Griffith v. Jones

Decision Date29 August 1991
Docket NumberNo. 57A03-9103-CV-90,57A03-9103-CV-90
Citation577 N.E.2d 258
PartiesHarold W. GRIFFITH, M.D., Appellant-Defendant Below, v. Carol JONES, as Personal Representative of the Estate of Jon W. Jones, deceased, Appellee-Plaintiff Below.
CourtIndiana Appellate Court

James P. Fenton, John M. Clifton, Jr., Fort Wayne, for appellant-defendant.

Daniel A. Roby, Kathryn J. Roudebush, Roby and Hood, Fort Wayne, for appellee-plaintiff.

STATON, Judge.

A Petition for Certification and Acceptance of Interlocutory Appeal Pursuant to Rule 4(B)(6), Indiana Rules of Appellate Procedure filed by Harold Griffith, M.D. was granted on June 19, 1991. He presents four restated issues:

I. Whether the trial court erred in finding that the prudent patient standard rather than the modified locality rule sets forth the applicable standard of care in an informed consent case?

II. Whether the trial court erred in precluding the Medical Review Panel's issuance of an expert opinion regarding compliance with the standard of care in an informed consent case by instructing the Panel to find, pursuant to IND.CODE 16-9.5-9-7(c), that there are material issues of fact, not requiring expert opinion, bearing on liability for consideration by the court or jury?

III. Whether the trial court erroneously instructed the Medical Review Panel concerning the definition and application of the phrase "a factor" in IND.CODE 16-9.5-9-7(d)?

IV. Whether the trial court erroneously denied Dr. Griffith's motion to exclude from the Medical Review Panel a consent form and a copy of IND.CODE 16-9.5-1-4?

Jones alleges as cross-error the trial court's denial of her Motion for Partial Summary Judgment on the issue of informed consent. She also challenges the trial court's definition of "a factor" referenced in I.C. 16-9.5-9-7(d).

We affirm.

On June 27, 1985, Jon Jones was admitted to Parkview Memorial Hospital in Fort Wayne, Indiana to undergo a femoral angiography. The angiography was performed by Dr. Griffith, who did not advise Jones that there was a risk of death in undergoing the procedure. After the procedure was concluded, Jones experienced a severe anaphylactic reaction to the radiographic contrast material. The crash cart in the radiological area of the hospital was not equipped with diluted intravenous epinephrine; consequently, Dr. Griffith administered epinephrine via an intramuscular injection. Attempts to resuscitate Jones were unsuccessful.

Carol Jones, the wife of the decedent, filed a Motion for Preliminary Determination in the United States District Court for the Northern District of Indiana, seeking a preliminary determination in connection with the convening of a medical review panel under the Indiana Medical Malpractice Act. She alleged that Dr. Griffith failed to obtain informed consent and negligently administered epinephrine intramuscularly rather than intravenously.

The decision rendered in Jones v. Griffith (N.D.Ind.1988) 688 F.Supp. 446 was vacated by the United States Court of Appeals, Seventh Circuit because the district court lacked subject matter jurisdiction to make a preliminary determination in the nature of an advisory opinion. Jones v. Griffith (7th Cir.1989), 870 F.2d 1363. The federal appellate court concluded that Jones must first obtain instructions from an Indiana court to the Medical Review Panel ("panel") and obtain an opinion from the panel before filing a malpractice suit in federal court under diversity jurisdiction. Id. at 1367-68.

On June 21, 1989, Jones filed a Motion for Preliminary Determination in the Allen Superior Court. The matter was subsequently venued to the Noble Superior Court. Jones requested partial summary judgment that Dr. Griffith breached his duty to act within the appropriate standard of care for informed consent by failing to inform the decedent that death was a risk inherent in the arteriogram procedure. The published deposition of Dr. Griffith disclosed that he was aware of this risk prior to June 1985. Record, p. 98.

Alternatively, Jones requested a determination that there exists a material issue of fact, not requiring expert opinion, bearing on liability for consideration by the court, which precludes the rendering of expert opinion by the panel.

Dr. Griffith opposed partial summary judgment, and additionally filed a Motion to Exclude Evidence from Medical Review Panel. Dr. Griffith sought to exclude: (1) Plaintiff's Exhibit B, a consent form drafted after the decedent's death; (2) portions of his deposition which referred to Exhibit B; and (3) evidence relating to informed consent as delineated in I.C. 16-9.5-1-4.

On May 23, 1990, the trial court ordered published the depositions of Harold W. Griffith, M.D., Dennis Warner (a radiological technician), Bonnie Doerffler (a radiological technician) and Myra Chandler (a radiology nurse).

