Bly v. Rhoads

Citation222 S.E.2d 783,216 Va. 645
Decision Date05 March 1976
Docket NumberNo. 741108,741108
PartiesBetty J. BLY v. John C. RHOADS. Record
CourtSupreme Court of Virginia

Earl H. Davis, Marden G. Dixon, Washington, D.C. (Jack H. Olender, Washington, D.C., on brief), for plaintiff in error.

Norman F. Slenker, Arlington (Slenker, Brandt, Jennings & O'Neal, Arlington, on brief), for defendant in error.

James A. Eichner, Richmond, for Ass'n of Trial Lawyers of America, amicus curiae.

Before I'ANSON, C.J., and CARRICO, HARRISON, COCHRAN, HARMAN, POFF and COMPTON, JJ.

CARRICO, Justice.

In this medical malpractice case, the plaintiff, Betty J. Bly, sought damages from the defendant, Dr. John C. Rhoads, for personal injuries allegedly resulting from the defendant's negligence (1) in failing to inform the plaintiff of the 'possible risk, complications, or dangers' of a hysterectomy he performed upon her, and (2) in failing to 'conform to the usual and customary standards of medical care' in performance of the operation. At the conclusion of the plaintiff's case, the trial court struck her evidence and entered summary judgment in favor of the defendant.

Although the plaintiff originally assigned numerous errors, we awarded a writ of error limited to consideration of the following questions:

I. Is the expert testimony of a physician necessary to prove the requirements for liability under the informed consent doctrine?

II. Should the medical malpractice of a specialist be determined by a national standard rather than a 'same or similar community' standard?

III. Are the medical staff by-laws and accreditation rules of a hospital admissible in evidence in a malpractice action against a physician-member of the staff?

Because these questions are purely legal in nature, a detailed recital of the evidence is unnecessary. For approximately eight years before the operation in question, the plaintiff had suffered from various female disorders, for which she had received treatment of one kind or another from a number of physicians and at different institutions. In April, 1970, she was referred by a general practitioner to the defendant, a specialist in obstetrics and gynecology practicing in Manassas, Prince William County.

The plaintiff's chief complaint was of abdominal pain, which the defendant diagnosed as caused by either pelvic inflammatory disease or endometriosis (disease involving the lining of the uterus). When, after conservative treatment, the complaint continued for several months, the defendant advised the plaintiff that a laparotomy (exploratory surgery) should be performed with the possibility that 'a hysterectomy would have to be carried out at (the same) time.' The plaintiff signed a form consenting to 'Pelvic laparotomy, possible (complete) Hysterectomy.' On October 27, 1970, the plaintiff entered Prince William County Hospital, and the defendant performed surgery on her the following day. In the operation, the plaintiff's uterus and left tube and ovary were removed.

Following the surgery, the plaintiff developed complications. Tests revealed that her ureter (the tube from the kidney to the bladder) was blocked. Correction of the problem required further hospitalization and surgery.

I.

At trial, the court ruled that the plaintiff was required to produce expert testimony to establish liability under the informed consent doctrine. The plaintiff claims this was error.

The plaintiff contends that the doctrine of informed consent 'requires that before a patient's consent to treatment is effective, the patient must have prior knowledge of the hazards and dangers that might be expected and the chances for favorable and unfavorable results.' The objective of the doctrine, the plaintiff asserts, 'is to insure the patient's right to self-determination by requiring that he have access to all knowledge necessary for him to give an intelligent and informed consent based on a rational examination of the available options.' Her consent was not informed and therefore ineffective, the plaintiff says, because the defendant'failed to advise her that there were alternatives to the surgery' and because 'the risks of hysterectomy were never explained' to her.

The plaintiff urges us to 'adopt the modern trend in informed consent law, I.e., that the testimony of a physician is unnecessary to prove liability.' Pursuant to this modern trend, the plaintiff asserts, a physician is 'bound by a direct legal obligation' to disclose 'whatever information is material to the patient's decision;' and it is for the patient, not the physcician, to decide what is 'of importance . . . to permit the patient to make a decision.' The standard of disclosure, therefore, the plaintiff continues, is determined by 'the patient's need' to know and not by the 'standards of the medical community.' Thus, the plaintiff concludes, expert testimony is not necessary to establish lack of informed consent, but it may be established by lay testimony.

