Roberson v. Menorah Medical Center

• Decision Date: 04 September 1979
• Docket Number: No. KCD,KCD
• Citation: 588 S.W.2d 134
• Parties: Delois ROBERSON and James Roberson, Plaintiffs-Appellants, v. MENORAH MEDICAL CENTER, Defendant-Respondent. 30260.
• Court: Missouri Court of Appeals

Page 134

588 S.W.2d 134

Delois ROBERSON and James Roberson, Plaintiffs-Appellants, v. MENORAH MEDICAL CENTER, Defendant-Respondent.

No. KCD 30260.

Missouri Court of Appeals, Western District.

Sept. 4, 1979.

Motion for Rehearing and/or Transfer to Supreme Court Denied

Oct. 1, 1979.

Application to Transfer Denied Nov. 14, 1979.

Elwyn L. Cady, Jr., Independence, for plaintiffs-appellants.

Robert M. Sommers and Neal E. Millert, Kansas City, for defendant-respondent.

Before DIXON, P. J., and SOMERVILLE and KENNEDY, JJ.

KENNEDY, Judge.

At the conclusion of plaintiff's evidence in an action for damages against defendant Menorah Hospital, the court sustained defendant's motion for a directed verdict. From the ensuing judgment for defendant, plaintiff has prosecuted this appeal. ¹

Finding, as did the trial court, that plaintiff's evidence failed to make a submissible case against the defendant, we affirm the judgment.

Plaintiff's case consisted of her own testimony and that of her husband, who testified briefly to her continuing disabilities, and medical records. There was no expert testimony.

Facts.

Plaintiff Delois Roberson had consulted Dr. Jacobs with complaints of vaginal bleeding and intercourse pain. Dr. Jacobs told the plaintiff she might need a "D and C", a "scraping of the womb". He suggested Menorah Hospital, and he recommended Dr. Mooney to perform the operation. Plaintiff entered Menorah Hospital. Dr. Mooney saw the plaintiff three or four times before the surgery, and recommended removal of the uterus, because she had "tumors". Plaintiff agreed to the surgical removal of the uterus. Dr. Mooney told her she would be in the hospital about five days and then would spend about six weeks recuperating. Dr. Jacobs also continued to call upon plaintiff in the hospital after Dr. Mooney had entered the case.

The surgery, described as a "vaginal hysterectomy" was performed on March 25, 1974. She apparently was discharged from the hospital on April 1. She testified she had not improved when she left the hospital.

She continued to have difficulty after her return home. She went back to Dr. Mooney twice, but according to her testimony he gave her no treatment. Dr. Mooney referred her to Dr. Wise. Dr. Wise first saw her on April 15. He discovered she had "a leakage", gave her some pain pills and put a catheter in her. The leakage was found to result from a vesicovaginal fistula, which allowed the leakage of urine from the bladder into the vagina. The Menorah clinical resume said the leakage had shown up three days before the April 15 examination. On April 28 she returned to Menorah Hospital, still under the care of Dr. Wise. This time she underwent an operation described in the hospital records as "cystocopy with retrograde and drainage of urinary extravasation". "And he explained to me that he was trying to stop the leakage, this hole, or whatever", the plaintiff said. Plaintiff described the second operation as follows: ". . . He had made an incision in my side and put a tube there for my urine to pass." She was discharged on May 1.

Plaintiff was hospitalized yet a third time, on May 30. On this occasion she underwent major surgery "because the tube that was there . . . wasn't healing because I was having the IVP and he put me back in and did major surgery to repair it". She was discharged on June 8, 1974. The condition for which the April and May surgeries were performed was the vesicovaginal fistula. The condition was apparently corrected by the May 30 surgery.

Plaintiff testified that after the operation and still at the time of the trial, which began April 17, 1978, she was not able to lift anything too heavy. She was unable to sit too long or stand for a length of time because she got gas in her left side. She was aided in her housework by her husband, her three sons and sometimes her mother. Before the first operation she had been able to do lifting at home and at work. In July after the operation, plaintiff returned to her work at Western Electric where she was employed as a "process checker", and continued to work there until August of 1975 when she was laid off due to a work shortage.

Plaintiff's claim against Dr. Mooney, who had died before trial, had been settled for $4,500 and dismissed.

Duty of hospital to advise patient of risks of surgery and alternatives.

