Lounsbury v. Capel

• Decision Date: 17 July 1992
• Docket Number: No. 910584-CA,910584-CA
• Citation: 836 P.2d 188
• Parties: Michel LOUNSBURY, Plaintiff and Appellant, v. Neal C. CAPEL, M.D., Defendant and Appellee.
• Court: Utah Court of Appeals

Page 188

836 P.2d 188

Michel LOUNSBURY, Plaintiff and Appellant, v. Neal C. CAPEL, M.D., Defendant and Appellee.

No. 910584-CA.

Court of Appeals of Utah.

July 17, 1992.

Rehearing Denied Aug. 18, 1992.

Certiorari Denied Dec. 1, 1992.

Floyd W. Holm, Cedar City, for plaintiff and appellant.

Elliot J. Williams and Elizabeth King, Salt Lake City, for defendant and appellee.

Before BENCH, P.J., and GREENWOOD and ORME, JJ.

OPINION

ORME, Judge:

Plaintiff, Michel Lounsbury, sought to recover damages from defendant, Dr. Neal Capel, alleging that Dr. Capel performed surgery on him without his consent. At trial, a jury was impaneled and heard opening statements. However, the parties at that point agreed that, prior to presenting their respective cases to the jury, they would present their evidence to the court by proffer, and ask the court to rule on what amounted to a motion for directed verdict following the proffers. It is clear from the proffers that several factual issues were vigorously contested. Nevertheless, the district court concluded that even according to the facts as alleged by Lounsbury, he had shown no right to recovery because: 1) Lounsbury had failed to establish the elements of an action for "failure to obtain informed consent" as required by Utah Code Ann. § 78-14-5(1) (1987) and 2) the consent to Lounsbury's surgery, signed by his wife, constituted an absolute defense under Utah Code Ann. § 78-14-5(2)(e) and -5(4)(b) (1987) to Lounsbury's claim that Dr. Capel operated on him without his consent. Lounsbury appeals from the district court's entry of judgment in favor of Dr. Capel. Because we disagree with the district court's interpretations of section 78-14-5, we reverse and remand for further proceedings.

FACTS

It is important to note at the outset that we recount the following facts as proffered by Lounsbury. It is undisputed on appeal and axiomatic that, because the factual issues were never resolved at trial, we must examine the evidence in the light most favorable to the losing party. Accordingly, although the facts are contested in several material respects by Dr. Capel, we take as true, solely for purposes of this appeal, the facts as proffered by Lounsbury.

Lounsbury was employed by a construction company in Beaver County, Utah. On October 10, 1986, Lounsbury injured his back while at work, sustaining a compression fracture to one of the vertebrae in his back. Lounsbury consulted several doctors about his condition, and was ultimately referred to Dr. Glen Momberger in Salt Lake City.

Dr. Momberger examined Lounsbury on March 25, 1987, and initially continued Lounsbury's ongoing program of "conservative care," which consisted of rest and pain medication. Ultimately, Dr. Momberger ordered a "myelogram," a test which allows the physician to examine the condition of the discs between the vertebrae in the back. Dr. Momberger concluded that Lounsbury had a herniated disc which was impinging on Lounsbury's nerves and causing him pain. Accordingly, Dr. Momberger suggested that Lounsbury consider surgery to remove the disc material. Because Lounsbury had misgivings about having surgery, he requested a second opinion. Lounsbury was referred to Dr. Capel.

Dr. Capel examined Lounsbury on April 22, 1987. Lounsbury claims to have had "apprehensions" about Dr. Capel from the start, due to a somewhat painful preliminary examination by Dr. Capel. Moreover, Lounsbury felt Dr. Capel did not seriously review the x-ray and myelogram results that Lounsbury had brought with him. Rather, he felt that Dr. Capel had "prejudged" that Lounsbury should have surgery and that Dr. Capel was eager to go forward with the surgery.

During this initial visit, Dr. Capel's assistant called the hospital to schedule a myelogram for May 14, 1987, and surgery for the next day. At that time, Lounsbury told the assistant that he would not decide whether to have surgery until after the myelogram was performed and Dr. Capel had fully reviewed the results of that myelogram with him. Lounsbury hoped that a review of the myelogram would indicate some improvement in his condition so he would not need to have the surgery.

Prior to his being admitted to the hospital, Lounsbury, his wife, Dr. Capel, and Dr. Capel's assistant were all present in Dr. Capel's office. Lounsbury told Dr. Capel that he would not decide whether to have the surgery until after he had had an opportunity to see the new myelogram results and discuss them with Dr. Capel.

