Albany Urology Clinic, PC v. Cleveland

• Decision Date: 06 March 2000
• Docket Number: No. S99G0600.,S99G0600.
• Citation: 528 S.E.2d 777,272 Ga. 296
• Parties: ALBANY UROLOGY CLINIC, P.C. et al. v. CLEVELAND et al.
• Court: Georgia Supreme Court

528 S.E.2d 777

272 Ga. 296

ALBANY UROLOGY CLINIC, P.C. et al. v. CLEVELAND et al.

No. S99G0600.

Supreme Court of Georgia.

March 6, 2000.

Reconsideration Denied April 13, 2000.

Watson, Spence, Lowe & Chambless, Thomas S. Chambless, Dawn G. Benson, Donaldson, Bell & Pickett, George P. Donaldson III, Albany, Tillman, McTier, Coleman & Talley, Wade H. Coleman, Valdosta, for appellants.

William S. Stone, Blakely, T. Craig Earnest, Assistant District Attorney, for appellees.

Troutman Sanders, Harold G. Clarke, Hall, Booth, Smith & Slover, John E. Hall, Jr., Jonathan Marigliano, Bondurant, Mixson & Elmore, Emmet J. Bondurant, Michael B. Terry, Frank M. Lowrey IV, Rogers & Hardin, Robert B. Remar, Webb, Carlock, Copeland, Semler & Stair, Thomas S. Carlock, Thrasher, Whitley, Hampton & Morgan, Robert E. Whitley, William M. Earnest, Jr., Alston & Bird, Jack S. Schroder, Jr., Angela T. Burnette, David A. Cook, William T. Clark, Atlanta, Tisinger, Tisinger, Vance & Greer, David H. Tisinger, Richard G. Tisinger, Jr., Carrollton, for amicus appellant.

SEARS, Justice.

Certiorari was granted to consider the Court of Appeals' ruling that a patient was authorized to bring a claim against a physician for the latter's failure to disclose his use of illegal drugs.¹ The evidence of record indicates that during the general time of the patient's treatment, the physician used drugs outside of work and when he was not on call. In its ruling, the Court of Appeals concluded that one who suffers injury during medical treatment that was consented to in conjunction with a "physician's ... non-disclosure, or concealment of a material fact which the patient has a right to know," in this case illegal drug use, entitles the patient to recover damages for fraud and battery.² We conclude, however, that absent inquiry by a patient or client, there is neither a common law nor a statutory duty on the part of either physicians or other professionals to disclose to their patients or clients unspecified life factors which might be subjectively considered to adversely affect the professional's performance. It follows that the failure to make such voluntary disclosure cannot provide a basis for a fraud claim, nor can it vitiate a patient's consent so as to authorize an action for battery. Therefore, while we find the physician's behavior reprehensible, we must reverse.

In 1993, appellee William Cleveland consulted with urologist Timothy Trulock, M.D., about a lump on the underside of his penis. Trulock expressed concern that Cleveland might have penile cancer and after Cleveland signed an informed consent statement, Trulock performed surgery under general anesthesia to remove the lump. Thereafter, Cleveland began to experience an acutely painful ninety-degree curvature of his penis upon erection, and a resulting inability to have intercourse. Cleveland sued Trulock and the Albany Urology Clinic where he practiced (collectively "Trulock"), claiming that Trulock negligently performed unnecessary surgery for non-existent penile cancer, and thereby exacerbated Cleveland's medical condition. In his complaint, Cleveland alleged that Trulock was liable for medical negligence; battery; breach of contract, warranty, and guarantee of cure. Cleveland later amended his complaint to add an assertion that Trulock had fraudulently concealed or misrepresented his "illegal use and abuse of cocaine, substance abuse problem, and impairment" at the time of Cleveland's treatment.³ In addition, Cleveland's wife sued for loss of consortium. Cleveland's expert testified that the lump on his penis was not caused by cancer but rather by Peyronie's Disease,⁴ which might have been confirmed with proper testing and treated effectively without surgery.

Prior to trial, the court dismissed Cleveland's claim for battery after finding the pleading defective under OCGA § 31-9-6.1(a). The jury returned a defendant's verdict on the malpractice claim, but returned plaintiffs' verdicts on the claim for fraudulent concealment or misrepresentation of Trulock's use of cocaine at the time of treatment. The trial court subsequently granted Trulock's motion for judgment notwithstanding the verdict, holding that because Trulock had no duty to disclose his cocaine use, Cleveland's fraud claim failed as a matter of law. The trial court also concluded that the evidence failed to establish the requisite intent for a claim of fraud.

