Fiske v. Soland

• Decision Date: 18 December 1968
• Docket Number: No. 2,CA-CIV,2
• Citation: 448 P.2d 429,8 Ariz.App. 585
• Parties: Cornelius L. FISKE and Natalie Fiske, husband and wife, Appellants, v. Wesley A. SOLAND, Appellee. 614.
• Court: Arizona Court of Appeals

Page 429

448 P.2d 429

8 Ariz.App. 585

Cornelius L. FISKE and Natalie Fiske, husband and wife, Appellants, v. Wesley A. SOLAND, Appellee.

No. 2 CA-CIV 614.

Court of Appeals of Arizona.

Dec. 18, 1968.

Rehearing Denied Jan. 14, 1969.

Review Denied Feb. 18, 1969.

William Messing, Tucson, for appellants.

May, Dees & Newell, by Paul F. Newell, Tucson, for appellee.

MOLLOY, Judge.

This is an appeal by the plaintiffs from an adverse judgment in a malpractice action brought against a surgeon in connection with treatment of a skin cancer. For our consideration, questions are presented as to whether the jury should have been instructed on the doctrine of 'informed consent,' whether the trial court gave proper instructions to the jury on the standard of care required of a practicing physician, whether certain rulings on evidentiary matters were proper and whether the evidence supports the jury's verdict in favor of the surgeon.

The essential facts are as follows. The plaintiff, Cornelius L. Fiske, had been troubled for some months with a festering wart on the index finger of his right hand and went to the defendant-surgeon, on March 31, 1964, on the referral of his family physician. The defendant, for several years, had specialized in the practice of surgery in the Tucson community, with some emphasis upon the treatment of cancer. The examination conducted by the defendant in his office on this first visit caused him to recommend surgical removal of the wart and an area of skin surrounding it, and arrangements were made by the surgeon for the use of the operating room at a local hospital. Prior to this operation, on April 11, 1964, the defendant did not cause a laboratory analysis to be made of the lesion. When it was removed, a biopsy report indicated that the area was infected with squamous cell carcinoma, a type of cancer which affects skin tissue. A skin graft from the plaintiff's thigh was accomplished at the same time as this area was removed and, though the area became infected after the operation, infection was successfully treated by the defendant so that the skin graft was successful. The carcinoma at the site of this surgery was completely removed and, when it subsequently became necessary to surgically amputate the plaintiff's right arm, no further cancer was found at the site of the original lesion.

On a subsequent checkup of the plaintiff, on June 10, 1964, numerous small areas along a vein in the plaintiff's right forearm leading from the index finger were found to be swollen. The defendant-surgeon first diagnosed this condition as being caused by the bacterial infection which had previously been eradicated from the site of the surgery, but, on June 19, a portion of one of these lumps was excised for laboratory analysis and it was disclosed that the lump was caused by cancerous cells which were invading the vascular system of the right arm. This laboratory report was received by the defendant on June 23, and on June 24, the plaintiff was hospitalized at the United States Veterans Hospital at Tucson, where, after a series of tests, his right arm and muscles attached thereto were removed by a Veterans Administration surgeon. There is no question in the medical testimony but what this radical surgery was necessary at this time in order to forestall further spread of the cancer.

The complaint filed sounds in negligence; there are no allegations of lack of consent or a claim for battery. The pretrial order determined the factual issues to be these:

'1. Did the Deft. fail to meet the standard of professional care required in this area?

'a. Did the Deft. fail to perform proper tests prior to the surgery?

'b. Did the Deft. fail to warn the Pltf. of possible consequences of the surgery?

'c. Was the surgery property (sic) performed?

'd. Was the postoperative care properly conducted by the Deft?

'2. Was the Deft. negligent in the second surgery performed in June in any of the above stated manners?

'3. Was there any negligence throughout the procedure in the diagnosis or treatment of the Pltf?

'4. If the Deft. was negligent, what were the proximate results of that negligence, and what are the Pltf's damages?

'5. Was Dr. James A. Cutshaw a licensed physician at the time his deposition was taken and, if not, is that fact admissible and what effect should be given to it?'

The plaintiff contends that issue No. 1(b) raises the issue of 'informed consent' and that the trial court was in error '* * * in taking the doctrine of informed consent away from the jury * * *' Argument of the plaintiff discloses that the particular rulings complained of are those denying requested instructions on the doctrine of 'informed consent.'

