Crain v. Allison, 81-20.

• Decision Date: 01 April 1982
• Docket Number: No. 81-20.,81-20.
• Citation: 443 A.2d 558
• Parties: Darrell C. CRAIN, et al., Appellants, v. Liliane ALLISON, et al., Appellees.
• Court: D.C. Court of Appeals

443 A.2d 558

Darrell C. CRAIN, et al., Appellants, v. Liliane ALLISON, et al., Appellees.

No. 81-20.

District of Columbia Court of Appeals.

Argued October 29, 1981.

Decided April 1, 1982.

COPYRIGHT MATERIAL OMITTED

Hugh E. Donovan, Silver Spring, Md., for appellants.

James C. McKay, Washington, D. C., with whom Jonathon R. Yarowsky, Washington, D. C., was on brief, for appellees.

Before KELLY, KERN and BELSON, Associate Judges.

KELLY, Associate Judge:

In this appeal from a judgment entered after a jury verdict in favor of Liliane and General Royal B. Allison, appellees, and against Dr. Darrell C. Crain and Arthritis Rehabilitation Center, appellants, it is alleged that the trial court erred in (1) denying appellants' motion for directed verdict on the issue of informed consent, (2) admitting a letter into evidence in violation of the hearsay rule and policies against admission of settlement negotiations, and (3) refusing to allow appellants' counsel to impeach one of appellants' own witnesses.¹ We affirm.

Dr. Crain is one of six physicians who specialize in rheumatology under the name Arthritis Rehabilitation Center. In January 1977, appellee, Liliane Allison, came under the care of appellants for the treatment of swollen and painful fingers of her right hand. In March 1977, Dr. Crain diagnosed Mrs. Allison's condition as osteoarthritis and started her on a conservative course of treatment. Next, Dr. Crain began a series of injections of Aristospan (cortisone) into the affected joints to reduce the inflammation. The right index finger was injected in the distal interphalangeal joint on four occasions and in the proximal interphalangeal joint on five occasions.² Dr. Crain agreed that cortisone should never be injected into a joint in the presence of infection because it may reduce the body's resistance to infection and the ability to localize the infection; before such an injection, a diagnosis must be established and specific infectious arthritis must be ruled out. Both the Aristospan package insert and the PHYSICIAN'S DESK REFERENCE warn physicians of the problems of infection associated with the use of cortisone injections. Dr. Crain testified that he was aware of the risks and that he warned Mrs. Allison of the remote possibility of infection before treating her. Dr. Crain prescribed penicillin after each injection. He testified that this procedure indicates "that the patient had been told that there could be some possibility of infection and that this was given as a prophylactic measure." However, Mrs. Allison testified that she was not warned of the risk of infection and that had she been warned, she would not have permitted the cortisone injections.

General Allison testified that on June 12, Mrs. Allison's right index finger was painful, swollen, inflamed, and appeared as if pus was under the surface of the skin. On that date, Dr. Crain opened the area around a cyst which had developed and injected cortisone into the joints without testing for infection. By June 15, the finger was "definitely worse." Dr. Crain did not believe it was infected but felt that there "was a good possibility that there was some possibility that it might" be infected. He testified that it is difficult to tell when a finger is infected or only inflamed from arthritis. Mrs. Allison was treated by Dr. Crain on July 11 and July 28, when the cyst had reappeared. Dr. Crain testified that the cyst was unrelated to the cortisone injections. Mrs. Allison thereafter sought the services of another physician, Dr. Litton, who removed the cyst on August 9, 1978.

General Allison wrote to Dr. Crain on October 18, 1978, requesting reimbursement of medical expenses resulting from Mrs. Allison's infection. The bills were paid after Dr. Crain submitted them to his insurance company; however, it is unclear whether Dr. Crain's or General Allison's insurance company paid.

In November 1978, Dr. Thomas R. Shepler, a third physician and unrelated to appellants, performed exploratory surgery and fused the distal interphalangeal joint of Mrs. Allison's right index finger. Mrs. Allison recovered and appellees' lives returned to normal as of the spring of 1979.

I

It is not disputed that appellants had a duty to inform Mrs. Allison of the risks associated with treatment of her condition so that her consent to treatment would be an informed one. The elements of causation and damages are not questioned on this appeal. Whether appellants breached their duty of care is at issue.

