Revord v. Russell

• Decision Date: 26 March 1980
• Docket Number: No. 2-877A305,2-877A305
• Parties: Mary Kay REVORD, By Her Father and Next Friend, Paul H. Revord, Plaintiff-Appellant, v. John R. RUSSELL, M.D., Defendant-Appellee.
• Court: Indiana Appellate Court

Page 763

401 N.E.2d 763

Mary Kay REVORD, By Her Father and Next Friend, Paul H Revord, Plaintiff-Appellant, v. John R. RUSSELL, M.D., Defendant-Appellee.

No. 2-877A305.

Court of Appeals of Indiana, Fourth District.

March 26, 1980.

Thomas E. Alsip, Indianapolis, for plaintiff-appellant.

John P. Price, Jon D. Krahulik, Bingham, Summers, Welsh & Spilman, Indianapolis, for defendant-appellee.

MILLER, Presiding Judge.

Plaintiff Appellant Mary Kay Revord, by her father and next friend, Paul Revord, instituted this suit against Dr. John Russell on a theory of medical malpractice, alleging Dr. Russell breached his duty by failing to inform the Revords of the risks involved in surgery and such failure was the proximate cause of Mary's injury. The Revords bring this appeal from the trial court's removal of the case from the jury after sustaining Russell's motion for judgment on the evidence.

We affirm.

In 1965 Mary Kay Revord, then age 21/2, was operated on by Dr. Sayers at the Ohio State Medical Center to remove a tumor in her cerebellum. Not all of the tumor was removed by the surgery or subsequent cobalt treatments. Nonetheless, Mary progressed well and after eight years had only minor impairments. On September 6, 1973 immediately after Mary's family moved to Indiana, she was brought to defendant Dr. John Russell, a neurosurgeon, for an examination. He took her medical history, received records from Dr. Sayers and performed a neurological examination. Tests run at Methodist Hospital in Indianapolis confirmed his belief in the recurrence of her brain tumor. Surgery was performed on September 25, 1973. Russell re-opened Mary's skull and re-drained the tumor, it being too large to remove. However, during the closing Mary's heart stopped. Even though she was resuscitated within 20 to 45 seconds she never recovered consciousness and remained comatose at the time of the trial four years later.

Dr. Russell, called as a witness by the Revords, testified he believed he talked with Mary's parents about removing or draining the tumor in surgery, such technique being essentially the same as employed earlier by Dr. Sayers. At trial he was not sure of what the exact substance of the conversation had been (since the parents had already been through a similar operation he admits he may not have gone deeply into an explanation) but believed he would have told them that:

1. Mary had a recurrent tumor.

2. The tumor could either be solid or cystic.

3. Cystic tumors have a better prognosis.

4. The tumor could not be removed in its entirety since Dr. Sayers observed it growing into the brain stem.

5. If the tumor were cystic, he would evacuate the liquid contents of the cyst and relieve pressure on the brain; and if it were solid, he would remove as much as possible and avoid damage to the brain as much as possible.

6. Mary's eight year survival period after the first operation was a good indication that she might have a lengthy survival period after this second operation.

7. He would operate in the back part of the head where the surgery had been done before; he would go in and expose the tumor.

Russell testified he saw no alternative to surgery for Mary. He testified he performed substantially the same operation as performed by Dr. Sayers and any other neurosurgeon including Dr. Sayers would have performed the present operation in a similar manner. Russell also stated he did not recall ever seeing or hearing of a patient who reacted as Mary did to this type of surgery. No other medical expert testified at the trial.

Mary's parents testified they were not informed before the surgery of any possible risks Mary might incur in submitting to the operation. However, they testified they had acquainted themselves with Mary's illness over the years and knew the surgery to be performed was substantially the same operative procedure employed in Mary's first operation. Further, they knew the procedure was serious and, as in all surgery, there existed a risk of death.

The court at the close of Revords' evidence entered judgment for Russell as follows:

At the close of the Plaintiff's evidence, the Defendant has moved for judgment on the evidence.

The Plaintiff does not contend, nor was evidence introduced that the Defendant was guilty of negligence in the performance of the operation on September 25, 1973.

The only issue is whether the Defendant was negligent in failing to adequately inform the Plaintiffs of the nature and danger of their daughter's surgery. . . .

There is no need for a physician to disclose risks that are likely to be known by the average patient or that are in fact known to particular patients because of past experiences with the condition. In this case, the Plaintiffs were aware of the type of surgery and the general dangers involved. They were aware that without the surgery their daughter had little chance for life. To demand of the surgeon that he explore with the parents every adverse possibility of an operation, including one unknown to the experience of the surgeon, himself, demands unreasonably that the surgeon be able to predict or guarantee results.

The Revords contend the trial court erred since conflicting evidence existed as to the content of the conversations between Dr. Russell and Mary's parents concerning the disclosure of the risks of surgery. The Revords go no further with the argument than to note the conflict. Although we acknowledge the existence of such conflict, a judgment on the evidence is proper "if there is not substantial evidence or reasonable inference to be adduced therefrom to support an essential element of the claim." Huff v. Traveler's Indemnity Co., Inc. (1977) 266 Ind. 414, 363 N.E.2d 985, 990; Ind.Rules of Procedure, Trial Rule 50. We hold the Revords' evidence lacks two essential elements necessary to make a prima facie case: (1) there was no expert evidence to establish what risks Russell had a duty to disclose, and (2) there was no evidence of proximate cause.

An action prefaced on the doctrine of informed consent is now considered as one based on negligence, not battery, an intentional tort, see Natanson v. Kline (1960) 186 Kan. 393, 350 P.2d 1093, modified, 187 Kan. 186, 354 P.2d 670; Prosser, Torts (4th ed. 1971) 165, 166. Thus, as in any negligence case a plaintiff must show a duty owed to him and a breach of that duty (by falling below the set standard of care) which proximately causes a compensable injury. Petroski v. Northern Indiana Public Service Co. (1976) Ind.App., 354 N.E.2d 736, 741; 21 I.L.E. Negligence § 2, p. 262.

The duty owed the Revords by Russell is established in the area of informed consent as a matter of law.

It is clear that Indiana must recognize the duty of a physician to make a reasonable disclosure of material facts relevant to the decision which the patient is requested to make. Natanson, supra ; Bang v. Charles T. Miller Hospital (1958) 251 Minn. 427, 88 N.W.2d 186; Cobbs v. Grant (1972) 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1. The duty arises from the relationship between the doctor and patient and is imposed as a matter of law, as are most legal duties. Miller v. Griesel, et al. (1974), 261 Ind. 604, 308 N.E.2d 701.

Joy v. Chaw (1978) Ind.App., 377 N.E.2d 670, 676-77.

Standard of Care

The standard by which Russell's actions were to be judged is also pre-determined. To fulfill his duties, Russell was obligated to make "a reasonable disclosure of material facts relevant to the (Revords') decision." Id. at 676. As described in Cobbs v. Grant, supra, 502 P.2d at 11:

(T)he patient's right of self decision is the measure of the physician's duty to reveal....