Cross v. Trapp

• Decision Date: 14 July 1982
• Docket Number: No. 15121,15121
• Citation: 294 S.E.2d 446,170 W.Va. 459
• Court: West Virginia Supreme Court
• Parties: Raymond CROSS and Lucy Cross v. D. C. TRAPP, M.D., and Ohio Valley Medical Center, Inc.

Page 446

294 S.E.2d 446

170 W.Va. 459

Raymond CROSS and Lucy Cross v. D. C. TRAPP, M.D., and Ohio Valley Medical Center, Inc.

No. 15121.

Supreme Court of Appeals of West Virginia.

July 14, 1982.

Syllabus by the Court

1. "Except in very extreme cases, a surgeon has no legal right to operate upon a patient without his consent, nor upon a child without the consent of its parent or guardian." Browning v. Hoffman, 90 W.Va. 568, 581, 111 S.E. 492, 497 (1922).

2. A physician has a duty to disclose information to his or her patient in order that the patient may give to the physician an informed consent to a particular medical procedure such as surgery. In the case of surgery, the physician ordinarily should disclose to the patient various considerations including (1) the possibility of the surgery, (2) the risks involved concerning the surgery, (3) alternative methods of treatment, (4) the risks relating to such alternative methods of treatment and (5) the results likely to occur if the patient remains untreated.

3. In evaluating a physician's disclosure of information to his or her patient, relative to whether that patient gave an informed consent to a particular medical procedure such as surgery, this Court hereby adopts the patient need standard, rather than physician disclosure standards based upon national or community medical disclosure practice. Pursuant to the patient need standard, the need of the patient for information material to his or her decision as to method of treatment, such as surgery, is the standard by which the physician's duty to disclose is measured. Under the patient need standard, the disclosure issue is approached from the reasonableness of the physician's disclosure or nondisclosure in terms of what the physician knows or should know to be the patient's informational needs. Therefore, whether a particular medical risk should be disclosed by the physician to the patient under the patient need standard ordinarily depends upon the existence and materiality of such risk with respect to the patient's decision relating to medical treatment.

4. It is recognized under the patient need standard that in certain situations such as an emergency where harm from failure to treat is imminent or where the physical or emotional result of disclosure could jeopardize a patient, disclosure by the physician may not be feasible. However, the burden of going forward with the evidence, pertaining to nondisclosure, rests upon the physician.

5. Although expert medical testimony is not required under the patient need standard to establish the scope of a physician's duty to disclose medical information to his or her patient, expert medical testimony would ordinarily be required to establish certain matters including: (1) the risks involved concerning a particular method of treatment, (2) alternative methods of treatment, (3) the risks relating to such alternative methods of treatment and (4) the results likely to occur if the patient remains untreated.

6. "An instruction which tends to mislead the jury is erroneous and should be refused." Syl. pt. 19, Payne v. Kinder, 147 W.Va. 352, 127 S.E.2d 726 (1962).

7. When a patient asserts that a particular method of medical treatment, such as surgery, was performed by the patient's privately retained physician without the patient's consent, the hospital where that treatment was performed will ordinarily not be held liable to the patient upon the consent issue, where the physician involved was not an agent or employee of the hospital during the period in question.

8. Written general consent to treatment forms, whether submitted to the patient by a privately retained physician or by hospital personnel, which do not specify any particular type of treatment to which the patient might be subjected, are not adequate standing alone to satisfy a physician's duty under the patient need standard to disclose certain information to his or her patient concerning medical treatment. Furthermore, whether a written consent to treatment form signed by a patient, which form specifies a particular method of treatment and discloses other relevant medical information to the patient, satisfies the disclosure requirements of the patient need standard depends upon the facts and circumstances of each case.

Bogarad & Robertson, Martin S. Bogarad and William R. Kiefer, Weirton, for appellants.

O'Brien, Cassidy & Gallagher, Frank A. O'Brien, Jr. and Patrick Cassidy, Galbraith, Seibert, Kasserman, Farnsworth, Gillenwater & Glauser and Elba Gillenwater, Jr., Wheeling, for appellees.

McHUGH, Justice:

In this action we are asked to consider the requirements of a consent given by a patient prior to surgery. On a broader scale, we are asked to review a physician's duty to disclose to his patient methods of treatment, including surgery, and the risks incidental to such methods of treatment.

