Nash v. Raneri

• Decision Date: 01 September 1988
• Docket Number: No. 471,471
• Parties: Helen NASH v. Anthony J. RANERI, et al. ,
• Court: Court of Special Appeals of Maryland

Page 402

77 Md.App. 402

550 A.2d 717

Helen NASH v. Anthony J. RANERI, et al.

No. 471, Sept. Term, 1988.

Court of Special Appeals of Maryland.

Dec. 5, 1988.

William J. Blondell, Jr. (David B. Ginsburg and William J. Blondell, Jr., Chartered on the brief), Baltimore, for appellant.

Catherine A. Potthast (John G. Prendergast, Jr. and Smith, Somerville & Case, on the brief), Baltimore, for appellees.

Argued before MOYLAN, WILNER and ROBERT M. BELL, JJ.

MOYLAN, Judge.

The appellant, Helen Nash, required the amputation of her left leg following complications from bypass surgery. Mrs. Nash filed a medical malpractice claim with the Health Claims Arbitration Office against the appellees, Dr. Anthony J. Raneri and Neil Novin Surgical Associates, P.A. The Health Claims Arbitration Panel awarded Mrs. Nash $220,000. The parties thereafter filed actions to nullify the award and litigate the claim in the Circuit Court for Baltimore City. The case was tried before a jury. The jury returned a verdict in favor of the appellees, and judgment was entered accordingly. Mrs. Nash has filed this appeal.

The appellee Dr. Raneri is a vascular surgeon and is a partner with Dr. Neil Novin in the appellee professional association known as Neil Novin Surgical Associates, P.A. Mrs. Nash first saw Dr. Raneri on September 9, 1980. For several years, she had been experiencing leg pain while walking. The pain was more pronounced in the right leg, although she experienced the pain in the hips and calves of both legs. The pain had worsened over the years. Shortly before September, 1980, the leg pain was so severe that Mrs. Nash had to stop and rest at least five minutes after walking only a block or so. Her cardiologist, Dr. Lawrence Awalt, diagnosed her condition as "intermittent claudication," caused by the build-up of plaque on the inside walls of the arteries. This condition is also known as atherosclerotic vascular disease or hardening of the arteries. It is caused by a deposition of cholesterol-type fat in the walls of the arteries over a period of time. The plaque build-up in the arteries restricted blood flow to Mrs. Nash's legs, thereby depriving her muscles of oxygen and nutrients and causing the discomfort that she was experiencing. Dr. Awalt referred Mrs. Nash to Dr. Raneri.

Dr. Raneri's examination of Mrs. Nash confirmed blockage in the arteries of both legs. He recommended that she be hospitalized for an arteriogram to define the areas of occlusion or stenosis. Mrs. Nash underwent an arteriogram at South Baltimore General Hospital on September 17, 1980. This procedure indicated that she had significant blockage of the arteries in both legs, with more blockage in the right leg.

Dr. Raneri recommended that Mrs. Nash undergo aorto-femoral bypass surgery and discussed the risks of the procedure with her. In Mrs. Nash's case, the blockage was in the aorta and in the iliac arteries. The iliac arteries branch from the aorta into the legs. The femoral arteries are the same blood vessels but are below the iliac arteries. Aorto-femoral bypass surgery involves placing a graft from the aorta, around the diseased iliac artery, to the healthy femoral artery. The blood flow is thereby channeled from the aorta to a point below the blockage. This relieves the symptoms and discomfort of the disease, although it does not cure it.

Dr. Neil Novin, Dr. Raneri's partner, saw Mrs. Nash at the South Baltimore General Hospital after the arteriogram and discussed the proposed surgery with her. He explained to her that the risk of the proposed operation was significant. He told her that she could die from the procedure. She could have significant bleeding or her kidneys could fail. She could develop an infection and she could lose her leg.

On September 18, Mrs. Nash signed a consent form for an aorto-bifemoral bypass--an insertion of a graft from the aorta to the femoral arteries on both sides. The surgery took place the next day. During the course of that surgery, Dr. Raneri, however, decided to perform a bilateral aorto-iliac bypass instead of a bilateral aorto-femoral bypass. This involves attaching the lower portion of the graft to the iliac arteries nearer the aorta rather than to the femoral arteries further down. In the process, a phenomenon known as an "embolic shower" occurred. Small sand-like particles of plaque broke loose from the diseased blood vessels and traveled to the tiny peripheral blood vessels of Mrs. Nash's left foot and leg. This caused a severe circulatory obstruction or "trash foot." Gangrene set in, which eventually required the amputation of Mrs. Nash's left leg below the knee.

At the trial, at the conclusion of all of the evidence, Mrs. Nash made a motion for judgment on the issue of informed consent. The court denied the motion. The jury was instructed on the law of informed consent. It returned a special verdict finding that Mrs. Nash had given informed consent for the procedure and that there was no violation of the standard of care by the appellees. On this appeal, Mrs. Nash contends that she was entitled to a judgment as a matter of law on the issue of informed consent. She contends that Dr. Raneri performed a different surgical procedure than was discussed with her and failed to discuss alternatives to, or risks of, surgery.

The doctrine of informed consent was thoroughly discussed by the Court of Appeals in Sard v. Hardy, 281 Md. 432, 379 A.2d 1014 (1977). The doctrine follows logically from the requirement that a physician, treating a mentally competent adult under a non-emergency situation, cannot perform surgery or administer other therapy without the patient's consent. That consent must be an "informed" consent, that is, the physician must "explain the procedure to the patient and ... warn him of any material risks or dangers inherent in or collateral to the therapy, so as to enable the patient to make an intelligent and informed choice about whether or not to undergo such treatment." 281 Md. at 439, 379 A.2d 1014. With respect to what the physician must disclose to the patient, the Court in Sard v. Hardy said, at 281 Md. 440, 379 A.2d 1014:

"This duty to disclose is said to require a physician to reveal to his patient the nature of the ailment, the nature of the proposed treatment, the probability of success of the contemplated therapy and its alternatives, and the risk of unfortunate consequences associated with such treatment."

The proper test for measuring what risk information the physician has a duty to disclose is "whether such data will be material to the patient's decision." 281 Md. at 443, 379 A.2d 1014.

Dr. Raneri discussed the possibility of surgery with Mrs. Nash after he first examined her and confirmed that there was blockage in the arteries of both legs. The blood pressure in Mrs. Nash's right leg compared to the blood pressure in her right arm was only 40 per cent; in her left leg, it was 60 per cent of the pressure in her left arm. This indicated to Dr. Raneri that Mrs. Nash had a severe loss of circulation.

While Mrs. Nash was in Dr. Raneri's office, he called her cardiologist, Dr. Awalt, and discussed her condition with him. Mrs. Nash had been smoking for some 35 to 40 years. She had had two heart attacks. Dr. Awalt had attempted to get her to stop smoking, to no avail. At the time she saw Dr. Raneri, Mrs. Nash was so incapacitated by the disease that she was having trouble working and in doing her housework. She was unable to travel.

Dr. Raneri testified that cessation of smoking and increased exercise, which are the "conservative treatment" for intermittent claudication, would have been ineffective in Mrs. Nash's case to correct the severe problem she had. These measures do not improve the condition but may stabilize it so that a patient does not get worse. Dr. Raneri testified that although he...