Gorab v. Zook

• Court: Colorado Supreme Court
• Writing for the Court: SCOTT
• Citation: Gorab v. Zook, 943 P.2d 423 (Colo. 1997)
• Decision Date: 30 June 1997
• Docket Number: 96SC90
• Parties: 21 Colorado Journal 933 Lawrence N. GORAB, M.D., Petitioner, v. Daniel C. ZOOK, Respondent.

Page 423

943 P.2d 423

21 Colorado Journal 933

Lawrence N. GORAB, M.D., Petitioner, v. Daniel C. ZOOK, Respondent.

No. 96SC90.

Supreme Court of Colorado En Banc.

June 30, 1997.

Rehearing Denied Sept. 8, 1997.

Kennedy & Christopher, P.C., Elizabeth A. Starrs, John R. Mann, Denver, for Petitioner.

Daniel C. Zook, Colorado Springs, Pro Se.

Justice SCOTT delivered the Opinion of the Court.

We granted certiorari to review the judgment of the court of appeals in Zook v. Gorab, No. 93CA0886, slip op. (Colo.App. Sept. 28, 1995) (not selected for official publication). ¹ In Zook v. Gorab, the court of appeals reversed the trial court's ruling granting a directed verdict for a physician on a claim for lack of informed consent in a medical malpractice action. Because we conclude that the plaintiff did not produce sufficient evidence by which a jury might conclude that the physician's failure to inform fell below the medical community's standard of care, we reverse the judgment of the court of appeals.

I.

In May 1987, petitioner, Lawrence N. Gorab, M.D. (Dr. Gorab), treated respondent, Daniel C. Zook (Mr. Zook), for prostatitis, a condition caused by the inflammation of the prostate gland. Dr. Gorab prescribed a sulfa antibiotic drug known commercially as Septra, which cured Mr. Zook's condition almost immediately. However, during the time he was taking the drug, Mr. Zook experienced fevers, chills, fatigue, and muscle aches. On June 1, 1987, several days after Mr. Zook stopped taking the drug, he experienced a spell resembling a grand mal seizure, which Mr. Zook alleges was caused by an adverse reaction to Septra.

The parties dispute certain facts in the case. For example, Dr. Gorab testified that when he prescribed Septra for Mr. Zook's prostatitis on the initial visit of May 15, 1987, he informed Mr. Zook of the "usual risks and precautions" of the drug, including the risk of fever, rash, headaches, nausea, kidney stones, and hepatitis. In contrast, Mr. Zook denies that Dr. Gorab informed him about any risks other than nausea and kidney stones. Both courts below found and the parties agree, however, that Dr. Gorab did not warn Mr. Zook about the possibility of seizures from the use of Septra.

In addition, there is conflicting testimony regarding when Mr. Zook informed Dr. Gorab that he was experiencing adverse side effects from the drug. Mr. Zook claims that he and/or his wife told Dr. Gorab that he was experiencing flu-like symptoms some time between his initial visit on May 15, 1987, and his second visit on May 22. Mr. Zook further claims that he tried unsuccessfully to contact Dr. Gorab on May 23, 24, or 25, and that he told Dr. Gorab on May 26 that he had a body temperature of 102 degrees.

Dr. Gorab, on the other hand, claims that he noted a full respiratory infection during Mr. Zook's initial visit on May 15 and that he did not have contact with either Mr. Zook or his wife between May 15 and May 22. Additionally, Dr. Gorab asserts that his examination of Mr. Zook on May 22 indicated that he was handling the medication well and was not experiencing any adverse reactions. Dr. Gorab also denied that Mr. Zook contacted him between May 22 and May 25. Rather, Dr. Gorab claims that his next contact with Mr. Zook was on May 26, when he indicated he had various flu-like symptoms.

Mr. Zook filed this medical malpractice action, claiming that Dr. Gorab was negligent in failing to advise him to stop taking Septra after he began having an adverse reaction. Mr. Zook also argued at trial that Dr. Gorab had not properly obtained his informed consent ² before administering the Septra because he had not informed Mr. Zook of the possibility of seizures. ³ Mr. Zook's informed consent claim also alluded to Dr. Gorab's failure to inform him of the possible risks of continuing to take Septra after Dr. Gorab learned of Mr. Zook's flu-like symptoms.