Specifically, this action is before this Court upon an appeal by the appellants, Raymond Cross and Lucy Cross, from judgments entered in the Circuit Court of Ohio County, West Virginia, in favor of the appellees, Dr. D. C. Trapp and Ohio Valley Medical Center, Inc. The action of the appellants, filed in circuit court in 1976, asserted that surgery upon the appellant, Raymond Cross, was performed without proper consent. This Court has before it the petition for appeal, all matters of record and the briefs and argument of counsel.

In September, 1974, Raymond Cross (hereinafter "appellant"), complaining of pain in his lower abdomen and bladder region, was referred by a physician to the appellee, Dr. Trapp, a urologist.

On October 8, 1974, the appellant was examined in the office of Dr. Trapp. The appellant's wife was present at that time although she did not witness the actual examination of her husband. The complaints of the appellant included soreness in the lower abdomen and groin areas and problems with urination. Concluding that the appellant's trouble was in the prostate gland, Dr. Trapp suggested that the appellant be hospitalized.

On October 23, 1974, the appellant was admitted to Ohio Valley Medical Center. At the time of that admission to the hospital the appellant signed a form indicating that the appellant consented to diagnostic treatment and medical treament including surgery. As a result of the death of his father, the appellant left the hospital. On October 28, 1974, the appellant was readmitted to Ohio Valley Medical Center. At that time, the appellant signed a general consent form for medical treatment similar to the form he signed on October 23, 1974. During the period in question, no written consent was ever executed by the appellant reflecting that a specific type of treatment or surgery was to be performed.

On October 29, 1974, while the appellant was under anesthesia, Dr. Trapp conducted a cystoscopic examination of the appellant's urinary tract. ¹ As a result of that examination, Dr. Trapp during the procedure performed upon the appellant a transurethral resection of the prostate gland. ²

The appellant testified that he was displeased that the surgery had been performed. Moreover, subsequent to the surgery the appellant continued to have problems with urination. Furthermore, subsequent to the surgery, the appellant allegedly became impotent.

On October 22, 1976, the appellants, Raymond Cross and Lucy Cross, filed an action against the appellees in the Circuit Court of Ohio County, West Virginia. In their complaint, the appellants asserted that the operation of October 29, 1974, was performed without proper consent and, further, was performed in a negligent manner. Trial began in the circuit court on May 27, 1980. At the close of the appellants' case, the circuit court directed a verdict in favor of the appellee, Ohio Valley Medical Center, and the action was submitted to the jury upon the appellants' theory of lack of consent for the surgery, rather than upon negligence. The jury found in favor of the appellee, Dr. Trapp. By order entered on October 14, 1980, the post-trial motions of the appellants were denied.

In their appeal to this Court, the appellants ask that judgment be entered in their favor and against the appellees. In the alternative, the appellants request a new trial.

I

Certainly, surgery cannot be performed by a physician without the consent of his patient. Annot. 89 A.L.R.3d 32 (1979); Annot. 88 A.L.R.3d 1008 (1978). As stated in Vol. 5A Personal Injury, Physicians and Surgeons § 1.02(1) (Matthew Bender 1980): "It is a recognized and accepted general rule that the consent of a patient is a prerequisite to treatment or to a surgical operation...." See also Landon, Pollock's Law of Torts (1939) at 124. Moreover, as stated in Vol. 13 Va.L.Rev. 505 (1927): "... [T]he general rule seems to be that a surgeon owes to his patient the duty not to operate upon the patient without his consent.... This duty is based upon the right of every adult human being, of sound mind, to determine what shall be done with his own body." (citations omitted). West Virginia has adopted the rule requiring a physician to secure the consent of his patient prior to the performance of an operation. As this Court stated in Browning v. Hoffman, 90 W.Va. 568, 581, 111 S.E. 492, 497 (1922): "Except in very extreme cases, a surgeon has no legal right to operate upon a patient without his consent, nor upon a child without the consent of its parent or guardian." (citations omitted). ³

However, the problem in this area of the law is not simply whether the patient expressed his consent to medical treatment. Rather, in actions such as the one before this Court, the problem is whether the patient's consent to the procedure was an informed consent. Therefore, in determining the validity of a patient's consent to surgery, for example, courts have considered physician's statements to patients involving such matters as the possibility of surgery, the risks involved, alternative methods of treatment,...