Hook v. Rothstein

• Decision Date: 16 April 1984
• Docket Number: No. 0154,0154
• Court: South Carolina Court of Appeals
• Parties: Judith L. Summers HOOK, as Administratrix of the Estate of Jack R. Summers, Appellant, v. Jerry C. ROTHSTEIN, M.D., Respondent.

Page 690

316 S.E.2d 690

281 S.C. 541

Judith L. Summers HOOK, as Administratrix of the Estate of Jack R. Summers, Appellant, v. Jerry C. ROTHSTEIN, M.D., Respondent.

No. 0154.

Court of Appeals of South Carolina.

April 16, 1984.

O. Fayrell Furr, Jr., and Donna K. Holt, Columbia, for appellant.

David W. Robinson and Malcolm E. Rentz, Columbia, for respondent.

Jeter E. Rhodes, Jr., of Whaley, McCutchen, Blanton & Rhodes, Columbia, amicus curiae for South Carolina Medical Ass'n.

J. Kendall Few, Greenville, amicus curiae, for South Carolina Trial Lawyers Ass'n.

GOOLSBY, Judge:

In this wrongful death action brought by Judith L. Summers Hook, as Administratrix of the Estate of Jack R. Summers, against Jerry C. Rothstein, M.D., the principal question on appeal concerns the test of liability in a medical malpractice case involving informed consent. Judgment was entered for the defendant physician following a jury verdict in his favor. The plaintiff administratrix appeals. We affirm.

In December 1971, the intestate Jack Summers began to suffer stomach pains. His family doctor placed him on mylanta and a bland diet. Because the pains persisted, he underwent an upper and lower gastro-intestinal series. These tests revealed what appeared to be a mass or tumor in his lower intestines. After consultation with Dr. Rothstein, a radiologist, and with a family doctor and a surgeon, it was determined that the next diagnostic step was for Mr. Summers to undergo an intravenous pyelogram (IVP).

An IVP is a procedure in which a contrast material composed of an iodine compound is injected into a patient's vein so that the kidneys and ureters can be outlined on x-ray film. See 1 D. Louisell & H. Williams, Medical Malpractice p 2.10 n. 36, at 35 (1983). Death can result from a severe reaction to the contrast material. Patients with a history of either asthma or allergies have a greater risk of reaction to the IVP contrast material than patients who have neither asthma nor allergies; however, there is no evidence that the former suffer more fatal reactions than the latter. The frequency of fatal reactions is one in 40,000.

On January 24, 1972, Mr. Summers reported to the X-Ray Department at the Lexington County Hospital for Dr. Rothstein to perform the IVP. Dr. Rothstein asked Mr. Summers whether he suffered from any allergies. Although he had a long history of allergies, Mr. Summers did not tell Dr. Rothstein about it. Dr. Rothstein, however, did not inform Mr. Summers about the possibility of a fatal reaction. His experience and training had convinced him that patient apprehension plays a significant role in reactions to the contrast material. Shortly after the procedure began, Mr. Summers suffered a severe reaction and died.

This action was commenced nearly six years later. In an amended complaint, the failure of Dr. Rothstein to inform Mr. Summers of "the risks associated with the IVP procedure" was characterized as "a wilful and wanton act of negligence" and was alleged to be the proximate cause of Mr. Summers' death. A subsequent granting of summary judgment to the appellant was reversed by the Supreme Court. Hook v. Rothstein, 275 S.C. 187, 268 S.E.2d 288 (1980).

Under the doctrine of informed consent, it is generally held that a physician who performs a diagnostic, therapeutic, or surgical procedure has a duty to disclose to a patient of sound mind, in the absence of an emergency that warrants immediate medical treatment, (1) the diagnosis, (2) the general nature of the contemplated procedure, (3) the material risks involved in the procedure, (4) the probability of success associated with the procedure, (5) the prognosis if the procedure is not carried out, and (6) the existence of any alternatives to the procedure. See 2 D. Louisell & H. Williams, supra p 22.01. The basis of the doctrine is the patient's right to exercise control over his or her own body by deciding intelligently for himself or herself whether or not to submit to the particular procedure. Sard v. Hardy, 281 Md. 432, 379 A.2d 1014, 1019 (1977); 61 Am.Jur.2d Physicians, Surgeons, and Other Healers § 187, at 318 (1981).

Neither the appellant nor Dr. Rothstein directed our attention to any case in South Carolina which expressly recognizes the doctrine of informed consent. Our own research likewise did not disclose the existence of any such case. So far, however, only Georgia has expressly refused to accord the doctrine any degree of recognition. See Butler v. Brown, 162 Ga.App. 376, 290 S.E.2d 293 (1982); Parr v. Palmyra Park Hospital, Inc., 139 Ga.App. 457, 228 S.E.2d 596 (1976); McMullen v. Vaughan, 138 Ga.App. 718, 227 S.E.2d 440 (1976). In making no contention that the doctrine would not be recognized in this state, Dr. Rothstein implicitly acknowledges its existence. That acknowledgment, we think, is a proper one. See 61 Am.Jur.2d Physicians, Surgeons, and Other Healers § 187, at 316-17 (1981); 2 D. Louisell & H. Williams, supra p 22.01; cf. Hook v. Rothstein, supra.

