Pauscher v. Iowa Methodist Medical Center, 86-364

• Decision Date: 17 June 1987
• Docket Number: No. 86-364,86-364
• Citation: 408 N.W.2d 355
• Parties: Dennis James PAUSCHER, Administrator for the Estate of Becky Gay Pauscher, Appellant, v. IOWA METHODIST MEDICAL CENTER, Jeff Watters, and John Bardole, Appellees.
• Court: Iowa Supreme Court

Page 355

408 N.W.2d 355

56 USLW 2034

Dennis James PAUSCHER, Administrator for the Estate of Becky Gay Pauscher, Appellant, v. IOWA METHODIST MEDICAL CENTER, Jeff Watters, and John Bardole, Appellees.

No. 86-364.

Supreme Court of Iowa.

June 17, 1987.

Rehearing Denied July 20, 1987.

R. Ronald Pogge of Hopkins & Huebner, P.C., Des Moines, for appellant.

Thomas A. Finley and Hugh J. Cain of Duncan, Jones, Riley & Finley, Des Moines, for appellee Iowa Methodist Medical Center.

John A. McClintock and David L. Brown of Hansen, McClintock & Riley, Des Moines, for appellee Jeff Watters.

Eugene Davis and Robert C. Rouwenhorst of Davis, Grace, Harvey, Horvath, Gonnerman & Rouwenhorst, Des Moines, for appellee John Bardole.

Considered by REYNOLDSON, C.J., and HARRIS, SCHULTZ, CARTER, and NEUMAN, JJ.

REYNOLDSON, Chief Justice.

The administrator of Becky Gay Pauscher's estate brought this wrongful death action against the defendant hospital and doctors, alleging Becky died as a direct result of a diagnostic procedure to which she had not given her informed consent. Trial court directed a verdict for defendants on the ground plaintiff had not produced testimony from medical experts to show that reasonable medical practice would have required her to be informed of the attendant risk of death. Plaintiff has appealed. We affirm, although not on the basis of trial court's ruling.

August 1, 1982, Becky, age twenty-six, entered Iowa Methodist Medical Center (IMMC) to deliver her first child. The child, Brad, was born the next day and Becky was scheduled to be released August 6.

On the day she was to leave the hospital, Becky developed a fever and pain in her right side. She also began to discharge large amounts of blood in her urine. As a result, Becky's obstetrician, Dr. Mark, delayed her release and prescribed Macrodantin, a bacteriostatic drug.

Becky's symptoms continued on August 7, 1982. Dr. Mark telephoned defendant Dr. John Bardole, a urology specialist. The latter feared a potentially life-threatening obstruction might be present in Becky's urinary tract.

Bardole ordered intravenous administration of a more aggressive bacterial drug, Mandol. Blood tests were instituted. Bardole also ordered an intravenous pyelogram (IVP) to be run the next morning, August 8, to determine whether Becky's urinary tract was obstructed.

An IVP is a diagnostic procedure in which an iodine-containing contrast material, in this case Reno-M-60, is injected into the patient's veins. X-rays then taken of the urinary tract, highlighted by the dye material, often enable the physician to determine whether it is obstructed.

Administration of an IVP is not without risk. A relatively small percent of individuals will suffer some discomfort, including flushing, hives, and nausea. More serious reactions include significant trouble breathing and a severe drop in blood pressure. The record made in this trial also indicates 1 person in 100,000 to 1 person in 150,000 will die as a result of an IVP, ¹ less often than fatal reactions to penicillin.

Before the IVP was administered neither Dr. Bardole nor defendant Dr. Jeff Watters, the only radiologist present in IMMC's radiology department on the Sunday morning Becky died, ever saw or talked to her. Two of the shift nurses who had attended Becky testified they separately told Becky she was to have an IVP and briefly described its purpose. One told Becky she could get a mild reaction, like hives, or a severe reaction, like difficult breathing. The other nurse described only the possibility of a mild reaction, "[j]ust the warmth of the dye, that sort of thing."

These discussions were noted in Becky's charts four days after her death, as "a late entry," at the request of a supervisor. Neither nurse was acting at the direction of a doctor in visiting with Becky about the IVP, neither nurse told her a severe reaction could include anaphylactic shock and death, and neither asked Becky if she consented to the procedure.

On the morning of August 8 Becky was taken to the radiology department for the IVP. A radiology technician testified she asked Becky some questions about allergies (apparently of some significance in reactions) and noted her responses on a "requisition slip," which later could not be found. This witness further testified Becky denied any allergies, although it ultimately appeared from her medical chart she had a bee sting allergy and there was evidence she had suffered from asthma as a child. This technician explained to Becky some of the more minor reactions to the dye that might occur, but did not tell Becky she could die as a result. Nor did the technician ask Becky if she consented to the procedure.

After some of the contrast material had been injected, Becky began to scratch her face. The technician halted the injection to check for further distress symptoms.

Determining no hives were present, the technician continued the procedure. Becky then complained of significant chest pains. The procedure was stopped at once and Dr. Watters was summoned. Despite substantial lifesaving measures, Becky soon died. An autopsy disclosed the cause of death to be anaphylactic shock directly induced by injection of the contrast material during the IVP. There was no obstruction in the urinary tract and the infection had been on the left side, not the right.