The Court of Appeals reversed, and held that Trulock's failure to voluntarily disclose his cocaine use at the time of Cleveland's treatment was equivalent to an actual misrepresentation, and thus entitled Cleveland to file a fraud claim that was separate and distinct from his claim for medical negligence, notwithstanding the absence of evidence showing a proximate connection between Trulock's drug use and Cleveland's injury. The Court of Appeals also reversed the trial court's dismissal of Cleveland's claim for battery.

This Court granted certiorari to determine: (1) Whether there exists a duty arising from all professional relationships to disclose any factor or factors of the professional's life which might adversely affect the professional's performance; (2) Whether the failure to disclose such factors supports an action for fraud and battery; and if so, (3) Whether recovery in a suit for fraud or battery under such circumstances would require proof of damages arising from the professional's performance.

1. Prior to 1988, Georgia physicians were not required to disclose to their patients any of the risks associated with a particular medical treatment or procedure. Hence, before 1988, a physician's "silence as to risk" was not actionable and could not be the basis of a patient's claim of fraud.⁵ Although a physician did then and does now have a common law duty to answer truthfully a patient's questions regarding medical or procedural risks, absent such inquiry the common law of this state does not designate the failure to disclose such risks a fraud that may vitiate a patient's consent to medical procedures.⁶ As established by pre-1988 precedent, under the common law, evidence of a failure to reveal the risks associated with medical treatment is not even admissible in support of a claim for professional negligence.⁷

As recognized by Georgia's appellate courts, this common law rule could be changed only by legislative act.⁸ That occurred in 1988, when the General Assembly adopted the Informed Consent Doctrine, OCGA § 31-9-6.1, which became effective on January 1, 1989. Section 31-9-6.1 sets forth six specified categories of information that must be disclosed by medical care providers to their patients before they undergo certain specified surgical or diagnostic procedures.⁹ The Georgia informed consent statute does not impose a general requirement of disclosure upon physicians; rather, it requires physicians to disclose only those factors listed in OCGA § 31-9-6.1(a).¹⁰ This statutory list of mandatory disclosures does not include a requirement that physicians disclose to their patients any aspect of their personal lives which might adversely affect their professional performance.

Because OCGA § 31-9-6.1 is in derogation of the common law rule against requiring physicians to disclose medical risks to their patients, it must be strictly construed and cannot be extended beyond its plain and explicit terms.¹¹ Thus, in situations not covered by the statute's language, the common law rule must still govern, as courts are without authority to impose disclosure requirements upon physicians in addition to those requirements already set forth by the General Assembly.¹²

It follows that, notwithstanding the repugnance of Trulock's conduct at the time he rendered medical services to Cleveland, the Court of Appeals erred in concluding that Trulock was under an affirmative obligation, either under statute or common law, to disclose his drug use to his patients prior to rendering services, and that Trulock's failure to make such disclosure was the basis for an independent cause of action against him. In so doing, the Court of Appeals impermissibly expanded upon the statutory disclosures required of health care providers, and imposed upon health care providers a new, judicially-created, duty of disclosure. As explained above, that action was beyond the scope of the appellate court's authority, and it must therefore be reversed.

2. The Court of Appeals also erred in ruling that Trulock's non-disclosure of his cocaine use at the time of Cleveland's treatment entitled the latter to file a fraud claim seeking damages. Because, as explained above, Trulock was not under a duty to make any disclosures regarding his personal life factors, the failure to make such disclosure cannot logically support a claim for fraudulent concealment or nondisclosure. The Court of Appeals, however, upheld Cleveland's independent fraud claim based solely upon Trulock's concealment of a negative factor in his life that, although he was not obligated to disclose, nonetheless might have adversely affected his professional performance in treating Cleveland. Notably, the Court of Appeals held that such a claim was separate and distinct from Cleveland's claim of medical negligence. Neither the Code nor the case law authorized treating this claim independently from Cleveland's claim for malpractice.

A full and adequate remedy for Cleveland's injuries in this case is already provided by existing law—the right to sue Trulock for professional negligence. Thus, Cleveland was not deprived of the legal means by which to recover fully for his injuries, and it was not necessary for the Court of Appeals to carve out a previously unrecognized cause of action for fraudulent concealment by a professional of a life factor that might adversely affect his performance. Certainly any evidence relevant to Cleveland's claim that Trulock rendered deficient professional services, including...