Perkins v. Windsor Hosp. Corp.

Decision Date01 December 1982
Docket NumberNo. 387-80,387-80
Citation455 A.2d 810,142 Vt. 305
PartiesCarl PERKINS, Executor of the Estate of Dorothy Perkins, and Carl Perkins, Individually v. WINDSOR HOSPITAL CORP. d/b/a Mt. Ascutney Hospital and Health Center, Dale Gephart, M.D. and Kelley's Drugstore, Inc.
CourtVermont Supreme Court

Gary Randall Brown, Woodstock, for plaintiffs-appellants.

Kiel & Boylan, Springfield, Clifford M. Miller, Springfield (on the brief), for defendants-appellees.

Theriault & Joslin, P.C., Montpelier, for defendant-appellee Kelley's Drugstore.

BARNEY, C.J., and BILLINGS, HILL, UNDERWOOD and PECK, JJ.

BARNEY, Chief Justice.

This is a medical malpractice action. In the fall of 1976, plaintiff Dorothy Perkins underwent an elective cholecystectomy at Mt. Ascutney Hospital in Windsor, Vermont. Prior to her release the defendant physician issued plaintiff a prescription for the drug Flagyl. 1 The drug was prescribed in an effort to discover the cause of atypical cells, disclosed in plaintiff's routine pap smear test.

Plaintiff filled the prescription at the defendant pharmacy in Windsor, Vermont. Some time later, according to plaintiff's testimony, she ingested the initial prescribed dosage of Flagyl and suffered severe adverse reactions. She was rushed to the hospital emergency room where she was treated for chest pains and shortness of breath. Following discharge, plaintiff continued to experience chest pains and related medical problems.

In September, 1978, plaintiff brought suit against the defendant physician alleging he was negligent in having prescribed Flagyl, and that he had failed to obtain plaintiff's informed consent to the Flagyl treatment. 2 The complaint also named the hospital as a party defendant, apparently on the basis of respondeat superior. Plaintiff filed an additional complaint in August, 1979, alleging that the defendant pharmacy negligently prepared, dispensed and labelled the Flagyl prescription.

The defendant hospital's motion to dismiss the complaint for failure to state a claim as to it was granted, and the case against the physician and pharmacy was tried before a jury. The jury returned a general verdict for the defendants and answers to written interrogatories finding neither defendant negligent. Plaintiff appeals from the ensuing judgment, raising numerous grounds for reversal.

I. Defendant Physician
A. Informed Consent

Plaintiff first claims in her brief that the trial court erred in refusing her request to charge 12 V.S.A. § 1909, Vermont's informed consent statute. Count II of plaintiff's original complaint alleged that the defendant physician failed to obtain plaintiff's informed consent to the treatment in question. She also submitted proposed instructions, seeking to have the court give a charge on § 1909. Moreover, plaintiff complied with the requirement of V.R.C.P. 51(b) that the party "[state] distinctly the matter to which he objects and the grounds of his objection." The issue has therefore been preserved for appellate review. Sanville v. Williams, 138 Vt. 498, 501, 418 A.2d 860, 862 (1980); Palmisano v. Townsend, 136 Vt. 372, 374-75, 392 A.2d 393, 395 (1978).

The standards pertaining to informed consent established by this Court in Small v. Gifford Memorial Hospital, 133 Vt. 552, 557, 349 A.2d 703, 706-07 (1975), have, since that decision was rendered, been modified by legislation. 12 V.S.A. § 1909, entitled: "Limitation of medical malpractice action based on lack of informed consent," became effective on April 7, 1976. 1975, No. 250 (Adj.Sess.), § 3. Section 1909 reads in pertinent part:

(a) For the purpose of this section "lack of informed consent" means:

(1) The failure of the person providing the professional treatment or diagnosis to disclose to the patient such alternatives thereto and the reasonably foreseeable risks and benefits involved as a reasonable medical practitioner under similar circumstances would have disclosed, in a manner permitting the patient to make a knowledgeable evaluation ....

It is against this statutory language that the trial judge's instructions must be measured.

It is clear from the transcript that plaintiff's claim of lack of informed consent centered around (1) whether the defendant physician provided plaintiff with any warning concerning the dangers of taking Flagyl after ingesting alcoholic beverage; and (2) whether, assuming such a warning was given, it was adequate in light of plaintiff's infirmities. 3 Although the trial judge charged extensively on the elements of medical malpractice, see 12 V.S.A. § 1908, he refused plaintiff's request to charge the elements of informed consent as set forth in § 1909 stating: "There is no competent medical evidence in the record that would support that charge." We disagree with this assessment of the state of the evidence below.

