Ketchup v. Howard

Decision Date29 November 2000
Docket NumberNo. A00A0987.,A00A0987.
Citation543 S.E.2d 371,247 Ga. App. 54
CourtGeorgia Court of Appeals


Jones, Osteen, Jones & Arnold, Linnie L. Darden III, Hinesville, for appellant.

Brannen, Searcy & Smith, David R. Smith, Savannah, for appellee.

JOHNSON, Chief Judge.

The common law doctrine of informed consent provides that physicians and dentists have a duty to inform patients of the known material risks of a proposed treatment or procedure and to inform patients of available treatment alternatives. All of the states except Georgia now recognize the informed consent doctrine.1 Since this court's 1975 decision in Young v. Yarn,2 Georgia has not recognized any duty on the part of medical professionals to advise their patients of the known material risks of a proposed treatment or procedure nor any duty to advise of the availability of reasonable alternative treatments, thus implicitly rejecting the common law doctrine of informed consent. Because Young v. Yarn was wrongly decided, because physicians and dentists have adopted the doctrine of informed consent into their own professional ethical standards, and because of developments in Georgia law since Young v. Yarn was decided, we now overrule that decision and all the cases which have followed it. Henceforth the law of this state, like that of the other 49 states, will recognize the common law doctrine of informed consent.

Dr. A.J. Howard examined Joseph Ketchup and told him that he needed a root canal on one of his molars. The procedure was scheduled for a later date. Ketchup returned to Dr. Howard's office on that date for the root canal procedure. Dr. Howard, without ever informing Ketchup of any risks involved with the procedure or of any alternative treatments, then performed the root canal.

Since his root canal, Ketchup has experienced continuous numbness of his lower lip, chin, and gum on the side where the root canal was performed. An endodontist and a neurologist have examined Ketchup and have concluded that the numbness is the result of dental neuropathy, caused by damage to a nerve during the root canal procedure. The nerve injury apparently is permanent.

Ketchup sued Dr. Howard for dental malpractice, alleging that Dr. Howard (1) negligently injected anesthetic agents while performing the root canal; (2) used improper materials to perform the root canal; and (3) failed to inform Ketchup of the risk of nerve damage resulting from the root canal. Dr. Howard moved for summary judgment, and the trial court granted his motion.

Ketchup appeals, contending the trial court erred in granting summary judgment on that portion of his claim based upon Dr. Howard's failure to inform him of the risks of the procedure. While we conclude that Young v. Yarn wrongly declared that there is no duty to inform patients of the known material risks of a proposed course of treatment and must be overruled, we further hold that Georgia's recognition of the informed consent doctrine must apply prospectively. We therefore are constrained to affirm the trial court's summary judgment ruling based on the law as it existed at the time of that ruling.

1. The court in Young v. Yarn construed only that part of the Georgia Medical Consent Law, Code § 88-2906, now OCGA § 31-9-6, which provides:
A consent to surgical or medical treatment which discloses in general terms the treatment or course of treatment in connection with which it is given and which is duly evidenced in writing and signed by the patient or other person or persons authorized to consent pursuant to the terms of this chapter shall be conclusively presumed to be a valid consent in the absence of fraudulent misrepresentations of material facts in obtaining the same.

In construing this language, the Young court found that a physician's duty to inform the patient of the proposed treatment in general terms does not include a duty to disclose the risks of treatment. Thus, the court held, a patient cannot sustain an action based on a doctor's failure to warn of the risks of treatment.3 We conclude that the court wrongly decided the case because it erroneously applied well-settled rules of statutory construction, and it did not consider the ramifications of certain constitutionally protected liberty interests. In order to understand precisely how this court misapplied the rules of statutory construction, it is important to remember that "consent" in the medical sense involves two distinct legal principles, both derived from common law doctrine. The first principle involves " basic" consent, meaning that consent which avoids a battery, i.e., the consent to a "touching." As Justice Cardozo observed while sitting on the Court of Appeals in New York, "Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent [ ] commits an assault, for which he is liable in damages."4 In other words, a medical "touching" without consent is like any other touching without consent: it constitutes the intentional tort of battery for which an action will lie.

The second principle of consent in the medical context is "informed" consent, which addresses the autonomy of a competent patient to determine what medical treatment he will allow or refuse. As Justice Rehnquist noted in the Cruzan v. Director, Mo. Dept. of Health,5 discussed later in this opinion, the United States Supreme Court observed as far back as 1891 that "`no right is held more sacred, or is more carefully guarded, by the common law'" than an individual's right to possession and control of his own person free from restraint, a notion of bodily integrity embodied in the requirement that informed consent is generally required for medical treatment. Informed consent essentially involves a medical professional fully informing a patient of the risks of and alternatives to the proposed treatment so that the patient's right to decide is not diminished by a lack of relevant information. We must consider these two principles of consent when considering what this court in Young v. Yarn held in interpreting Georgia's Medical Consent Law.

Roscoe Pound eloquently described the judge's task in interpreting a statute when he pointed out that the object of interpretation is to discover the rule which the lawmaker intended to establish or the intent with which the lawmaker made the rule. That is to say, to discover the sense which the lawmaker attached to the words so that others could derive from the words the same meaning the lawmaker intended to convey.6 Ordinarily one accomplishes this, in the judicial sense, by looking at the literal meaning of the words used and the context in which the words are employed.

