Nishi v. Hartwell

• Decision Date: 21 July 1970
• Docket Number: No. 4758,4758
• Parties: , 52 Haw. 296 Frances T. NISHI, Executrix of the Estate of Paul T. Nishi, Deceased, and Frances T. Nishi, Individually, Plaintiffs-Appellants, v. Dr. Alfred S. HARTWELL and Dr. Niall M. Scully, Defendants-Appellees.
• Court: Hawaii Supreme Court

Page 116

473 P.2d 116

52 Haw. 188, 52 Haw. 296

Frances T. NISHI, Executrix of the Estate of Paul T. Nishi Deceased, and Frances T. Nishi, Individually Plaintiffs-Appellants, v. Dr. Alfred S. HARTWELL and Dr. Niall M. Scully, Defendants-Appellees.

No. 4758.

Supreme Court of Hawai'i.

July 21, 1970.

Rehearing Denied Sept. 9, 1970.

Syllabus by the Court

1. A consented touching which is of the same nature and scope as that to which consent was given, but without disclosure of collateral hazard, involves the doctrine of informed consent.

2. A case involving the doctrine of informed consent sounds in negligence, as raising the question of neglect of duty required to be observed by a physician in his relationship with his patient.

3. The doctrine of informed consent imposes upon a physician a duty to disclose to his patient all relevant information concerning a proposed treatment, including the collateral hazards attendant thereto, so that the patient's consent to the treatment would be an intelligent one based on complete information.

4. The doctrine recognizes that the primary duty of a physician is to do what is best for his patient and that a physician may withhold disclosure of information regarding any untoward consequences of a treatment where full disclosure will be detrimental to the patient's total care and best interest. It also recognizes that no hard and fast rule can be stated as to the circumstances which will excuse withholding of full disclosure and as to the kind of information to be withheld, and that each case will depend on its particular facts.

5. In determining the question of physician's liability for nondisclosure courts generally follow the rule applicable to medical malpractice actions predicated on alleged negligence in treatment which requires the question of negligence to be decided by reference to relevant medical standards and imposes on the plaintiff the burden of proving the applicable standard by expert medical testimony.

6. A physician is a medical expert, and his testimony, though not given as expert testimony, may be deemed to be such, insofar as it has a bearing on the practice of medical practitioners in like circumstances.

7. The duty of a physician to make full disclosure is one that arises from physician-patient relationship, is owed to the patient himself and not to his spouse or any other member of his family.

8. The reason for the oft-repeated statement that a physician should make full disclosure to the spouse or other members of the family, if the patient could not be told, is not that the law requires him to do so, but that to apprise the patient's immediate family, not necessarily limited to his spouse, is a considerate act on the part of the physician to the spouse and the family; it is good public relations; and in some cases, the discussion which follows the disclosure will be helpful to the physician in deciding his course of action.

Michael Shane, Honolulu (Hyman M. Greenstein, Honolulu, on the brief; Greenstein & Cowan, Honolulu, of counsel), for appellants.

John H. R. Plews, Honolulu (Thomas M. Waddoups, Honolulu, on the brief; Robertson, Castle & Anthony, Honolulu, of counsel), for appellees.

Before RICHARDSON, C. J., MARUMOTO, ABE, and KOBAYASHI, JJ., and Circuit Judge KABUTAN in place of LEVINSON, J., disqualified.

MARUMOTO, Justice.

This is an appeal by plaintiffs from a circuit court judgment dismissing their medical malpractice action against Dr. Alfred Hartwell and Dr. Niall Scully. Dr. Hartwell is cardiovascular specialist, and Dr. Scully is a thoracic surgeon. Both practice their profession in Honolulu. The judgment was entered upon the granting of defendants' motion to dismiss at the close of plaintiffs' case in a trial before a jury.

The action was originally brought by Dr. Paul Nishi, a Honolulu dentist, and his wife Frances. Dr. Nishi sought to recover damages for the physical disability he suffered from undergoing a diagnostic surgical procedure known as thoracic aortography, which was recommended by Dr. Hartwell and performed by Dr. Scully. Mrs. Nishi sought recovery for loss of consortium on account of her husband's physical disability. Dr. Nishi died during the pendency of the action in the circuit court. After Dr. Nishi's death, Mrs. Nishi pressed Dr. Nishi's claim in her capacity as executrix of his estate, besides pressing her own claim in her individual capacity.

Plaintiffs' right of recovery in the action depends on whether Dr. Nishi had a good claim for relief during his lifetime.

The purpose of thoracic aortography is to determine the existence of aneurysm. The procedure involves an exposure of an artery in the inguinal region, followed by an injection of radio-opaque contrast medium through a catheter so that the concentration of the contrast medium will outline the aorta under X-ray.

