Sard v. Hardy

• Decision Date: 09 November 1977
• Docket Number: No. 11,11
• Citation: 281 Md. 432,379 A.2d 1014
• Parties: , 89 A.L.R.3d 12 Katie Sue SARD et vir. v. Erving D. HARDY.
• Court: Maryland Court of Appeals

Page 432

281 Md. 432

379 A.2d 1014, 89 A.L.R.3d 12

Katie Sue SARD et vir. v. Erving D. HARDY.

No. 11.

Court of Appeals of Maryland.

Nov. 9, 1977.

Lawrence P. Pinno, Jr., Joppa (Joseph F. Lentz, Jr. and Lentz & Hooper, Joppa, on the brief), for appellants.

George J. Goldsborough, Jr., Easton (Goldsborough, Franch & Collett, Easton, on the brief), for appellee.

Argued before MURPHY, C. J., and SINGLEY, ^* SMITH, DIGGES, LEVINE and ORTH, JJ.

LEVINE, Judge.

The central issue on this appeal is whether appellants, Katie Sue Sard and David Penn Sard, Jr., presented legally sufficient evidence to permit a jury to decide whether appellee, Dr. Erving D. Hardy, a physician specializing in obstetrics and gynecology, was negligent in failing to advise the Sards that a tubal ligation, the sterilization operation which he performed on Mrs. Sard, might not succeed in preventing future pregnancies and in failing to disclose alternative means of achieving the desired result. Resolution of this question requires that we address for the first time the so-called doctrine of informed consent. We also consider here the question whether recovery may be allowed against a physician for breaching an express warranty of therapeutic result.

Appellants commenced this action in the Circuit Court for Talbot County, charging appellee with negligent performance of a bilateral tubal ligation upon Mrs. Sard in 1968. Specifically, the Sards alleged that appellee negligently failed to advise them that the surgical procedure employed by him was not absolutely certain to succeed and that appellee failed to apprise the Sards of the potential results of the operation and alternative methods of sterilization, thereby precluding appellants from giving their informed consent. At the close of their case-in-chief, the trial judge directed a verdict for appellee on all counts. ¹ A divided Court of Special Appeals affirmed in Sard v. Hardy, 34 Md.App. 217, 367 A.2d 525 (1976). We then granted certiorari, and for reasons that follow, we reverse.

I

In 1965, appellant Katie Sue Sard became pregnant for the first time. Toward the end of this pregnancy, she developed a dangerous condition known as eclampsia. ² As a consequence, Mrs. Sard experienced a series of severe convulsions necessitating the premature delivery of her child by Caesarean section to save the lives of mother and child. The baby was dead at birth.

Mrs. Sard first consulted appellee in October, 1966, when she was pregnant with her second child. A normal, healthy baby was delivered by Caesarean section early in 1967. Later that year, Mrs. Sard became pregnant for a third time, and again appellee supervised her pre-natal care. Sometime prior to the birth of her third child, Mrs. Sard and appellee discussed the possibility of sterilization. At trial, Dr. Hardy denied having warned Mrs. Sard that a future pregnancy would imperil her health, but admitted to having signed a consultant's report prior to the operation that contained the following statement:

"The patient has been personally examined by me and I feel that future pregnancies would endanger her life. Sterilization is recommended for the following reason."

Appellee testified that he "felt this was a reasonable conclusion" and signed because of Mrs. Sard's prior experience with eclampsia and her decision "that she no longer wanted children."

As for Mrs. Sard, she testified to having been advised by appellee that she was about to undergo her third Caesarean delivery and that "usually people that have caesarean sections don't have no more than three." She further testified that since she had experienced severe complications in her earlier pregnancy, appellee had offered her three options: sterilization, oral contraception, or the use of an intrauterine device. Mrs. Sard also stated that she specifically informed appellee that she did not want more children because she had "lost a lot of blood" and "couldn't afford any more children." Mrs. Sard's husband testified that appellee never mentioned the possibility of vasectomy. Although unable to recall whether he had mentioned this latter alternative to appellants, Dr. Hardy testified that generally it was his practice to do so.

It is undisputed that appellee never informed appellants of the various methods of performing a tubal ligation that were available to him. He further testified that it was good medical practice for a physician merely to inform the patient of the fact that a tubal ligation was to be done without discussing the details of the surgical procedures necessary to accomplish sterilization. Dr. Hardy stated that the final choice as to which of the various techniques to employ is generally made by the surgeon only after he has incised the abdomen and visualized the condition of the uterus.