By looking to the plain language of that portion of the 1971 Georgia Medical Consent Law which the Young v. Yarn decision addressed,7 in the context of the whole statute, it is apparent that the legislature intended to address only the "basic" consent which avoids a battery action, and not "informed" consent.8 Parts of the statute which were not even mentioned by the court in the Young v. Yarn decision9 provide the context in which the legislation is to be understood. These sections address matters such as who can consent to medical treatment and under what circumstances, what happens when an emergency exists and no authorized person is available to allow the necessary treatment to be performed, and how many persons are required to give the needed consent. In this context, which looks to the entire statute rather than an isolated sentence, it is apparent that in providing that a signed form in which the patient consents to a treatment or procedure which had been explained in general terms is conclusively valid consent, the legislature plainly addressed only basic consent. The concept of informed consent is not mentioned or addressed by the statute. Certainly the statute does not state expressly or even imply that informed consent is not recognized in Georgia. In the absence of plain language to that effect, the court in Young v. Yarn went beyond the legislative intent in concluding that an action based on lack of informed consent will not lie in Georgia.

Furthermore, on the question of whether this court correctly interpreted the statute, we find the analysis of the Young v. Yarn opinion in a Mercer Law Review article10 published less than a year after the decision compelling. The Young v. Yarn decision relied heavily on a Black's Law Dictionary definition of "treatment," rather than on the terms "consent" and "disclosure," which are also used in the statute. As this article points out, had the analysis turned upon the definition of either of those terms, it seems likely the court would have recognized the doctrine of informed consent like every other jurisdiction in the country. "One cannot consent to that of which he is not aware; it follows then that the patients cannot be held to have consented to the risks of surgery if they are not informed of these risks."11

Moreover, a 1985 bar journal article12 noted correctly that OCGA § 31-9-6 contains no reference whatsoever to the common law doctrine of informed consent and that "a literal reading of the statute by any informed student of tort law would lead one to conclude that it relates only to basic consent in terms of potential actions for assault and battery." And while the statute itself provides that it is to be liberally construed,13 even liberal construction would not require or permit an interpretation which had the effect of eliminating an accepted common law doctrine that the statute did not even mention.

Furthermore, this court has held that this statute is indeed in derogation of the common law.14 Therefore, the ordinary rules of statutory construction would require that the statute be strictly construed.15 Had...

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22 cases
  • Garza v. State
    • United States
    • Georgia Supreme Court
    • 3 Noviembre 2008
    ...error in the construction of a statute even in the face of legislative inaction is not unprecedented. See, e.g., Ketchup v. Howard, 247 Ga.App. 54(1), (2), 543 S.E.2d 371 (2000) (overruling 25-year-old precedent construing Georgia Medical Consent Law despite Legislature's implicit acquiesce......
  • Adkins v. Cline
    • United States
    • West Virginia Supreme Court
    • 1 Diciembre 2004
    ...apply the newly pronounced law to the parties to the case which resulted in the new law, as clearly explained in Ketchup v. Howard, 247 Ga.App. 54, 543 S.E.2d 371 (2000). In Ketchup, the Georgia court stated that a "purely prospective application of the principles announced herein" was bein......
  • Sood v. Smeigh
    • United States
    • Georgia Court of Appeals
    • 6 Febrero 2003
    ...backward is a risk of negligence, about which a patient is not advised regarding any informed consent. See generally Ketchup v. Howard, 247 Ga.App. 54, 543 S.E.2d 371 (2000); cf. OCGA § 31-9-6.1; Albany Urology Clinic v. Cleveland, supra at 298-299(1), 528 S.E.2d 777. Thus, in alleging prof......
  • Nathans v. Diamond
    • United States
    • Georgia Supreme Court
    • 21 Noviembre 2007
    ...that no expert affidavit is necessary to support their informed consent claim, the contention is incorrect. See Ketchup v. Howard, 247 Ga.App. 54, 62-63, 543 S.E.2d 371 (2000) (on informed consent claim, expert testimony is required to establish whether the particular risks of the surgery w......
  • Request a trial to view additional results
3 books & journal articles
  • Defining the limits of a physician's duty to disclose in Massachusetts.
    • United States
    • Suffolk Journal of Trial & Appellate Advocacy No. 11, January 2006
    • 1 Enero 2006
    ...the correct standard for informed consent, either the physician-based standard or the patient-based standard. Ketchup v. Howard, 543 S.E.2d 371, 380-87 (Ga. Ct. App. 2000). Unlike the patient-based standard, the physician-based standard requires the physician to disclose those risks that a ......
  • Defending the informed consent case: analyzing the materiality of the risk, causation, and expert testimony requirements.
    • United States
    • Defense Counsel Journal Vol. 72 No. 4, October 2005
    • 1 Octubre 2005
    ...test of causation. Expert testimony is required to establish that the particular risk was or should have been known. Ketchup v. Howard, 543 S.E.2d 371, 378-79 (Ga. App. Applies the objective test of causation. Expert testimony is required to establish the materiality of the risk, i.e., natu......
  • Doreika v. Blotner: Affirming Ketchup Against Judicial Mustard - Valentin Leppert
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 60-2, January 2009
    • Invalid date
    ...for certiorari on August 12, 2008, and the Georgia Supreme Court granted this request on November 3, 2008. Id. 11. Ketchup v. Howard, 247 Ga. App. 54, 54, 543 S.E.2d 371, 372-73 (2000). 12. Suzanne K. Ketler, Note, The Rebirth of Informed Consent: A Cultural Analysis of the Informed Consent......

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