was a purported consent to the operation performed. Nonetheless, plaintiff's petition alleged negligence sufficiently to minimally qualify as stating a tort action under our liberal pleading procedure. Iowa R.Civ.P. 67, 69.

II. Were it not for plaintiff's concession that he did not intend to present expert medical testimony to establish the profession's standards (if any) on disclosure necessary to obtain informed consent in these circumstances, we would reverse on the authority of Daboll v. Hoden, 222 N.W.2d 727 (Iowa 1974). There the affidavit of one of the defendant doctors described the circumstances surrounding the death of plaintiff's decedent and alleged defendants exercised the degree of knowledge, skill, care and treatment ordinarily exercised by physicians and surgeons under like circumstances in the community. Plaintiff produced no countervailing medical affidavit or deposition testimony, and failed to answer an interrogatory seeking the identity of his experts. This court pointed out that issues of negligence, contributory negligence and proximate cause ordinarily cannot be disposed of by summary judgment. Id. at 732-33. We observed that the jury would not be obliged to accept as true the testimony of the affiant-physician, and that a summary disposition should be granted only on evidence a jury would not be at liberty to disbelieve. Id. at 734-35. We reversed the summary judgment for the defendants and remanded for trial. The posture of the case before us, however, requires us to resolve an issue of law: Can plaintiff survive a summary judgment motion while admitting he will produce no expert testimony at trial to establish what the profession's standards would require him to be told relating to the risks of the contemplated surgery?

III. Undergirding this controversy, of course, are the principles attached to the doctrine of informed consent. That doctrine is based on the patient's right to exercise control over his or her body, at least while undergoing elective surgery, 1 by making an informed choice whether to submit to the particular therapy. Sard v. Hardy, 281 Md. 432, 439, 379 A.2d 1014, 1019 (1977). Courts frequently commence their analysis with Judge Cardozo's observation that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body." Schloendorff v. Society of N.Y. Hospital, 211 N.Y. 125, 129, 105 N.E. 92, 93 (1914), overruled, Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3 (1957). The doctrine recognizes the probability that, unlike the physician, the patient is untrained in medicine, and therefore completely dependent on the trust and skill of the physician for the information upon which his or her decision is based. Cobbs v. Grant, 8 Cal.3d 229, 242, 104 Cal.Rptr. 505, 513, 502 P.2d 1, 9 (1972).

This duty to disclose has been held to include information relating to the nature of the ailment, the nature of the proposed treatment, the probability of success of the contemplated therapy and its alternatives, and the risk of unfortunate consequences associated with such treatment. Natanson v. Kline, 186 Kan. 393, 410, 350 P.2d 1093, 1106 (1960); Scaria v. St. Paul Fire & Marine Insurance Co., 68 Wis.2d 1, 11, 227 N.W.2d 647, 653 (1975); see Grosjean v. Spencer, 258 Iowa 685, 693, 140 N.W.2d 139, 144 (1966).

Two different approaches have evolved for measuring the physician's duty to disclose. The first is the "professional rule," which in essence requires the patient to prove the customary disclosure practices of physicians or what a reasonable physician would disclose under the same or similar circumstances. See, e.g., Rodriguez v. Jackson, 118 Ariz. 13, 18, 574 P.2d 481, 486 (Ct.App.1977); Fuller v. Starnes, 268 Ark. 476, 479, 597 S.W.2d 88, 90 (1980); Ziegert v. South Chicago Community Hospital, 99 Ill.App.3d 83, 92, 54 Ill.Dec. 585, 593-94, 425 N.E.2d 450, 458-59 (1981). The second, or "patient rule," generally requires that the physician's communications to the patient be measured by the latter's need, and that need is the information material to the decision. See, e.g., Canterbury v. Spence, 464 F.2d 772, 786 (D.C.Cir.), cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972); Cobbs v. Grant, 8 Cal.3d at 245, 104 Cal.Rptr. at 515, 502 P.2d at 11; Harnish v. Children's Hospital Medical Center, 387 Mass. 152, 155, 439 N.E.2d 240, 243 (1982); Cornfeldt v. Tongen, 262 N.W.2d 684, 701-02 (Minn.1977); Wilkinson v. Vesey, 110 R.I. 606, 626-27, 295 A.2d 676, 688 (1972).

In determining materiality in this context two different tests have been articulated. The first, which mainly exists only in theory, is a "subjective"...

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    ...or Lack of Training.A. Informed Consent—Generally. Iowa’s current informed-consent law finds its genesis in two cases: Cowman v. Hornaday , 329 N.W.2d 422 (Iowa 1983), and Pauscher v. Iowa Methodist Medical Center , 408 N.W.2d 355 (Iowa 1987). In Cowman we adopted the "patient rule" as the ......
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