Alternatively, the plaintiff argues that even if we do not adopt the 'legal obligation' standard, her failure to produce expert testimony on the issue of informed consent was not fatal to her case because the record otherwise shows that she 'was never properly informed and her consent was not properly obtained for the procedure performed.' In limiting the writ of error awarded in this case, however, we eliminated from consideration the plaintiff's alternative argument. We will consider, therefore, only the legal question presented by the writ as limited, Viz., whether expert testimony is necessary to establish liability under the informed consent doctrine.

The doctrine of informed consent or, as it should more correctly be called, the rule requiring physicians to disclose to patients the alternatives to and risks of a particular treatment, is not new to this court. In Hunter v. Burroughs, 123 Va. 113, 133--34, 96 S.E. 360, 366--67 (1918), we recognized that 'it is the duty of a physician in the exercise of ordinary care to warn a patient of the danger of possible bad consequences of using a remedy' but that the failure to warn 'is not Per se an act of negligence.' Thus, while the law imposes a general duty to warn, a claimant in a malpractice action based upon negligence in failing to warn must prove the existence and extent of the duty in his particular case by a preponderance of evidence. But whether expert testimony is necessary to establish a breach of duty to warn is a question of first impression for this court.

In resolving this question, the decision of the United States District Court for the Eastern District of Virginia in Dietze v. King, 184 F.Supp. 944 (1960), is helpful. There, in a medical malpractice action involving Virginia law, Judge Hoffman stated:

'The physician owes a duty to his patient to make reasonable disclosure of all significant facts under the circumstances of the then situation. This duty is, however, limited to those disclosures which a reasonable medical practitioner would make under the same or similar circumstances, and the failure to disclose in all instances does not necessarily suggest a neglect of duty.' 184 F.Supp. at 949.

This language clearly requires expert testimony to establish in what 'instances' the duty to disclose arises and what disclosures 'a reasonable medical practitioner would make under the same or similar circumstances.' In other words, Judge Hoffman's holding requires expert testimony to establish in a particular case the existence and extent of the physician's duty to disclose information to his patient. If we adopt this requirement, the Virginia rule would comport with what we perceive to be the majority view in this country. See Annot., 52 A.L.R.3d 1084 (1973).

Before deciding, however, what rule to adopt, we must give due consideration to the plaintiff's strong urging that we embrace what she calls 'the modern trend in informed consent law.' This trend, the plaintiff asserts, envisions establishment of a rule permitting proof by non-expert testimony of the existence and extent of a physician's duty to disclose information to his patient.

The 'landmark case' in the 'modern trend in informed consent law,' the plaintiff says, is Canterbury v. Spence, 150 U.S.App.D.C. 263, 464 F.2d 772, Cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972). Although Canterbury holds that existence of the physician's duty to disclose arises from legal obligation, not from customary medical practice, and that the extent of the disclosure must be measured by 'the patient's need' to know, the decision does not have the sweeping effect the plaintiff claims. With respect to the use of lay testimony, the case does establish that:

'Lay witness testimony can competently establish a physician's failure to disclose particular risk information, the patient's lack of knowledge of the risk, and the adverse consequences following the treatment. Experts are unnecessary to a showing of the materiality of a risk to a patient's decision on treatment, or to the reasonably, expectable effect of risk disclosure on the decision.' 150 U.S.App.D.C. at 283, 464 F.2d at 792 (footnotes omitted).

Immediately before making this statement, however, the Canterbury court expressed the following opinion with respect to informed consent cases:

'There are obviously important roles for medical testimony in such cases, and some roles which only medical evidence can fill. Experts are ordinarily indispensible to identify and elucidate for the factfinder the risks of therapy and the consequences of leaving existing maladies untreated. They are normally needed on issues as to the cause of any injury or disability suffered by the patient and where privileges are asserted, as to the existence of any emergency claimed and the nature and seriousness of any impact upon the patient from risk-disclosure. Save for relative infrequent instances where questions of this type are resolvable wholly within the realm of ordinary...

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