Nelson v. Mueller, 43091
| Decision Date | 27 March 1975 |
| Docket Number | No. 43091,43091 |
| Parties | Lloyd K. NELSON and Wylma A. Nelson, his wife, Appellants, v. Alfred B. MUELLER, M.D., and Sassan Sanai, M.D., Respondents. |
| Court | Washington Supreme Court |
Sullivan, Morrow & Longfelder, Daniel F. Sullivan, Seattle, for appellants.
Williams, Lanza, Kastner & Gibbs, Henry E. Kastner, Joel D. Cunningham, Seattle, for respondents.
The plaintiffs (appellants), Lloyd K. Nelson and Wylma A. Nelson, his wife, having brought suit for medical malpractice, appeal from a jury verdict in favor of the defendants (respondents), Alfred B. Mueller, M.D., and Sassan Sanai, Md.
Mr. Nelson (hereinafter referred to as the plaintiff), has suffered from atrial fibrillation (fluctuation of the heart beat) since 1959. He was in the pharmacy business and continued to lead an active life under the care of his family physician, Dr. Mueller. The evidence shows that atrial fibrillation may occur in conjunction with an underlying heart ailment or without an underlying heart ailment, the latter being known as idiopathic. The record is in dispute as to the actual condition of the plaintiff in this regard.
On May 25, 1971, Mr. Nelson visited Dr. Mueller, prior to a trip to Alaska, in order that he might see if there had been any change in his condition. Dr. Mueller suggested that the plaintiff see Dr. Sanai, a specialist in cardiology, to determine his cardiac reserve. Two days later, Dr. Sanai thoroughly examined the plaintiff with hopes that he might qualify as a candidate for a procedure known as electrocardioversion (a procedure which attempts to return the heart to normal rhythm). The most significant risk of such a procedure is that an individual suffering from atrial fibrillation has a propensity to develop blood clots in his heart, and that electrocardioversion may accelerate an embolism (the throwing of the clot to the brain or other part of the body), which could result in either death or paralysis.
From this point the evidence is in dispute. The plaintiff testified that neither of the defendant doctors informed him of the risk of an embolism or alternatives to the procedure in light of his condition. In fact, the plaintiff stated that Dr. Mueller had said there was no risk. In response, Dr. Sanai testified that he fully explained the procedure to the plaintiff, along with its inherent risks and alternatives. Dr Mueller testified that he could not honestly remember discussing the risks of the procedure with the plaintiff, yet he believed that he had.
On the advice of the defendants, the plaintiff underwent the procedure on May 31, 1971, which resulted in an embolism causing the permanent paralysis of his left side.
During the trial there was undisputed testimony, including that of the defendants, that there was a duty to inform the plaintiff of the various risks and alternative modes of treatment as they pertained to electrocardioversion. The basic factual issues are whether Mr. Nelson was suffering from idiopathic atrial fibrillation, in which case, according to expert witnesses, electrocardioversion would not be warranted; and secondly, whether the defendants did, in fact, actually inform the plaintiff of the risks. At the conclusion of the trial, the jury returned a verdict in favor of the defendants, upon which judgment was entered. The plaintiff moved for a new trial alleging that newly discovered evidence established that Dr. Sanai had knowingly and willfully given false testimony. This motion was dismissed and the plaintiff appealed to this court for review.
The plaintiff's first assignment of error is that the trial court erred when it instructed the jury that under the 'informed consent' doctrine, medical testimony was required to establish the Physician's duty to disclose those material risks of injury which are inherent in the proposed procedure. The plaintiff contends that medical testimony is only necessary in establishing the existence of the risks and any alternative treatments which are available. The defendants contend that the plaintiff was not prejudiced by the instruction and that the only issue before the jury was one of credibility. We agree with the defendants.
The giving of an erroneous instruction does not justify the granting of a new trial unless the appellant can establish that he was prejudiced thereby and that the error affected the jury's conclusion. Kennedy v. Clausing, 74 Wash.2d 483, 445 P.2d 637 (1968); Stuart v. Consolidated Foods Corp., 6 Wash.App. 841, 496 P.2d 527 (1972). The record in this case clearly demonstrates that any error committed by the giving of the above instruction was inconsequential since all of the expert medical testimony, Without exception, did establish that there was a duty to inform the plaintiff of the risk of an embolism. Even the defendant physicians verified the existence of this duty. The only issue presented to the jury for their consideration was one of credibility; did the defendants fulfill their legal duty to disclose all material risks to the plaintiff or did they not fulfill their duty? The plaintiff's testimony directly contradicted the testimony of Dr. Sanai. The verdict rendered by the jury establishes which testimony was considered to be most persuasive. We are convinced that had the instruction been different, the result would still have remained the same. Without a showing of prejudice by the plaintiff no ground exists in regard to the giving of this instruction which would warrant a reversal.
In addition to the question of duty, the plaintiff contends that the 'informed consent' instruction was erroneous in that it required him to establish that had he been fully informed of the risks, he would not have consented to the treatment, hereinafter referred to as the subjective test. The plaintiff argues that the proper test (the objective test), is what a reasonable man would do rather than the subjective criteria utilized by the trial court. In order to preserve an alleged error in an instruction, an exception must inform the trial court of the Specific ground for the exception. Miller v. Station, 58 Wash.2d 879, 365 P.2d 333 (1961). While the plaintiff did except to the inclusion of this subjective test under the 'informed consent' instruction, arguing that it was 'a question for the jury to properly cover in the proximate cause...
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