Getchell v. Mansfield

• Citation: 260 Or. 174,489 P.2d 953
• Parties: Verlie B. GETCHELL, Appellant, v. Charles O. MANSFIELD, M.D., and Harley B. Hiestand, M.D., Respondents.
• Decision Date: 20 October 1971
• Court: Supreme Court of Oregon

Page 953

489 P.2d 953

260 Or. 174

Verlie B. GETCHELL, Appellant, v. Charles O. MANSFIELD, M.D., and Harley B. Hiestand, M.D., Respondents.

Supreme Court of Oregon.

Argued and Submitted May 6, 1971.

Decided Oct. 20, 1971.

Levi J. Smith, Portland, argued the cause for appellant. On the briefs were Smith, Todd & Ball, P.C., Patrick M. Smith and Richard M. Sandvik, Portland.

George M. Joseph, Portland, argued the cause for respondents. With him on the brief were Morrison & Bailey, Thomas E. Cooney, Gearin, Hollister & Landis, David C. Landis and Robert H. Hollister, Portland.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN and HOWELL, JJ.

DENECKE, Justice.

In this malpractice case the trial court granted a nonsuit in favor of the defendant physician Mansfield and the jury returned a verdict for the defendant physician Hiestand. The plaintiff appeals.

The plaintiff fell and hurt her shoulder. She went to the defendant Mansfield, a general practitioner in a small Portland suburb. He diagnosed her condition as a shoulder separation and advised that surgical repair would be necessary. He sent plaintiff to the defendant Hiestand, an orthopedist. Hiestand performed the surgery by joining the separated shoulder parts with wires. Later, the wires broke from causes which are in dispute. Because of the broken wires plaintiff has had to undergo further surgery and there is evidence she has a permanent disability in her shoulder.

The case against the orthopedist went to the jury only on charges that after surgery he failed to properly immobilize plaintiff's shoulder and that he improperly instructed the plaintiff about exercises to be performed. The jury found for the orthopedist.

The trial court struck from the complaint allegations that the defendants were negligent in failing to advise plaintiff of the risks involved in correcting her condition by joining the parts with wires and in failing to advise her of alternative methods of treatment. The court granted the defendant Mansfield a nonsuit upon the ground that he had no duty to advise. The trial court further sustained objections to questions asked of the plaintiff about whether defendants had informed her of the risks involved in the surgery and alternatives to this type of surgery. The plaintiff assigns these rulings as error and states the question raised by these assignments to be: Is the duty of a physician to advise his patient of the risks involved in proposed surgical procedures and the alternative procedures available a duty imposed by law or one determined by the standard medical practice in the community? Stated more directly, the question is: Does a plaintiff have to introduce medical testimony to establish the duty to disclose?

The concept involved has been labeled, perhaps unwisely, 'informed consent.' In Mayor v. Dowsett, 240 Or. 196, 234--235, 400 P.2d 234 (1965), we accepted the concept. In that case the trial court refused to submit to the jury an allegation that the defendant physician failed to explain to plaintiff the dangers of a spinal anesthetic. We held the trial court erred. 'The general rule regarding the duty of a physician to inform his patient of known dangers is not questioned.' 240 Or. at 235, 400 P.2d at 252. We also held that while surgery without a consent based upon full knowledge by the patient might be a technical battery, such conduct also can be pleaded and proved as negligence. ¹

In Mayor v. Dowsett, supra (240 Or. 196, 400 P.2d 234), we did not examine the extent of the disclosure that must be made and whether expert testimony must be introduced to establish the extent of the duty to inform or disclose.

The decisions and the writers are in disagreement about the necessity of expert medical testimony to determine the extent of the duty to disclose. A majority of the decisions appears to hold that expert testimony is necessary. Some of the cases are collected at 75 Harv.L.Rev. 1445 (1962), and 36 Ford.L.Rev. 639, 658--666 (1968). A contrary decision is Berkey v. Anderson, 1 Cal.App.3d 790, 82 Cal.Rptr. 67, 79 (1970), which holds that no expert testimony is needed. A comment in 55 Calif.L.Rev. 1396 (1967), is in accord with that view.