We look to appellant's brief to find that she believes her evidence made a prima facie case against defendant hospital "because of a lack of informed consent to surgery". The surgery to which she says she gave no informed consent was the vaginal hysterectomy, to which we gather she attributes the vesicovaginal fistula which necessitated the two following surgical operations and the difficulties and disabilities she described in her testimony. She claims it was the duty of the hospital to explain to her the risks involved in the first surgery, the possibility of complications and possible alternative methods of treatment.

The hospital, on the other hand, claims that it was under no such duty as the plaintiff attempts to place upon it.

It becomes necessary to state the evidence of the hospital's role in securing the written consent. We will use plaintiff's words with some editing:

Plaintiff was in the hospital in the surgical ward on the evening before the scheduled surgery. Plaintiff's husband came to visit her and plaintiff thought he had to sign the consent. A friend of hers who had had the same operation had told plaintiff that her husband had been required to sign the consent. Plaintiff called the nurse and told her that her husband was there to sign the papers. The nurse said he didn't have to sign them. The nurse brought in the consent form, left it and went back out. Plaintiff read it and it said "hysterectomy", and plaintiff thought that meant removing everything. Plaintiff went out to the nurses' station and told the nurse, "I'm not having everything removed, just the uterus". Plaintiff did not read the entire consent form. The word "hysterectomy" struck her; it was standing out. The nurse said, "Well, that's the way it's worded", and plaintiff said, "Well, how is he supposed to know he's not supposed to take everything, when it says 'hysterectomy' and I'm only having one thing removed?" The nurse replied, "The doctor knows, it's on his chart". Plaintiff signed the consent. Plaintiff did not think she read any other portion of the permit than "vaginal hysterectomy". Nobody read the form to her and nobody made any explanation of any other material in that form. ²

After this testimony from the plaintiff, her counsel asked her whether she would have permitted the surgery "if it had been explained that there were certain risks to this vaginal hysterectomy, as the paper stated, 'risks involved, possibility of complications and possible alternative methods of treatment' ". Plaintiff replied that she would not have permitted the surgery.

Plaintiff introduced into evidence minutes of meetings of the medical records committee of the defendant hospital, held June 20 and July 14, 1969, in which patient consent and waiver forms were under consideration. The committee apparently had under consideration at that time a number of forms for patients' consents and waivers. Pertinent to the form signed by the plaintiff are the following excerpts from those minutes: "In the permit for surgery layman language it was pointed out that a nurse would be filling this in rather than the physician. The question also arose as to how the physician would fulfill the requirements of telling the patient of the risks involved . . . It was also recommended that these forms be presented to various departments, not just the chairman, for their approval." (Italics ours.) We find in the minutes of the medical records committee meetings no other references to any form for consent to surgery.

There is no evidence in this record giving rise to a duty on the part of the defendant hospital to inform the patient of risks attendant upon this surgical procedure, or to inform her of alternative methods of treatment. Plaintiff was the patient of Dr. Jacobs and Dr. Mooney. It was Dr. Mooney who recommended the vaginal hysterectomy and who discussed it with plaintiff. There is no suggestion in the evidence that either physician was an agent of the hospital.

The presentation to the patient of risks involved in prospective surgery cannot but call for some very nice judgments. On the one hand the patient is entitled to such information as he needs to make an intelligent decision and to give an informed intelligent consent. And yet the patient may have his apprehensions unnecessarily and unduly heightened if risks are unwisely presented, leading him to an imprudent choice. Risks must be placed in perspective. The one dealing with the patient at this point must have knowledge of the patient his temperament, his intelligence, his mental condition and his physical condition. He must also have a knowledge of the surgery itself its risks, whether imminent or remote, and whether it is pressing, deferrable or optional. He must know the availability of conservative methods of treatment, if any, and their promises for success as compared to the surgery. All these factors must be placed in the equation. The physician alone is equipped to make the delicate judgments called for. Fiorentino v. Wenger, 19 N.Y.2d 407, 280 N.Y.S.2d 373, 227 N.E.2d 296, 300 (1967).

We speak in general terms, of course, recognizing that the hospital may in some cases have a responsibility in this area. See Gridley v. Johnson, 476 S.W.2d 475, 483-485 (Mo.1972); Fiorentino v. Wenger...