Doerr v. Movius, 11677
| Decision Date | 05 January 1970 |
| Docket Number | No. 11677,11677 |
| Citation | 463 P.2d 477,154 Mont. 346 |
| Parties | Denille DOERR, by her guardian Thomas E. Doerr, Plaintiff and Appellant, v. Arthur J. MOVIUS, Defendant and Respondent. |
| Court | Montana Supreme Court |
Joseph P. Hennessey, argued, Billings, for appellant.
Anderson, Symmes, Forbes, Peete & Brown, Weymouth D. Symmes, argued, Billings, for respondent.
Defendant in this medical malpractice action was granted a directed verdict at the close of the plaintiff's evidence. Plaintiff's motion for a new trial was denied and this appeal is taken from the denial of that motion and from the directed verdict.
During October 1965, Denille Doerr, plaintiff herein, was taken to the Billings Clinic by her mother to see a pediatrician named Dr. Bruce L. Anderson. The girl was then 8 years old and had developed a small lump on her lower public area. Her mother told Dr. Anderson that the child had fallen from her bicycle and the lump seemed to develop after that accident. Dr. Anderson examined the child, told the mother the lump might be a hernia and referred her to Dr. Arthur J. Movius, defendant herein.
Dr. Movius is a general surgeon associated with the Billings Clinic. His speciality includes abdominal surgery. Dr. Movius examined the child a few days after Dr. Anderson had examined her and finding an irreducible mass just outside the left inguinal ring which looked like a hernia and felt like an extruded hernial sac, he diagnosed a probable left inguinal hernia.
Dr. Movious recommended that the child be operated on to repair the apparent defect. The mother signed the written consent form provided by the hospital and the operation took place on October 27, 1965. During the operation Dr. Movius discovered that the lump on the child's public area was caused by a fatty pad and there was no hernia of any type on the left side. It was not necessary to cut any muscle layers, only the skin was opened. Dr. Movius then asked the surgical nurse to notify the mother that there was no hernia on the left side and to seek the mother's permission for him to operate on the right side of the child to determine if there was a hernia there. The mother gave the surgical nurse the oral consent and Dr. Movius made an incision on the right side, again only penetrating through the skin. He found no evidence of any hernia and closed the incision.
At the trial plaintiff called Dr. Movius as an adverse witness and questioned him about the diagnostic procedures used to discover the existence of different types of hernias. Particular attention was devoted to hernias in small children, and Dr. Movius explained that the smallness of children's body structures and the softness of their tissues make it much more difficult to correctly diagnose a hernia in a child. He also testified that medical texts report 66% of children with a hernia will have one on each side of the abdomen, rather than a single hernia on one side of the absomen only; that occasionally hernia operations on children will determine that the hernia is actually on the side opposite the suspected side.
Dr. Movius admitted that his diagnosis of a probable hernia was wrong and stated he had never seen a fatty pad such as this before. There was no damage to the girl except the two scars on her lower abdomen.
The principal issue in this case is whether the court erred in directing the verdict for the defendant.
Plaintiff contends that a prima facie case was established by a showing of absence of an informed consent on the part of the patient or one acting in her behalf; by a showing of a deviation by the doctor from an established proper medical procedure; and, that either showing is sufficient to establish a prima facie case of negligence.
The general rule on informed consent was set forth by this Court in Negaard v. Estate of Feda, Mont., 446 P.2d 436, 25 St.Rep. 632. The duty to disclose to assure that an informed consent is obtained was recognized and described as a matter of medical judgment. This duty to disclose was limited to those disclosures which a reasonable practitioner would make under similar circumstances. If the doctor obtained an informed consent and proceeded as a competent medical man would in a similar situation, his course of action should not be questioned.
'The gist of the 'informed consent' theory of liability is that a physician is under a duty under some circumstances to warn his patient of known risks of proposed treatment so that the patient will be in a position to make an intelligent decision as to whether...
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Collins v. Itoh, 12204
...the 'informed consent' doctrine recently in two decisions: Negaard v. Estate of Feda, 152 Mont. 47, 446 P.2d 436, and Doerr v. Movius, 154 Mont. 346, 349-350, 463 P.2d 477. In both cases we recognized the same rule. In Doerr, the court 'The general rule on informed consent was set forth by ......
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Howard v. Replogle
...consent are a matter of medical judgment. Collins v. Itoh , 160 Mont. 461, 467-68, 503 P.2d 36, 40 (1972) (citing Doerr v. Movius , 154 Mont. 346, 349, 463 P.2d 477, 478 (1970) ).¶18 At trial, the jury heard competing testimony from expert witnesses regarding financial disclosures in genera......
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Hill v. Squibb & Sons, E. R.
...1088. Montana follows the latter version of the majority rule. Negaard v. Feda (1968), 152 Mont. 47, 446 P.2d 436; Doerr v. Movius (1970), 154 Mont. 346, 463 P.2d 477; Llera v. Wisner (1976), 171 Mont. 254, 557 P.2d 805, 33 St.Rep. The trial court judge in this case was aware of these Monta......
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Martin v. Stratton
...standard and establishing defendant violated the standard. Govin v. Hunter, Wyo., 374 P.2d 421; Nishi v. Hartwell, supra; Doerr v. Movius, 154 Mont. 346, 463 P.2d 477. Other cases indicate disclosure of all material risks is required, material risks being determined by the seriousness of th......