On the morning of May 14, Lounsbury was admitted to the Dixie Medical Center. After the scheduled myelogram was performed, a nurse requested that Lounsbury sign a consent form for the surgery. Lounsbury refused, stating he had not yet decided about the surgery because he had not seen the results of the myelogram. Lounsbury was returned to his room and given pain medication at approximately 1:00 p.m.

Sometime later that afternoon, a nurse anesthetist talked to Lounsbury and his wife about the anesthesia for Lounsbury's scheduled surgery. The anesthetist had brought a consent form for the anesthesia services. Lounsbury declined to sign the form, stating that he wanted an opportunity to talk with his doctor before he would agree to have the surgery.

Between 5:00 and 6:00 p.m., Dr. Capel and his assistant came to the door of Lounsbury's hospital room and told Lounsbury that they were going to get the results of the myelogram and would "be back later to talk." Dr. Capel never returned to Lounsbury's room. Lounsbury's wife left the hospital that evening at approximately 9:30 p.m. Lounsbury continued to receive pain medication and went to sleep that night.

The first thing Lounsbury remembered upon awakening is that he received a shot--apparently of preoperative medication--around 6:20 the morning of May 15. Lounsbury has no recollection other than feeling the shot and apparently going back to sleep. Contrary to the proffer on behalf of Dr. Capel, Lounsbury has no recollection of telephoning his wife and asking her to come to the hospital to sign some paperwork.

When Mrs. Lounsbury arrived at the hospital the morning of May 15, Lounsbury was unconscious. She was given a "stack of papers" by "a couple of nurses" who said, "Here. You need to sign these." Under the circumstances, Mrs. Lounsbury felt "intimidated" and "pressured" and did not want to ask any questions. She assumed that Lounsbury had talked to Dr. Capel and had agreed to the surgery following review of the myelogram. Therefore, she went ahead and signed the papers. She had no opportunity to talk with Dr. Capel or Lounsbury. Immediately after she had signed the paperwork, Lounsbury was wheeled out of his room and into surgery.

Following the surgery, Lounsbury did not recover and return to work as he expected he would. Rather he claims that he was, and still is, in "continual pain" and has been unable to work. Moreover, he has experienced "mental depression" and "psychological problems" associated with the surgery and his continuing pain.

Approximately two years after the surgery, on April 14, 1989, Lounsbury filed a complaint against Dr. Capel, alleging he did not consent to the surgery performed by Dr. Capel and, therefore, that Dr. Capel's performance of the surgery constituted a battery upon him. ¹ Lounsbury did not allege that Dr. Capel in any way negligently performed the surgery.

Trial commenced on January 29, 1990. A jury was impaneled and heard the opening statements of each party's counsel. Following opening statements, the noon recess was taken. Upon reconvening, the court, Lounsbury, Lounsbury's counsel, and Dr. Capel's counsel, out of the presence of the jury, agreed to proceed by submitting evidence by proffer to the court. Essentially, each party's counsel proffered to the court the evidence they planned to present to the jury and, following the proffer, asked the court to rule on a motion to dismiss or motion for directed verdict.

It was clear from the proffered evidence that the parties' versions of the events leading to the surgery differed substantially. The court nevertheless concluded that judgment should be entered for Dr. Capel because, even if the facts as alleged by Lounsbury were true, Lounsbury had failed to state a cognizable claim for relief. The court so concluded for two reasons.

First, the court concluded that Lounsbury's claim was one of "failure to obtain informed consent" and, accordingly, was governed by section 78-14-5(1) of the Health Care Malpractice Act. ² Thus, Lounsbury would have to prove each element required by section 78-14-5(1) for such a claim. ³ The court concluded, based on the proffered evidence, that Lounsbury could not establish that he suffered personal injuries arising out of the health care rendered, as required by subsection (c); that a reasonable, prudent person in Lounsbury's position would not have consented to the health care rendered after having been fully informed as to all the facts relevant to the decision to give consent, as required by subsection (f); and that the unauthorized part of the health care rendered was the proximate cause of personal injuries suffered by Lounsbury, as required by subsection (g). Second, the court concluded, based on sections 78-14-5(2)(e) ⁴ and 78-14-5(4)(b) ⁵ of the Health Care Malpractice Act, that the consent to Lounsbury's surgery signed by his wife constitutes an absolute defense to Lounsbury's claim.

On appeal, Lounsbury argues essentially two points. First, he contends that the district court erroneously construed section 78-14-5(1) to bar his common law claim for battery, for which proof of actual injury is not required. In the alternative, if the district court properly interpreted section 78-14-5(1), the section is unconstitutional because it denies him a remedy for battery, thus denying him due process of law, equal protection, and uniform application of the law. Second, Lounsbury argues that the district court...