Evidence at trial revealed that there were essentially six methods in common use in the United States employed to effectuate female sterilization by tubal ligation: Madlener technique; Pomeroy technique; Irving method; Uchida method; Aldridge method; and Erlich method. Evidence adduced through Dr. Hardy, who was called as an adverse witness by appellants, indicated that the Madlener technique used by appellee on Mrs. Sard, while the simplest to accomplish, had a 2% risk of failure when performed at the time of Caesarean section delivery. The Uchida and Irving methods, on the other hand, showed fail-rates of less than 1/10 of 1% under similar circumstances. Dr. Hardy acknowledged that he had never discussed the various methods with appellants prior to the operation. Nor did he explain to Mrs. Sard that the fail-rates for all of the procedures diminished dramatically when performed at some time other than Caesarean birth, thereby effectively denying her the option of undergoing sterilization at a later date with a correspondingly greater likelihood of success. Mrs. Sard testified that appellee never informed her that the operation might fail to eliminate completely the possibility of future pregnancy. Moreover, she testified, appellee had affirmatively assured her before the operation that she would not be having any more children. Despite this assurance and the performance of the tubal ligation, Mrs. Sard became pregnant for the fourth time, and in January, 1971, delivered her third healthy child by an uneventful Caesarean section.

Some 10 to 15 minutes before being wheeled into the delivery room for the Caesarean delivery and tubal ligation, Mrs. Sard had been handed a standard hospital consent form, which she signed without reading. In part, it provided:

"I/We understand what is meant by sterilization and I/We understand that if this operation is successful, the above named patient will be unable in the future to produce children, but I/We understand that an operation intended to effect sterilization is not effective in all cases."

Previously, Mr. Sard, whose testimony revealed that he was functionally illiterate, had signed the same form. In directing a verdict for appellee on the informed consent count, the trial court ruled that the issue was conclusively settled against appellants, since, by signing the consent form, they had acknowledged their understanding that the sterilization procedure was not effective in all cases.

The Court of Special Appeals did not reach the issue decided by the trial court. ³ The majority first embraced the doctrine of informed consent declaring that a physician is under a "duty to make an adequate disclosure of substantial facts which would be material to the patient's decision." 34 Md.App. at 231, 367 A.2d at 533. The court then went on to hold as a matter of law that a 2% risk of failure inherent in the Madlener method of tubal ligation would not be material to a reasonable person in the position of the patient here in deciding whether or not to undergo elective sterilization. 34 Md.App. at 235, 367 A.2d 525. The court also suggested that appellants' failure to produce evidence that Mrs. Sard would have refused the operation had she known there was a chance of failure might also have been a sufficient ground on which to sustain the directed verdict. Id.

II

The doctrine of informed consent, which we shall apply here, follows logically from the universally recognized rule that a physician, treating a mentally competent adult under non-emergency circumstances, cannot properly undertake to perform surgery or administer other therapy without the prior consent of his patient. Mohr v. Williams, 95 Minn. 261, 104 N.W. 12, 15 (1905); see McClees v. Cohen, 158 Md. 60, 62-63, 148 A. 124 (1930); Powell, Consent to Operative Procedures, 21 Md.L.Rev. 189 (1961). In order for the patient's consent to be effective, it must have been an "informed" consent, one that is given after the patient has received a fair and reasonable explanation of the contemplated treatment or procedure. Kenny v. Lockwood, (1932) 1 D.L.R. 507, 520 (Ont.1931).

The fountainhead of the doctrine of informed consent is the patient's right to exercise control over his own body, at least when undergoing elective surgery, by deciding for himself whether or not to submit to the particular therapy. As Judge Cardozo said for the New York Court of Appeals in Schloendorff v. Society of N. Y. Hospital, 211 N.Y. 125, 105 N.E. 92, 93 (1914), "(e)very human being of adult years and sound mind has a right to determine what shall be done with his own body." Other courts have bottomed the physician's duty to disclose on the fiducial quality of the physician-patient relationship. Miller v. Kennedy, 11 Wash.App. 272, 522 P.2d 852, 860 (1974), aff'd per curiam, 85 Wash.2d 151, 530 P.2d 334 (1975); Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520, 524 (1962). Whatever its source, the doctrine of informed consent takes full account of the probability that unlike the physician, the patient is untrained in medical science, and therefore depends completely on the trust and skill of his physician for the...