The plaintiff points out that, in his testimony, he asserted that the defendant-surgeon did not inform him that he was suspected of having a skin cancer until sometime after the operation of April 11, and that, if he had known of this diagnosis, he would not have consented to this surgery. The testimony of the surgeon is directly contradictory to this assertion, but, in ruling upon the propriety of the denial of instructions, we accept the plaintiff's version at its full worth.

This court decided in Shetter v. Rochelle, 2 Ariz.App. 358, 409 P.2d 74 (1965), opinion modified, rehearing denied, 2 Ariz.App. 607, 411 P.2d 45 (1966), petition for review denied April 12, 1966, that there is a fundamental difference between a battery action, based upon the theory of lack of informed consent, and a malpractice action. We believe the pleadings and the pretrial order clearly place this case in the latter category. The nature of the action is made clear when we examine the plaintiff's claims of damage, contained in both the complaint and in the requested instructions to the jury. These do not seek recovery for the pain and suffering or for any disability caused by the April 11th operation but rather for the loss of the right arm and the disability and suffering caused by this amputation.

If plaintiff was damaged by this April operation, it was not because of the inherent nature of the operation itself, but rather because the operation was unskillfully performed. Plaintiff does not suggest that he was injured by the actual removal of tissue from his index finger nor the graft which was placed over the incised area. The evidence is undisputed that this operation resulted in the removal of cancerous tissue and that the skin graft was successful.

Moreover, as in Shetter, it is most clear from this record that the plaintiff understood the nature of the surgical procedure of April 11, and that he consented thereto. Accordingly, we see no grounds for the giving of the 'informed consent' instructions, which would have injected into this case the law of battery and would have obfuscated the factual issues upon which the jury was required to determine.

Shetter recognizes, 2 Ariz.App. 367, 409 P.2d 74, that, aside from the theory of battery, malpractice may consist of failure to disclose, and that, if injury proximately results from such conduct, recovery may be had. But here the instructions requested enunciated a strict rule that the surgeon was obligated to inform his patient of '* * * all matters within his knowledge affecting the interests of the patient,' and '* * * any hazards of the proposed treatment which are known to the physician.' These instructions go far beyond the duty to inform as declared in Shetter. Moreover, the instructions were inextricably combined with a battery theory. ¹ It is our view that it would have been error to have given them.

The plaintiff contends that the trial court erroneously instructed the jury that the standard expected of the defendant was that of other surgeons in the same community rather than the standard of care in the same or similar localities. The trial court instructed the jury in accordance with the pronouncements contained in the Supreme Court opinion of Boyce v. Brown, 51 Ariz. 416, 421, 77 P.2d 455, 457 (1938), that the standard is that of '* * * medical practice in the community * * *' In ruling upon these contentions, the trial court made the comment that: 'If the law is going to be changed in this state it has to be done by higher courts.' We find ourselves in similar position. McKay v. Industrial Commission, 103 Ariz. 191, 438 P.2d 757 (1968).

In passing, we note there is a trend in appellate decisions to broaden the standard so as to include not only that pertaining in similar communities, but to encompass the standards of the medical practice of the country as a whole. See, e.g., Pederson v. Dumouchel, 72 Wash.Dec.2d 73, 431 P.2d 973 (1967), and cases cited therein. ² It is our view that it is most possible our Supreme Court may wish to modernize the now thirty-year-old rule of Boyce in the light of these decisions, but we doubt that it will consider this case a proper vehicle to do so. This is for the reason that there is no showing in this record that the standards of the medical profession in the Tucson community are any lower, or any different, from those in similar localities or in the country at large. Hence, it is improbable that the plaintiff was prejudiced in this particular case by the limited instruction given by the court, even if erroneous. See Ariz.Const. art. 6, § 27, A.R.S.

The third question attempted to be raised by the plaintiff is as to whether it was error for the court to refuse to give seven different requested instructions. The thread of the argument on appeal is that, by failing to give these instructions, the court neglected to present to the jury any instructions to guide it in connection with its consideration of issue 1(a) of the pretrial order: 'Did the Deft. fail to perform proper tests prior to the surgery?'

Several of the instructions requested by the plaintiff and refused by the court singled out a duty to make a proper diagnosis. In defending the trial court's rulings, the appellee asserts that this...