The particular facts here involved are helpful in answering the question.

Plaintiff's counsel asked her if she was advised that there was a danger in the proposed surgical procedure that the wires might break and cause pain and loss of function; and that there were alternative procedures, such as the use of a screw, cutting off the end of the collarbone, strapping, which did not involve surgery, or doing nothing. The objections to the questions were sustained. On an offer of proof the plaintiff testified she would have chosen the taping (which apparently is identical to 'strapping') although she 'would probably end up with a frozen shoulder.' She stated she would have chosen the tape because she had been taped previously, apparently for another injury, and her grandson had recovered rapidly when for some reason he had been taped.

The trial court ruled the testimony inadmissible. The court was of the opinion that medical testimony was necessary to establish whether the standard of medical practice required informing the patient of the alternatives available under these circumstances and 'the question as proposed to the witness does not conform to the options and the consequences of the options as are placed in evidence.'

In most charges of negligence against professional persons, expert testimony is required to establish what the reasonable practice is in the community. The conduct of the defendant professional is adjudged by this standard. Without such expert testimony a plaintiff cannot prove negligence. The reason for this rule is that what is reasonable conduct for a professional is ordinarily not within the knowledge of the usual jury. 2 Harper and James, Law of Torts, § 17.1, 966, 968 (1956). For example, would a jury know whether it is reasonable to permit tightly packed Surgicel to remain in the body? Brannon v. Wood, 251 Or. 349, 359, 444 P.2d 558 (1968); or less esoteric, when does reasonable medical practice require that an X-ray be taken of a fractured bone which had been successfully united seven years before? Boyce v. Brown, 51 Ariz. 416, 77 P.2d 455 (1938).

On the other hand, if the jury is capable of deciding what is reasonable conduct without assistance from an expert medical witness no expert testimony is necessary to establish the standard of care. For example, a jury could find a surgeon was negligent without the assistance of expert medical testimony if the surgeon operated without sterilization of his instruments. See King v. Ditto, 142 Or. 207, 214, 19 P.2d 1100 (1933). In Daly v. Lininger, 87 Colo. 401, 288 P. 633 (1930), the court held that the jury, without expert testimony, could find the defendant dentist negligently severed a nerve when extracting a tooth.

The same criterion should be used when the negligence charged is the physician's failure to disclose; that is, whether or not a lay person is capable, without medical testimony, of making a competent decision upon the question of what a reasonable physician should tell his patient about the proposed treatment. When this criterion is applied to the facts in this case it becomes apparent that expert testimony is essential to establish some aspects of the standard of care, but not others.

A dissection of counsel's question to plaintiff illustrates this. He asked if she was advised by defendants of the risks involved in the use of wires; that the wires sometimes break and the function of the shoulder is sometimes lost.

We do not find it necessary that a physician tell the patient all the possible risks and dangers of the proposed procedures. A correct test would be to require the disclosure of all the 'material' risks, results that might well occur, not dangers that are extremely remote; risks that are of serious consequences, not unexpected results that are of little consequence.

We are not here attempting to lay down an all- encompassing rule to determine when a risk is material. Cases decided on the basis that the risk was not material are collected at Waltz and Scheuneman, Informed Consent to Therapy, 64 Nw.U.L.Rev. 628, 638--643 (1969). These authors state: 'Materiality is the keystone of the physician's duty to disclose.' 64 Nw.U.L.Rev. at 638.

Materiality is an issue which in most instances will require expert medical testimony. For example, does an infection and loss of vision occur after a cataract operation sufficiently often that a patient deciding whether to undergo such surgery should be advised of this possibility? Or, in the present case, what are the chances of the wires breaking and what will happen if they do break? These are matters about which medical testimony is essential.

Akin to the materiality requirement is the problem of whether the alternative treatment or surgery is feasible. In the case of a herniated disc, expert testimony is necessary to decide whether traction is a reasonable alternative to surgery. Again, in the present case, expert medical testimony is essential to enable a court or jury to decide whether using a screw is a feasible alternative to using wires.

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