On June 14, 1990, the trial court issued its findings of fact, conclusions of law and judgment as follows:

A. FINDINGS OF FACT

1. On June 27, 1985, Jon W. Jones underwent a radiographic procedure at Parkview Hospital, commonly referred to as femoral angiography, which procedure was performed by Defendant Harold Griffith, M.D.

2. Defendant, Harold Griffith, M.D., acknowledged that it was his responsibility to

inform patients undergoing femoral angiographic procedure of the risks of this procedure, but consciously elected not to advise patients of the risk of death or anaphylactic reaction to contrast dye.

3. Jon W. Jones was [sic?] 1 advised as to the risk of death or anaphylactic reaction inherent in the procedure known as a femoral angiogram.

4. Jon W. Jones died at Parkview on June 27, 1985, at the conclusion of the femoral angiograpahic [sic] procedure performed by Defendant, Harold W. Griffith, M.D.

5. Defendant, Harold Griffith, M.D., testified that the cause of Jones' death was severe anaphylactic reaction to the radiographic contrast material. (Deposition of Dr. Harold Griffith, pp. 10, 14).

6. Death from anaphylactic reaction as a risk of this angiographic procedure was medically recognized and well known to Defendant, Harold Griffith, M.D., and had been recognized by him since 1946 when he was a medical school student. (Deposition of Dr. Harold Griffith, pp. 19-20).

7. When Jon W. Jones suffered apparant [sic] anaphylactic reaction to the radiographic contrast material, Defendant, Harold Griffith, M.D., administered epinepherine by was [sic] of intramuscular injection, even though Jones had an open intravenous line in his arm for administration of epinephrine in such an emergency. (Deposition of Dr. Harold Griffith, pp. 11, 63, 81).

8. Epinephrine was administered to Jon W. Jones intramuscularly rather than intravenoulsy [sic] because of the crash cart located in the radiological area was not properly equipped with diluted intravenous epinephrine. (Deposition of Dr. Harold Griffith, p. 90; Deposition of Myra Chandler, pp. 10-12).

9. It was the responsibility of Defendant, Harold Griffith, M.D., to have equipped the radiological crash cart with diluted intravenous epinephrine. (Deposition fo [sic] Dr. Harold Griffith, p. 88).

10. Cardiac resuscitation efforts performed on Jon W. Jones were unsuccessful.

11. This matter has not yet been submitted to a Medical Review Panel.

B. CONCLUSIONS OF LAW

1. Indiana has adopted the prudent patient standard of care in informed consent cases, as articulated in Joy v. Chau (1978), 177 Ind.App. 29, 377 N.E.2d 670 and its reliance upon Canterbury v. Spence (C.A.D.C.1972), 464 F.2d 772, cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518; Revord v. Russell (1980), Ind.App., 401 N.E.2d 763; footnote 7 of Jones v. Griffith (N.D.Ind.1988), 688 F.Supp. 446, vacated on other grounds, 870 F.2d 1363 (7th Cir., 1989); Methodist Hospital v. Ray (1990), Ind.App., 551 N.E.2d 463; and Payne v. Marion General Hospital (1990), Ind.App., 549 N.E.2d 1043.

2. The Medical Review panel cannot render an expert opinion regarding complaince [sic] with the standard of care in informed consent matters such as here involved, because the modified locality rule does not set the standard in Indiana informed consent cases. The appropriate standard requires the physician to disclose all risks which a reasonably prudent patient would consider material to the decision to undergo or forego a particular procedure.

3. Since there is no evidence in this record as to the frequency of anaphylactic reaction and death, resulting from femoral angiography, the Court is unable to find as a matter of law that disclosure of these risks would have been material to the decision of a reasonably prudent patient to undergo or forego this procedure.

Even though Defendant, Harold Griffith, M.D., admittedly made no disclosure whatsoever of the risks of anaphylactic reaction and death to decendent [sic], Jon W. Jones, the Court finds that there are still material issues of fact precluding partial summary judgment in favor of Plaintiff on the informed consent issue, in that these risks may have been so unlikely to occur that they would have been immaterial to a reasonably prudent patient, and therefore, need not have been disclosed to Jon W. Jones. The Court finds that the issue of the materiality of these risks to a reasonably prudent patient, and hence whether the standard of care regarding disclosure was or was not breached, remains a question for determination by the trier of fact after hearing lay as well as expert testimony. Accordingly, Plaintiff's Motion for Partial Summary Judgment on informed consent is denied. See Johnson v. Padilla, 433 N.E.2d 393 (Ind.App.1982) and I.C. 16-9.5-10-1. The Chairman of the Medical Review Panel is, therefore, directed to instruct the members of the Medical Review Panel as follows:

Regarding informed consent issues, the Medical Review Panel is directed to find, pursuant to I.C. 16-9.5-9-7(c), that there are material issues of fact, not requiring expert...

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