Fuller v. Starnes, 79-334

• Decision Date: 21 April 1980
• Docket Number: No. 79-334,79-334
• Citation: 268 Ark. 476,597 S.W.2d 88
• Parties: Faye FULLER, Administratrix of the Estate of Maggie Long, Deceased, Appellant, v. C. W. STARNES, M. D., Appellee.
• Court: Arkansas Supreme Court

Page 88

597 S.W.2d 88

268 Ark. 476

Faye FULLER, Administratrix of the Estate of Maggie Long Deceased, Appellant, v. C. W. STARNES, M. D., Appellee.

No. 79-334.

Supreme Court of Arkansas.

April 21, 1980.

Parker, Henry & Walden, Jonesboro, for appellant.

Barrett, Wheatley, Smith & Deacon, Jonesboro, for appellee.

MAYS, Justice.

This appeal is from a judgment entered by the trial judge in a medical malpractice action after directing a verdict in favor of the defendant, Dr. C. W. Starnes, at the conclusion of plaintiff's case in chief. Although plaintiff alleged that Dr. Starnes was negligent in prescribing Demerol to relieve pain of her late mother without disclosing adequate information about the perils of its use, plaintiff did not produce expert medical evidence to establish a disclosure standard for the jury to assess the reasonableness of Dr. Starnes' conduct. The trial judge concluded that this evidentiary omission was fatal to plaintiff's case. On appeal plaintiff argues that, even without expert testimony concerning any professional disclosure standard, sufficient evidence regarding medical facts which Dr. Starnes did not disclose were presented for the jury to assess the reasonableness of his conduct, especially if the court adopts a standard measured by the patient's informational needs.

The facts are essentially undisputed. Plaintiff, Faye Fuller, took her 86 year old mother, Maggie Long, to the emergency room at St. Bernard's Regional Medical Center in Jonesboro, Arkansas, at approximately 2:10 a. m. on September 25, 1976, after her mother complained of sharp pains in her left side and her temperature reached 102o . Mrs. Long was seen by Dr. C. W. Starnes, a full time physician at the hospital who, after concluding that she had pleurisy, indicated that he would give her Penicillin and something for her pain. Although Dr. Starnes asked if Mrs. Long was allergic to any medication, he did not tell her or her daughter what he was going to give her for pain. After Procaine Penicillin was administered to Mrs. Long for her pleuritic condition, she was given 25 mg. of Demerol with 25 mg. of Phenegran in the hip for the relief of pain. Dr. Starnes had at first prescribed 50 mg. of both Demerol and Phenegran but reduced the dosage before the injection occurred.

Demerol is a narcotic analgesic given to relieve pain and Phenegran is given with Demerol to decrease any incidence of nausea which is sometimes associated with Demerol. When Demerol is given along with Phenegran the activity of Demerol may be increased by approximately 50%, so that an injection of 25 mg. of Demerol and Phenegran would equal, in effect, 37.5 mg. of Demerol. The usual adult dosage of Demerol ranges from 50 to 150 mg.

Although Dr. Starnes advised Mrs. Long to wait in the emergency room to see if she might have a reaction to the medication, he did not inform Mrs. Long or Mrs. Fuller of risks known to be associated with the use of Demerol such as nausea, vomiting, respiratory depression and decreased blood pressure.

Approximately 20 minutes after the injections, Mrs. Long began having difficulty breathing and eventually stopped breathing. Emergency procedures revived Mrs. Long, but she remained in St. Bernard's coronary care unit for 17 days after which she was discharged with permanent brain damage. Some two years later she died, apparently from natural causes, on October 18, 1978.

Although the existence of a physician's duty to warn a patient of hazards of future medical treatment is generally recognized, a wide divergence of views has developed concerning the appropriate standard for measuring the scope of the duty. The minority view is that the duty of a physician to disclose is measured by the patient's need for information material to the patient's right to decide whether to accept or reject the proposed medical treatment. See, e. g. Canterbury v. Spence, 464 F.2d 772 (D.C.App.1972) cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1973); Cobbs v. Grant, 8 Cal.App.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1 (1972); Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676 (1972). Emphasizing the right of the patient to control what happens to his body, the minority view is undergirded by the proposition that what a patient should be told about future medical treatment is primarily a human judgment. The majority view is that the duty of a physician to disclose is measured by the customary disclosure practices of physicians in the community or in a similar community. See, e. g., Govin v. Hunter, 374 P.2d 421 (Wyo.1962); Green v. Hussey, 127 Ill.App.2d 174, 262 N.E.2d 156 (1970). This view emphasizes the interest of the medical profession to be relatively free from vexatious and costly litigation and holds that what a patient should be told about future medical treatment is primarily a medical decision. Relying on the minority view, plaintiff argues that since Dr. Starnes admittedly did not disclose to Mrs. Long certain known risks associated with the use of Demerol, a jury, applying a reasonable patient standard, could properly conclude that Dr. Starnes breached his duty to disclose material information to the patient, irrespective of any medical testimony concerning professional medical standards. Even if we were to adopt this view, we would still find great difficulty reversing the trial judge on the basis of the proof in this case. Although the plaintiff established certain known risks associated with the use of Demerol, plaintiff presented no medical evidence concerning their incidence of occurrence or the existence and feasibility of alternative treatment. Such evidence is crucial to the jury's determination of the materiality of the defendant's failure to disclose. Napier v. Northrum, 264 Ark. 406, 572 S.W.2d 153 (1978). Therefore, even under the minority view, medical evidence may be necessary for a jury to appreciate the significance of what was not disclosed and to understand the nature of its responsibility.

Although the plaintiff would probably not prevail if the minority view were adopted, we feel obliged to adopt the majority view and, therefore, hold that the physician's duty to disclose risks is measured by the customary practice of physicians in the community in which he practices or in a similar community.

We are persuaded by a recent legislative expression which adopts the majority view, effective April 12, 1979: Act 709 of 1979. We perceive no valid purpose in adopting a policy inconsistent with that recently expressed by the legislature to control the facts in this case even though they developed before the legislature formally adopted a physician's disclosure standard measured by the customary practices of the community physicians. As the trial judge properly recognized, this disclosure standard always requires expert medical testimony for the jury to determine whether a physician's failure to disclose constitutes a breach of his duty to disclose.

Affirmed.

FOGLEMAN, C. J., concurs.

FOGLEMAN, Chief Justice, concurring.

I respectfully concur in the affirmance in this case, but for an entirely different reason from that given by the majority.

I think the trial court properly excluded the proffered testimony of the two daughters of Maggie Long in response to the following question:

Knowing your mother as well as a daughter could know her, do you think your mother in her right mind would have consented had she known the risks involved with Demerol?

A proffer was made to the effect that each would have answered that,...