Several exceptions asserted by the appellant, either directly or indirectly, relate to the standard by which to measure the duty on the part of a physician to inform his or her patient of risks inherent in proposed medical treatment. Presently, there are two major standards. One is the professional medical standard, sometimes referred to as the traditional standard; and the other is the lay standard, sometimes referred to as either the materiality of risk or prudent patient standard. See 61 Am.Jur.2d Physicians, Surgeons, and Other Healers §§ 188-189 (1981); 2 D. Louisell & H. Williams, supra p 22.05, at 22-13; see also Woolley v. Henderson, 418 A.2d 1123, 1128-29 (Me.1980). The appellant maintains that the proper criterion is the lay standard.

Under the professional standard, the physician is required to disclose those risks which a reasonable medical practitioner of like training would disclose under the same or similar circumstances. See, e.g., Woolley v. Henderson, 418 A.2d at 1129; Thomas v. Berrios, 348 So.2d 905 (Fla.App.1977). In most cases, the questions of whether and to what extent a physician has a duty to disclose a particular risk are to be determined by expert testimony which establishes the prevailing standard of practice and the physician's departure from that standard. See, e.g., Folger v. Corbett, 118 N.H. 737, 394 A.2d 63, 64 (1978); Bly v. Rhoads, 216 Va. 645, 222 S.E.2d 783, 787 (1976).

On the other hand, under the lay standard the physician's disclosure duty is to be measured by the patient's need for information rather than by the standards of the medical profession. Woolley v. Henderson, 418 A.2d at 1129. Unlike the professional standard, the lay standard does not ordinarily require expert testimony as to medical standards to establish the physician's duty to disclose; rather, it is for the jury to determine whether a reasonable person in the patient's position would have considered the risk significant in making his or her decision. See, e.g., Miller v. Kennedy, 11 Wash.App. 272, 522 P.2d 852, 863 (1974), aff'd per curiam, 85 Wash.2d 151, 530 P.2d 334 (1975); Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676, 688 (1972). Medical testimony, however, may be required to establish the undisclosed risk as a known danger of the procedure. Woolley v. Henderson, 418 A.2d at 1129; see 2 D. Louisell & H. Williams, supra p 22.09.

There is neither a statute nor a Supreme Court decision which prescribes the standard in this state by which to measure a physician's duty to disclose the material risks inherent in a proposed medical procedure. In order for us to pass upon several of the appellant's exceptions, it is necessary therefore, that we first determine what the standard in South Carolina should be.

The Supreme Court's previous opinion in this case does not aid our determination because no indication as to which standard the Supreme Court favors can be drawn from its holding. Before, the Supreme Court simply reversed summary judgment in the appellant's favor because affidavits tendered by Dr. Rothstein regarding the disclosure practices of area radiologists were viewed by the Supreme Court as creating a genuine issue of material fact as to the question of liability. Hook v. Rothstein, supra. Of course, where the professional standard is employed, evidence of a medical custom is ordinarily of paramount importance with regard to the issue of liability [ see, e.g., Fuller v. Starnes, 268 Ark. 476, 597 S.W.2d 88, 90 (1980) ]; however, such evidence can also be considered in determining liability where the lay standard is used. See, e.g., Wilkinson v. Vesey, supra.

The greater number of the jurisdictions in this country follow the professional standard. See Annot., 88 A.L.R.3d 1008, 1012 (1978); see, also Riedisser v. Nelson, 111 Ariz. 542, 534 P.2d 1052 (1975); Fuller v. Starnes, supra; Coleman v. Garrison, 327 A.2d 757 (Del.Super.1974), aff'd, 349 A.2d 8 (1975); Brown v. Wood, 202 So.2d 125 (Fla.App.1967); Nishi v. Hartwell, 52 Haw. 188, 473 P.2d 116 (1970); Ziegert v. South Chicago Community Hospital, 99 Ill.App.3d 83, 54 Ill.Dec. 585, 425 N.E.2d 450 (1981); Tatro v. Lueken, 212 Kan. 606, 512 P.2d 529 (1973); Woolley v. Henderson, supra; Marchlewicz v. Stanton, 50 Mich.App. 344, 213 N.W.2d 317 (1973); Ross v. Hodges, 234 So.2d 905 (Miss.1970); Cress v. Mayer, 626 S.W.2d 430 (Mo.App.1981); Llera v. Wisner, 171 Mont. 254, 557 P.2d 805 (1976); Folger v. Corbett, supra; Moore v. Underwood Memorial Hospital, 147 N.J.Super. 252, 371 A.2d 105 (1977); Bulter v. Berkeley, 25 N.C.App. 325, 213 S.E.2d 571 (1975); German v. Nichopoulos, 577 S.W.2d 197 (Tenn.App.1978); Wilson v. Scott, 412 S.W.2d 299 (Tex.1967); Bly v. Rhoads, supra; Stundon v. Stadnik, 469 P.2d 16 (Wyo.1970). Almost as many jurisdictions adhere to the lay standard. See Annot., supra at 1034; see also Cobbs v. Grant, 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1 (1972); Logan v. Greenwich Hospital Ass'n...