The duty of a physician to inform the patient of the consequences of a proposed treatment stems from the right of every competent adult human being to determine what shall be done with his own body. In re Boyd, D.C.App., 403 A.2d 744, 748 n. 8 (1979); Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129, 105 N.E. 92, 93 (1914). Because most people are ignorant in the medical sciences, they rely heavily on the knowledge and advice of their physicians. See Cobbs v. Grant, 8 Ca1.3d 229, 104 Cal.Rptr. 505, 513, 502 P.2d 1, 9 (1972). However, the ultimate decision to undergo or to reject a proposed treatment lies with the patient. Sard v. Hardy, 281 Md. 432, 443, 379 A.2d 1014, 1021 (1977); Cobbs v. Grant, supra 104 Cal.Rptr. at 514, 502 P.2d at 10. In order to make an intelligent and informed choice, a patient must first obtain the facts necessary to make the decision from the physician. See Cobbs v. Grant, supra 104 Cal.Rptr. at 515, 502 P.2d at 11. There is a dichotomy among the jurisdictions, however, as to the proper scope of the physician's duty to disclose.³ Some jurisdictions maintain a professional standard of care in which physicians are bound to disclose only information which is commonly disclosed by physicians practicing in the locality.⁴ This rule makes it difficult for plaintiffs to establish a prima facie case because of the practical difficulties in getting a member of the medical fraternity to breach the "community of silence" and testify against a colleague. Wilkinson v. Vesey, 110 R.I. 606, 623, 295 A.2d 676, 687 (1972), citing Cooper v. Roberts, 220 Pa.Super.Ct. 260, 286 A.2d 647 (1971); see Sard v. Hardy, supra, 281 Md. at 442-43, 379 A.2d at 1021-22. We prefer the more modern rule in which the standard is established in law and the scope of mandatory disclosure is measured by the informational needs of the patient.⁵ Although we are not bound by the Circuit Court's opinion in 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),⁶ we agree with the decision and its rationale. We hold, therefore, that the standard for measuring performance of the physician's duty to disclose is conduct which is reasonable under the circumstances.⁷

The test for mandatory disclosure of information on treatment of the patient's condition is whether a reasonable person in what the physician knows or should know to be the patient's position would consider the information material to his decision.⁸ The information is material if the reasonable person in what the physician knows or should know to be the patient's position would be likely to attach significance to the risks in deciding to accept or forego the proposed treatment. Small v. Gifford Memorial Hospital, 133 Vt. 552, 557, 349 A.2d 703, 706 (1975); Canterbury v. Spence, supra 150 U.S.App.D.C. at 278, 464 F.2d at 787. "If, but only if, the fact-finder can say that the physician's communication was unreasonably inadequate is an imposition of liability . . . justified." Canterbury v. Spence, supra 150 U.S.App.D.C. at 278, 464 F.2d at 787. Thus, not all risks need be disclosed; only material risks must be disclosed. Sard v. Hardy, supra 281 Md. at 444, 379 A.2d at 1022; Wilkinson v. Vesey, supra 110 R.I. at 627, 295 A.2d at 689. Additionally, a physician need not advise concerning risks of which the patient already has actual knowledge. Sard v. Hardy, supra 281 Md. at 445, 379 A.2d at 1022; Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis.2d 1, 13, 227 N.W.2d 647, 653 (1975); Wilkinson v. Vesey, supra 110 R.I. at 627, 295 A.2d at 689; Canterbury v. Spence, supra 150 U.S.App.D.C. at 279, 464 F.2d at 788. Because different patients have varying needs for information, the scope of disclosure will vary even among patients with the same condition.⁹ However, at a minimum, a physician must disclose the nature of the condition, the nature of the proposed treatment, any alternate treatment procedures, and the nature and degree of risks and benefits inherent in undergoing and in abstaining from the proposed treatment.¹⁰ Consent obtained without divulging this information is ineffective to grant the physician permission to institute the proposed treatment. Scott v. Bradford, 606 P.2d 554, 556-57 (Okl.1979). A physician is relieved of his duty to inform his patient (1) in an emergency situation when the patient is incapable of consent, no relative or guardian can be obtained to give the necessary consent to the treatment, and imminent harm from non-treatment outweighs any harm threatened by the proposed treatment; and (2) when the physician reasonably believes that the patient's reaction to the risk information will pose a threat to the patient's well being.¹¹

Appellant Crain contends that in this case the issue of the reasonableness of his disclosure should not have been submitted to the jury.

On review of a [motion for a] directed verdict, the evidence must be viewed most favorably to the party against whom the motion is made, and that party must be given the benefit of all reasonable inferences from the evidence. . . . "With the evidence so viewed, a verdict may be directed only when the evidence is so clear that reasonable men could reach but one conclusion." [Corley v. BP Oil Corp., D.C.App., 402 A.2d 1258, 1263 (1979), quoting Bauman v. Sragow, D.C. App., 308 A.2d 243, 244 (1973); citations omitted.]

Although the general rule is that juries may...