Ritz v. Florida Patient's Compensation Fund

• Decision Date: 04 August 1983
• Docket Number: No. 81-1180,81-1180
• Citation: 436 So.2d 987
• Parties: Marcella Sharon RITZ, Individually, by and through her legal guardians, Joseph L. Ritz and Margaret E. Ritz, Appellant, v. FLORIDA PATIENT'S COMPENSATION FUND, Florida Physicians Insurance Reciprocal, I. Basil Keller, M.D., and Keller & Sarnowski, M.D., P.A., d/b/a Melbourne Neurologic, Appellees.
• Court: Florida District Court of Appeals

Page 987

436 So.2d 987

Marcella Sharon RITZ, Individually, by and through her legal guardians, Joseph L. Ritz and Margaret E. Ritz, Appellant, v. FLORIDA PATIENT'S COMPENSATION FUND, Florida Physicians

Insurance Reciprocal, I. Basil Keller, M.D., and

Keller & Sarnowski, M.D., P.A., d/b/a

Melbourne Neurologic, Appellees.

No. 81-1180.

District Court of Appeal of Florida,

Fifth District.

Aug. 4, 1983.

Rehearing Denied Sept. 2, 1983.

Albert Yurko, Orlando, for appellant.

William B. Wilson of Maguire, Voorhis & Wells, P.A., Orlando, for appellees Florida Physicians Ins., Keller, M.D., Keller & Sarnowski, and Melbourne Neurologic.

James F. Page, Jr., of Gray, Harris & Robinson, P.A., Orlando, for appellee Florida Patient's Compensation Fund.

ORFINGER, Chief Judge.

Marcella Ritz, a mentally retarded woman, suing by and through her parents as legal guardians, appeals from a final judgment in favor of defendants in a malpractice case. Dr. Keller performed brain surgery known as a stereotactic amygdalotomy on Marcella. This is an operation in which electrodes or probes are inserted under x-ray observation through holes drilled in the skull, for the specific purpose of locating and destroying certain brain tissue which controls affected areas of the body. Marcella suffered paresis (slight paralysis or muscle weakness) and loss of voice volume after the surgery. She now has difficulty walking unassisted and can only whisper rather than talk. Her suit contended that the surgery was performed without consent, that any consent given was not informed consent, and that the operation had been negligently performed.

The jury determined the negligence and malpractice issues against Marcella. Although there was contrary evidence presented, we find no basis to overturn its verdict. After Marcella presented her case, the trial court directed a verdict against her on the issues of consent and informed consent, and Marcella contends that this was error warranting reversal.

In reviewing the entry of a directed verdict, we must consider the evidence and all allowable inferences in a light most favorable to the non-moving party. This is the test at the trial level, Levine v. Frank, 311 So.2d 708 (Fla. 3d DCA 1975), as well as the standard of review at the appellate level. McDonald v. McGowan, 402 So.2d 1197 (Fla. 5th DCA 1981). If, in applying this test, no view of the evidence could sustain a verdict for the party moved against, then the directed verdict was properly entered. Reams v. Vaughn, 435 So.2d 879 (Fla.1983) Tesher & Tesher, P.A. v. Rothfield, 387 So.2d 499 (Fla. 4th DCA 1980). Here, the father signed a consent to surgery. It is contended first that this is insufficient to constitute a valid consent because Marcella is an adult, and secondly, that it was not an informed consent. We will discuss those issues separately.

I. CONSENT BY PARENT

Marcella Ritz was thirty-two years old when this surgery was performed. She has been retarded both mentally and motor-wise since birth. Her condition worsened as she grew older and she began to show early signs of a severe form of epilepsy, experiencing both petit mal and grand mal seizures. She was hospitalized on several occasions in an effort to control these seizures with medication. Her parents gave the various consents to treatment. When she reached her mid-twenties in the early 1970's, her condition deteriorated even more. Her seizures became more frequent and her behavior began to be characterized by violence and rages. She came under Dr. Keller's care in 1974, and he attempted to treat her condition conservatively.

There was no conflict about Marcella's inability to understand or give her consent to this surgery. She had an I.Q. between 25 and 30. Her parents had cared for her all her life. They took her to various hospitals and doctors for treatment and signed consent forms for other procedures. They were also the parties who brought Marcella to Dr. Keller for treatment. Marcella's father signed the consent to surgery here.

Appellant argues that consent from Marcella should have been obtained prior to surgery and that her father's consent was of no effect because she was an adult and her father had not then been appointed her legal guardian. There seems to be no controlling precedent on this issue in Florida. The general rule in other jurisdictions is that a parent or next of kin may give an effective consent to medical treatment for a person who is not competent, without the necessity of being appointed a legal guardian. 70 C.J.S. Physicians & Surgeons § 48 (1951); Annot., 25 A.L.R.3d 1439 (1969).

