Natanson v. Kline
| Decision Date | 05 August 1960 |
| Docket Number | No. 41476,41476 |
| Citation | 354 P.2d 670,187 Kan. 186 |
| Parties | Irma NATANSON, Appellant, v. John R. KLINE and St. Francis Hospital and School of Nursing, Inc., Appellees. |
| Court | Kansas Supreme Court |
William Tinker, Getto McDonald, Arthur W. Skaer, Jr., Hugh P. Quinn, William Porter, Alvin D. Herrington, Darrell D. Kellogg, Richard T. Foster, W. D. Jochems, J. Wirth Sargent, Emmett A. Blaes, Roetzel Jochems, Robert G. Braden, J. Francis Hesse, James W. Sargent, Stanley E. Wisdom, Vincent L. Bogart, Cecil E. Merkle, John W. Brimer and Harry L. Hobson, Wichita, for appellee, St. Francis Hospital and School of Nursing, Inc.
W. A. Kahrs, Robert H. Nelson and H. W. Fanning, Wichita, for appellee, John R. Kline.
Within the time allotted after the decision of the court herein was announced the appellees filed motions for rehearing. Thereafter, pursuant to request, leave was granted the Kansas Medical Society on May 12, 1960, to file its brief amicus curiae in support of the appellees' motions for rehearing. Finding nothing, upon consideration of the motions for rehearing and the brief of amicus curiae in support thereof, which warrants a reconsideration of the case, the motions for rehearing are denied.
Recognizing, however, that this is a case of first impression in Kansas and one establishing judicial precedent of the highest importance to the medical profession, an attempt will be made to clarify Syllabus p4 and the corresponding portion of the opinion concerning which counsel are apprehensive.
Perhaps in preoccupation over the legal obligation of a physician to his patient, the court has not adequately emphasized procedural aspects of the case, or reiterated fundamental doctrine in the law of negligence sufficiently to completely avoid efforts to misconstrue the opinion.
It is charged that the court has confused a malpractice suit, where negligence is an essential element, with an assault and battery case, where negligence is not an essentian element, thereby giving rise to a hybrid action which is neither one of negligence nor one of assault and battery, but may be a combination of the two.
It is argued the only way the court's opinion can be justified is to say that the duty of a physician to disclose to his patient the risks and hazards of a proposed form of treatment is an absolute one, and the matter is not to be judged by such disclosures as a reasonable medical practitioner would make under the same or similar circumstances.
In support of the argument, that the court has imposed an absolute duty upon the physician, the following paragraph is isolated from context:
Natanson v. Kline, 186 Kan. 393, 411, 350 P.2d 1093, 1107.
A casual reading of this paragraph in context would indicate that reference is there being made to the order in which the jury is to consider the issues presented on retrial of the case, and not to an enumeration of the various elements which must be established by the evidence to prove each of the issues stated.
The gravamen of the plaintiff's complaint was malpractice or the failure of the defendants to properly perform the duties which devolved upon them--a failure which resulted in the alleged injuries to the plaintiff. Thus it was incumbent upon the plaintiff to prove and establish (1) that the defendants failed to perform their duty; and (2) that the plaintiff's injuries were the direct and proximate result of such failure.
The petition alleged that the injuries were 'a direct and proximate result of the defendants' negligence and carelessness' and then set forth eight specific grounds of negligence, including:
'(g) He [Dr. Kline] failed to warn plaintiff that the course of treatment which he undertook to administer involved great risk of bodily injury or death.'
The answers of both defendants denied generally the allegations of asserted negligence, and in addition thereto, affirmatively pleaded that the plaintiff 'assumed the risk and hazard of the treatment.' Thus, at the trial the defendants were fully aware that the informed consent of the patient to the hazards of the treatment was an issue of fact in the case. This is true because as a defense assumption of risk is applicable only where the plaintiff is equally competent with the defendant to judge concerning the risks and hazards. See, Taylor v. Hostetler, 186 Kan. 788, 352 P.2d 1042, and cases cited therein. These affirmative allegations of the defendants presupposed an informed consent by the patient with full knowledge of the risks and hazards of the treatment.
The court held after reviewing the record presented on this appeal that a physician violates his duty to his patient and subjects himself to liability for malpractice, where no immediate emergency exists and upon facts and circumstances particularly set forth in the opinion, if he makes no disclosure of significant facts within his knowledge which are necessary to form the basis of an intelligent consent by the patient to the proposed form of treatment (Syllabus p4).
In other words, on the facts and circumstances presented by the record the appellant was entitled to some explanation concerning the risks and hazards inherent in the administration of cobalt irradiation treatment which Dr. Kline proposed to administer to her. For this treatment she was Dr. Kline's patient and not the patient of Dr. Crumpacker by whom she was referred to Dr. Kline.
The appellant was entitled to a reasonable disclosure by Dr. Kline so that she could intelligently decide whether to take the cobalt irradiation treatment and assume the risks inherent therein, or in the alternative to decline this form of precautionary treatment and take a chance that the cancerous condition in her left breast had not spread beyond the lesion itself which had been...
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Durflinger v. Artiles
...concerned herein is that of medical malpractice. Negligence is an essential element of a medical malpractice action. Natanson v. Kline, 187 Kan. 186, 354 P.2d 670 (1960). In Malone v. University of Kansas Medical Center, 220 Kan. 371, 552 P.2d 885 (1976), we summarized the duties of physici......
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Leiker By and Through Leiker v. Gafford
...a question for the jury whether ascertainable disclosures had been made by the defendants in the first place. Natanson v. Kline, 187 Kan. 186, 190, 354 P.2d 670 (1960). As to the contentions regarding expert testimony on the adequacy of the disclosure, the defendants overlook Instruction No......
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...to sterilize her, she would have rejected it. Cobbs v. Grant, 23 Cal.App.3d 236, 100 Cal.Rptr. 98, 102 (1972); Natanson v. Kline, 187 Kan. 186, 354 P.2d 670, 673-74 (1960); ZeBarth v. Swedish Hosp. Medical Center, 81 Wash.2d 12, 499 P.2d 1, 12-13 (1972). See Hamilton v. Hardy, 549 P.2d 1099......
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Sard v. Hardy
...unfortunate consequences associated with such treatment. Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, 1106, rehearing denied,187 Kan. 186, 354 P.2d 670 (1960); Scaria v. St. Paul Fire & Marine Ins. Co., 227 N.W.2d at 653; 2 D. Louisell & H. Williams, Medical Malpractice P 22.01 (1973). T......
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Hospital Ethics Committees in Kansas
...committee falls within the necessary criteria for peer review. [FN54]. See Nathanson v. Kline, 186 Kan. 393, 350 P.2d 1093, on rehearing, 187 Kan. 186, 354 P.2d 670 (1964). [FN55]. Older cases generally determine that treatment without consent was a battery or an intentional touching withou......