Dr. Scully performed the procedure pursuant to consent signed by Dr. Nishi and Mrs. Nishi, concededly with professional competence. However, after the procedure was completed, Dr. Nishi was paralyzed from the waist down and had no control of his bowel and bladder. It is admitted that this condition occurred as a side effect of Urokon, the contrast medium which Dr. Scully used in the procedure. Neither Dr. Hartwell nor Dr. Scully apprised Dr. Nishi of the danger before he submitted himself to the procedure, although both were aware of the existence of such collateral hazard.

Plaintiffs framed their complaint as an action sounding in battery, their theory being that defendants' failure to disclose the risk vitiated the consent in this case and the performance of the procedure in the circumstance constituted an unlawful touching of Dr. Nishi's body.

Battery is an unlawful touching of another person without his consent. Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914). A touching with consent, but of a different nature or scope from that to which consent was given, is also battery. Bang v. Charles T. Miller Hospital, 251 Minn. 427, 88 N.W.2d 186 (1958); Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966).

This case is different. Here, the touching was with consent and was of the same nature and scope as that to which the consent was given, but involved an undisclosed collateral hazard. Cases such as this involve the doctrine of informed consent, and are deemed to sound in negligence as raising the question of a neglect of duty required to be observed by a physician in his relationship with his patient. Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, rehearing denied, 187 Kan. 186, 354 P.2d 670 (1960); Aiken v. Clary, 396 S.W.2d 668 (Mo.1965); Marcus L. Plante, An Analysis of 'Informed Consent', 36 Fordham L.Rev. 639 (1968).

Thus, we treat this as a negligence action. The right of a plaintiff to relief does not depend upon his allegations or his theory of the case. H.R.C.P. Rule 15(b); Territory v. Branco, 42 Haw. 304, 311 (1958).

The doctrine of informed consent imposes upon a physician a duty to disclose to his patient all relevant information concerning a proposed treatment, including the collateral hazards attendant thereto, so that the patient's consent to the treatment would be an intelligent one based on complete information. Salgo v. Leland Stanford Jr. University Board of Trustees, 154 Cal.App.2d 560, 317 P.2d 170 (1957).

However, the doctrine recognizes that the primary duty of a physician is to do what is best for his patient and that a physician may withhold disclosure of information regarding any untoward consequences of a treatment where full disclosure will be detrimental to the patient's total care and best interest. Salgo v. Leland Stanford Jr. University Board of Trustees, supra; Watson v. Clutts, 262 N.E. 153, 136 S.E.2d 617 (1964).

In this connection, it is also recognized that no hard and fast rule can be stated as to the circumstances which will excuse withholding of full disclosure and as to the kind of information to be withheld, and that each case will depend on its particular facts. Watson v. Clutts, supra; Govin v. Hunter, 374 P.2d 421 (Wyo.1962).

Thus, in Watson v. Clutts, supra, it is stated: 'Difficulty arises in attempting to state any hard and fast rule as to the extent of the disclosure required. The doctor's primary duty is to do what is best for the patient. Any conflict between this duty and that of a frightening disclosure ordinarily should be resolved in favor of the primary duty.'

Plaintiffs' presentation of their case showed the following facts:

Dr. Nishi had a history of hypertension and chronic kidney ailments, dating back to 1929, and was originally under the care of Dr. Kazuo Miyamoto, his personal friend and family physician. On the morning of October 18, 1959, he had severe and recurring attacks of chest pain, and Dr. Miyamoto referred him to Dr. Hartwell, who immediately hospitalized him for observation and taking of X-rays. His pain persisted after hospitalization, and required frequent administration of Demerol for relief. Demerol is a narcotic.

When X-rays indicated that Dr. Nishi might be suffering from aneurysm, Dr. Hartwell discussed with Dr. Nishi and Mrs. Nishi a plan to send Dr. Nishi to Houston, Texas, for surgery by Dr. Michael DeBakey of Baylor University. Dr. Nishi and Mrs. Nishi concurred in the plan. However, Dr. Hartwell felt that it was inadvisable to send Dr. Nishi to Houston without a definite determination that he had aneurysm. Thoracic aortography is the recognized procedure for making the determination. So, after consulting Dr. Scully, Dr. Hartwell recommended the procedure to Dr. Nishi and obtained his consent to its performance by Dr. Scully. In making the recommendation, Dr. Hartwell explained the procedure to Dr. Nishi but said nothing to him about the attendant collateral hazard. Dr. Hartwell's reasons for the omission appear in the following excerpts of his testimony:

'He had chronic kidney disease, having...