In this action the plaintiff, Becky's husband, the administrator of her estate, alleges Bardole and Watters failed to inform Becky about the possibility she could die from an IVP, and thus they failed to obtain her informed consent to the procedure. He also claims IMMC failed to adopt or carry out procedures sufficient to insure that Becky's informed consent was obtained before the IVP was administered.

At trial, plaintiff presented no expert testimony on the issue whether Bardole and Watters deviated from professional standards when they failed to inform Becky the administration of an IVP entailed a very remote risk of death. In the absence of such evidence the trial court, following our 1966 decision in Grosjean v. Spencer, 258 Iowa 685, 140 N.W.2d 139 (1966), granted the defendant doctors' motions for directed verdict. The court also granted IMMC's motion for directed verdict on the same ground, and apparently because the obligation to inform a patient of such risks is upon the doctor, not the hospital.

I. In this appeal we first address the issue whether the "patient rule" or the "professional rule" should apply in circumstances such as these. The two standards were identified and extensively discussed in Cowman v. Hornaday, 329 N.W.2d 422 (Iowa 1983), in which we applied the "patient rule" in a case of elective surgery. Id. at 424-27. We since have applied the same rule in Moser v. Stallings, 387 N.W.2d 599, 602 (Iowa 1986), an elective cosmetic surgery situation, and, apparently without it becoming an issue, in Van Iperen v. Van Bramer, 392 N.W.2d 480, 483 (Iowa 1986), a case that involved medication for a serious illness, not elective surgery.

As we noted in Cowman, the doctrine of informed consent arises out of the unquestioned principle that absent extenuating circumstances a patient has the right to exercise control over his or her body by making an informed decision concerning whether to submit to a particular medical procedure. Cowman, 329 N.W.2d at 424-25; see also Sard v. Hardy, 281 Md. 432, 439, 379 A.2d 1014, 1019 (1977); Smith v. Shannon, 100 Wash.2d 26, 29-30, 666 P.2d 351, 354 (1983). Thus, a doctor recommending a particular procedure generally has, among other obligations, the duty to disclose to the patient all material risks involved in the procedure. See Cowman, 329 N.W.2d at 425; Festa v. Greenberg, 354 Pa.Super. 346, 353, 511 A.2d 1371, 1373 (1986); Hook v. Rothstein, 281 S.C. 541, 547, 316 S.E.2d 690, 694-95 (1984).

The "professional rule" we followed in Grosjean recognized the treating doctor's duty to "disclose danger of which he has knowledge and the patient does not--but should have--in order to determine whether to consent to the risk." Grosjean, 258 Iowa at 694, 140 N.W.2d at 145 (quoting Watson v. Clutts, 262 N.C. 153, 159, 136 S.E.2d 617, 621 (1964)). At the same time, however, we left the question whether that duty had been satisfied to the medical profession when we held this was "primarily a question of medical judgment." Id. Because there was no expert testimony that the treating doctor "failed to do that which should have been done in ... advising ... plaintiff ... [a] jury question on negligence was not created." Id. We thus affirmed a judgment based on a directed verdict for the defendant doctor.

Recognizing the inherently paternalistic and authoritarian nature of the professional rule of disclosure, an expanding number of jurisdictions have rejected it for a judicially-fashioned standard. See, e.g., Canterbury v. Spence, 464 F.2d 772, 779-92 (D.C. Cir.), cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972); Cobbs v. Grant, 8 Cal.3d 229, 241-46, 104 Cal.Rptr. 505, 512-16, 502 P.2d 1, 8-12 (1972); Logan v. Greenwich Hosp. Ass'n, 191 Conn. 282, 287-93, 465 A.2d 294, 298-301 (1983); Crain v. Allison, 443 A.2d 558, 561-64 (D.C.1982); Goodwin v. Aetna Casualty & Sur. Co., 294 So.2d 618, 620 (La.App.1974); Sard v. Hardy, 281 Md. 432, 438-40, 379 A.2d 1014, 1019-20 (1977); Harnish v Children's Hosp. Medical Center, 387 Mass. 152, 153-57, 439 N.E.2d 240, 242-44 (1982); Plutshack v. University of Minnesota Hosps, 316 N.W.2d 1, 9 (Minn.1982); Reikes v. Martin, 471 So.2d 385, 392-93 (Miss.1985); Gerety v. Demers, 92 N.M. 396, 408-11, 589 P.2d 180, 192-95 (1978); Nickell v. Gonzalez, 17 Ohio St.3d 136, 138-40, 477 N.E.2d 1145 (1985); Scott v. Bradford, 606 P.2d 554, 557-60 (Okla.1979); Beauvais v. Notre Dame Hosp., 120 R.I. 271, 276, 387 A.2d 689, 691 (1978); Wilkinson v. Vesey, 110 R.I. 606, 627, 295 A.2d 676, 689 (1972); Peterson v. Shields, 652 S.W.2d 929, 931 (Tex.1983); Small v....