At trial, Mr. Zook's expert witness, Stanley M. Phillips, M.D. (Dr. Phillips), testified that, in his opinion, Dr. Gorab had not met the requisite standard of care in his treatment of Mr. Zook and was therefore negligent. However, Dr. Phillips did not testify that Dr. Gorab was required under the relevant standards of the medical community to inform Mr. Zook of the risk of seizure before prescribing the drug. In contrast, Dr. Gorab's expert witness, Richard Augspurger, M.D. (Dr. Augspurger), testified that the risk of seizure from Septra was insubstantial and, therefore, under the applicable standards of the medical community, Dr. Gorab was not required to inform Mr. Zook of that risk before prescribing the drug. ⁴

After the close of the evidence at trial, Dr. Gorab moved for a directed verdict on the issue of informed consent, arguing that Mr. Zook had failed to rebut the expert testimony that Dr. Gorab had properly obtained Mr. Zook's informed consent before prescribing Septra. The trial court directed a verdict for Dr. Gorab on the informed consent claim, ruling that he had met the necessary standard of care despite not disclosing the risk of seizure before prescribing the medication. The court then submitted the general negligence claim to the jury and the jury returned a verdict in favor of Dr. Gorab.

Mr. Zook appealed and the court of appeals reversed the trial court's directed verdict. The court of appeals held that the conflict between the parties' version of events relieved Mr. Zook of his burden of presenting expert testimony to rebut Dr. Gorab's evidence that, under the standards of the medical community, he was not required to disclose the risk of seizure associated with Septra. See Zook, slip op. at 4. Additionally, the court of appeals determined that "the factual issues concerning [Mr. Zook's] lack of informed consent claim were inextricably interwoven with those concerning his negligence claim." Id. The court therefore ordered a new trial for both the informed consent claim and the negligence claim.

II.

Dr. Gorab argues that the court of appeals erred in reversing the directed verdict based on the informed consent claim because Mr. Zook failed to meet his burden of rebuttal under that claim. Moreover, Dr. Gorab asserts that, by so holding, the court of appeals implicitly and erroneously concluded that a physician has a continuous duty to inform a patient of possible side effects during the administration of medication. We agree.

A.

In ruling on a motion for a directed verdict, a trial court must view the evidence and inferences in the light most favorable to the party against whom the motion is directed. See Bloskas v. Murray, 646 P.2d 907, 912 (Colo.1982). A motion for directed verdict should not be granted unless the evidence compels the conclusion that a reasonable factfinder could not disagree and that no evidence or inference has been presented at trial upon which a verdict against the moving party could be sustained. See Fair v. Red Lion Inn, 943 P.2d 431, 436-437 (Colo.1997).

Under our precedent, a general claim for negligence in medical treatment arises when a physician's care falls below the degree of knowledge, skill, and care used by other physicians practicing the same specialty. See Bloskas, 646 P.2d at 914. Colorado Jury Instruction 15:2 states that "[a] physician is negligent when the physician does an act which a reasonably careful physician would not do or fails to do an act which a reasonably careful physician would do." CJI-Civ.3d 15:2. For example, as pertinent here, a physician may be liable for negligence if a particular medication is not discontinued after the patient complains of adverse effects and the medical community's standard of care would require that a physician discontinue that treatment. See generally Bowman v. Songer, 820 P.2d 1110 (Colo.1991); Melville v. Southward, 791 P.2d 383 (Colo.1990).

In contrast, a claim for negligence based on lack of informed consent is a separate claim, based on the information communicated by a physician to a patient before a particular procedure or treatment is commenced. See, e.g., Bloskas, 646 P.2d at 912; Mallett v. Pirkey, 171 Colo. 271, 282, 466 P.2d 466, 471 (1970). Colorado Jury Instruction 15:15 provides that "[i]n order for the plaintiff to recover from the defendant on [a] claim of negligence based on lack of informed consent ... the defendant [must have] negligently failed to obtain the plaintiff's informed consent before [the medical treatment]." CJI-Civ.3d 15:15 (emphasis added). Similarly, Colorado Jury Instruction 15:16 provides that "[b]efore a physician [treats] ... a patient, the physician must obtain the informed consent, whether express or implied, from the patient." CJI-Civ.3d 15:16 (emphasis added).

Although it is unrealistic to require that a physician advise his or her patient of all conceivable risks of a particular procedure or treatment, see Stauffer v. Karabin, 30 Colo.App. 357, 363-64, 492 P.2d 862, 865 (1971), we have recognized that where the risk is one that would be medically significant to the patient's decision, and the risk is known or ought to be known by the physician, then it is a "substantial" risk and should be disclosed to the patient, see Bloskas, 646 P.2d at 913 & n. 6 (relying on Mallett, 171 Colo. at 282, 466 P.2d at 471). Further, the substantiality of a particular risk must be determined on the basis of expert testimony. See id. at 914 ("The precise scope of the physician's duty of disclosure is determined on the basis of expert testimony demonstrating the extent of information given by reasonably careful physicians practicing the same specialty in the same or similar community."); see also United Blood Servs. v. Quintana, 827 P.2d 509, 520 (Colo.1992) ("Because in most cases of professional negligence the applicable standard is not within the common knowledge and experience of ordinary persons, the applicable standard must be established by expert testimony.").

A claim for lack of informed consent involves a series of shifting burdens....