The cornerstone of plaintiff's suit was the claim that she had not knowingly and intelligently consented to Flagyl treatment because she had not been made aware of the reasonably foreseeable risks, in particular the potential adverse reaction when combined with alcohol. In response to this allegation, the defendant physician testified that although he did not recall actually warning plaintiff of this risk, it nevertheless was his "custom" to give such an oral warning. Plaintiff's expert testified that even if the physician had given his customary warning it would not have provided plaintiff with sufficient information concerning the dangers to permit plaintiff to make a knowledgeable evaluation to undergo the treatment.

This testimony in itself was enough to require that informed consent be fully charged. See 12 V.S.A. § 1909(e). Instead, while the charge as given did contain some of the elements of informed consent, they were sparse at best, and considered in context with the charge as a whole, did nothing by express reference to this issue or otherwise, to place the question before the jury. Even assuming these references might have alerted a person trained in the law of the subject, we conclude they were not sufficient, either as a directive to a jury of laymen that the factual issue was theirs to determine, or as providing a clear understanding of the elements for their consideration. Accordingly, we hold that plaintiff was effectively deprived of her right to have the jury determine the adequacy of the information furnished by the physician.

B. Medical Negligence

Count I of plaintiff's complaint alleged that the physician's decision to prescribe Flagyl to plaintiff constituted professional medical negligence. See 12 V.S.A. § 1908. The jury disagreed, answering a written interrogatory with the finding of no negligence on his part.

Plaintiff asserts, however, that judgment in favor of the defendants as to the medical negligence claim must be reversed because the trial court erred in using assumption of risk language when instructing the jury on the defendants' affirmative defense of comparative negligence. In Sunday v. Stratton Corp., 136 Vt. 293, 304, 390 A.2d 398, 404 (1978), we stated that "use of assumption of risk language is irrelevant and confusing in a jury instruction on comparative negligence." The parties were entitled to a jury free from irrelevancies and possible confusion. While mindful that, under V.R.C.P. 51(b), the procedures for preserving objections to jury instructions are limited by requiring an objection "before the jury retires to consider its verdict," Collette v. Bousley, 141 Vt. 373, 374, 449 A.2d 936, 937 (1982), we nonetheless agree with plaintiff that the instruction given was erroneous. In charging the jury, the trial court blended the instructions, creating an overlap between the negligence of the doctor in prescribing Flagyl in the first place, the warnings, if any, to Mrs. Perkins of potential harmful side effects and her assumption of risk. The interrogatories given the jury further emphasized this meld by asking only if Dr. Gephart was negligent, and not separating the two causes of action. Thus, while ordinarily the mere inclusion of the assumption of risk language might not have been reversible error, and this is particularly true here since it was not formally objected to as required by V.R.C.P. 51(b), it becomes so from the unfortunate interweaving of those concepts.

In other words, the plaintiff correctly noted his objections to, among other things, the failure to give an informed consent instruction and the confusion of contributory negligence with the alleged warnings by the doctor or pharmacist. Formal objection was not made specifically to the words "assumed the risk" included in the negligence charge. Thus, under our long-established rule, review of the irrelevant assumption of risk language is not undertaken except to prevent a failure of justice. See McCrea v. State, 138 Vt. 517, 519-20, 419 A.2d 318, 319 (1980); 2B W. Barron & A. Holtzoff, Federal Practice and Procedure § 1106 (C. Wright ed. 1961). As we unanimously agree, the lack of an informed consent charge was error and was objected to. Unlike the minority opinion, however, we will not preclude ourselves from examining the totality of the charge merely because there was no formal objection to three irrelevant words.

A brief examination of the charge given highlights our concerns and supports our conclusion that the error requires reversal. The court told the jury to turn their attention "to the specific legal principles which [they] must apply in determining whether or not the defendant, Doctor Gephart, was or was not negligent." The explanation of the legal principles, however, immediately became muddled:

The claim of negligence against Doctor Gephart relates to his act of prescribing the drug Flagyl. Your first task is to decide what standard of care is required of physicians in Doctor Gephart's type of practice in this general area with respect to the need to warn when prescribing Flagyl for this purpose you may and should consider the...

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