In Farber v. Olkon, 40 Cal.2d 503, 254 P.2d 520 (1953), the California Supreme Court adopted the rule that when an adult child is incompetent and has no legally appointed guardian, the right to consent to medical treatment resides in the parent who has the legal responsibility to maintain such child. In Farber, a father had given his consent to electric shock treatments for his adult incompetent son. Like Marcella, the son became incompetent during his minority and his parents sought treatment for him in many homes, hospitals and sanitariums, and they continued to support him. He was thirty-one years old when he received the treatment complained about in his suit.

Florida courts have recognized the rule that a parent has a continuing legal duty to support an adult incompetent or otherwise dependent child. See Perla v. Perla, 58 So.2d 689 (Fla.1952); Kern v. Kern, 360 So.2d 482 (Fla. 4th DCA 1978). Section 743.07(2), Florida Statutes (1981), provides that a court may require parental support for a dependent child after it attains the age of majority. ¹ Support obligations for adult children mentally or physically disabled have been imposed on parents. See Fagan v. Fagan, 381 So.2d 278 (Fla. 5th DCA 1980); Fincham v. Levin, 155 So.2d 883 (Fla. 1st DCA 1963).

We agree with Farber v. Olkon, and hold that where an adult child is incompetent and has no legally appointed guardian, the right to consent to medical or surgical treatment resides in the parent who has the legal responsibility to maintain and support such child, not only in emergency situations, but where, as here, the treatment is deemed necessary to correct some ailment or disability. Therefore, the consent executed by Marcella's father was not invalid merely because he was not then officially her legal guardian.

II. INFORMED CONSENT

After Marcella came under Dr. Keller's care, the doctor recommended that she be sent to Sunland Center, hoping that the controlled environment and qualified personnel there might be of help. In the more than one-year period she was at Sunland, Marcie's condition worsened; her seizures became more severe and her behavior more uncontrollable. She was described as violent and psychotic. Stereotactic surgery as a potential solution to her problems had been discussed with Marcie's parents from 1974 until 1977. Dr. Keller was reluctant to consider such surgery until he had exhausted other modes of treatment. Both parents testified to Dr. Keller's reluctance to do the surgery until he could determine if medication could control the situation. There is no dispute that the surgery was recommended only after a course of conservative treatment over many years had proved unsuccessful. Neither is there any dispute that the surgery was needed or the proper procedure. Plaintiffs' expert witnesses testified that Marcella was a proper candidate for an amygdalotomy.

The sole point on which appellant urges us to find a jury issue on the question of informed consent is the alleged failure of Dr. Keller to tell the parents that death or paralysis was a potential risk of this surgery. Appellant urges that in the absence of such disclosure by the doctor, the patient or other person giving the consent is not fully informed of the risks and is thus incapable of making an informed decision. While we recognize that informed consent is necessary, we disagree for several reasons that a jury issue was made on that point.

The plaintiff offered no expert evidence as to the nature and extent of the material risks involved in the surgery, nor any expert testimony as to the disclosures of risk and complications which a reasonable surgeon would make under the same or similar circumstances. The operation performed here is neither rare nor unusual. The plaintiff's expert, Dr. Brown, had himself performed more than 150 amygdalotomies, and he referred to other surgeons who had performed many more. The surgery on plaintiff was performed in 1977, and Dr. Brown testified that surgeons had been performing stereotactic surgery for about 28-30 years. He testified that the amygdalotomy was a well-recognized surgical procedure; that the surgery ordinarily produced few side effects, and that paresis and loss of voice were not usual or customary results of this surgery.

The characterization in the dissent of Dr. Keller as "inexperienced" is unfair in the light of the record. He is a trained, experienced neurosurgeon, certified as qualified by the medical specialty board in his field. He has had extensive training in stereotactic surgery, has taught the procedure to other doctors, and had performed more than 80 such procedures before he operated on Marcie. He had not operated on the particular area of the brain, the amygdala, because he never had a patient who needed this specific relief, but had performed other operations in "deep brain" areas using the same equipment and the same surgical techniques as were used here.

In order to submit to a jury the issue of whether and to what extent specific risks of surgery should be disclosed to a patient in securing the patient's informed consent to the procedure, evidence is required as to the nature and extent of the risks and of the standard prevailing in the medical community, i.e., whether a reasonable medical practitioner in the community would make such disclosure under the same...