Scalere v. Stenson

• Decision Date: 07 July 1989
• Docket Number: No. B026033,B026033
• Citation: 260 Cal.Rptr. 152,211 Cal.App.3d 1446
• Court: California Court of Appeals Court of Appeals
• Parties: Elizabeth Rae SCALERE, et al., Plaintiffs and Appellants, v. Robert E. STENSON, M.D., Defendant and Respondent.

Page 152

260 Cal.Rptr. 152

211 Cal.App.3d 1446

Elizabeth Rae SCALERE, et al., Plaintiffs and Appellants, v. Robert E. STENSON, M.D., Defendant and Respondent.

No. B026033.

Court of Appeal, Second District, Division 7, California.

July 7, 1989.

Paul F. Moore, Pasadena, and Paul F. Moore II, Los Angeles, for plaintiffs and appellants

Tuverson & Hillyard and Thomas E. Tootell, Los Angeles, for defendant and respondent.

FRED WOODS, Associate Justice.

In this medical malpractice case appellant ¹ claims instructional error regarding duty to disclose. We affirm.

PROCEDURAL AND FACTUAL BACKGROUND

On June 25, 1980, appellant, then 46 years old, underwent a diagnostic surgical procedure, cardiac catheterization (an angiogram) at the Hospital of the Good Samaritan. Respondent, a cardiologist specializing in such procedures, performed the angiogram on the brachial artery of appellant's right arm.

After surgery appellant reported pain and discomfort in her right arm. There was swelling and little, if any, pulse.

Respondent examined and tested appellant's right arm and concluded that it was progressing satisfactorily. He therefore neither told appellant about nor recommended any further diagnostic tests or therapy.

Approximately one year later appellant underwent a saphenous vein bypass of her right brachial artery with resultant damage.

On August 18, 1981, appellant filed a complaint alleging medical negligence. The defendants were respondent, another doctor, and the hospital.

On December 11, 1986, a jury returned their verdict finding that none of the defendants were negligent in their "medical, hospital, nursing, diagnosis, care and treatment of plaintiff."

After filing the notice of appeal, appellant abandoned the appeal as to the other doctor and the hospital.

CONTENTIONS

Appellant contends:

1. The court erred in not instructing on duty to disclose.

2. The court abused its discretion in excluding a patient information brochure.

3. The court abused its discretion in limiting the testimony of Dr. Phillip Marcus.

DISCUSSION

1. The court erred in not instructing on duty to disclose.

Although appellant's complaint only alleged ordinary medical negligence ("negligently examined, diagnosed, prognosed, cared for, treated, and performed surgical procedures upon the body and person of plaintiff") at trial appellant sought to establish a second negligence theory, viz., that respondent had failed to disclose "material facts necessary for [appellant] to properly evaluate her condition and seek appropriate post -operative care." (Emphasis added.)

This duty to disclose theory, and appellant's requested jury instructions, were based upon four California cases. We discuss each.

Cobbs v. Grant (1972) 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1 involved a doctor who explained the nature of duodenal ulcer surgery to his patient but did not inform him of the inherent risks of such surgery including a 5 percent risk of spleen injury. The patient "consented" to the ulcer surgery which caused spleen injury. Cobbs held that "as an integral part of the physician's overall obligation to the patient there is a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each." (Id., at p. 243, 104 Cal.Rptr. 505, 502 P.2d 1.) Thus, the predicate for the duty to disclose is In the instant case respondent proposed no post-surgery therapy and therefore did not require appellant's informed (or uninformed) consent to any such therapy. The predicate for the Cobbs duty-to-disclose being absent, there was no duty to disclose.

some proposed therapy, in Cobbs duodenal ulcer surgery.

In Truman v. Thomas (1980) 27 Cal.3d 285, 165 Cal.Rptr. 308, 611 P.2d 902 a family doctor recommended that Mrs. Truman, who he had treated for six years, have a pap smear but failed to inform her of the risks of not having one. Mrs. Truman did not follow the recommendation. When it was too late, a gynecologist discovered that she had inoperable cervical cancer. A sharply divided court held that Mrs. Truman's doctor had a duty to provide her with material information so that she could make an informed choice to accept or reject the medical procedure he had recommended. (Id., at p. 291, 165 Cal.Rptr. 308, 611 P.2d 902.) In Truman the predicate for the duty was not proposed therapy, as in Cobbs, but a recommended medical procedure.

In the instant case, not only did respondent propose no post-surgery therapy but respondent did not recommend any post-surgery medical procedure. Thus, the predicate for the Truman duty to provide material information being absent, there was no duty to provide such information.

In Moore v. Preventive Medicine Medical Group (1986) 178 Cal.App.3d 728, 223 Cal.Rptr. 859 an internist recommended that his patient see a specialist about the mole on his ear but failed to state the risk--failure to detect a cancer--in disregarding the recommendation. The patient disregarded the recommendation and only belatedly discovered that the mole was malignant. This court held in Moore that the doctor "had a duty to disclose ... all material information which would enable Moore to make an informed decision whether to see the specialist or not." (Id., at p. 738, 223 Cal.Rptr. 859.) But our predicate, as in Truman, was a recommended medical procedure. We stated, "This is not a case in which no diagnostic testing was recommended. (Compare Jamison v. Lindsay (1980) 108 Cal.App.3d 223, 230-231, 166 Cal.Rptr. 443.) As Mason [the internist] testified, he told Moore the mole should be removed or studied microscopically so that it could be properly diagnosed." (Emphasis added.) (Id., at p. 738, fn. 4, 223 Cal.Rptr. 859.)

Unlike Moore, as we have stated, this is a case in which no diagnostic testing was recommended. Therefore, the predicate for the duty to disclose being absent, there was no duty to provide "material information".

Finally, in Jamison v. Lindsay, supra, 108 Cal.App.3d 223, 166 Cal.Rptr. 443 plaintiff's gynecologist sent a sample of cystic material, removed during surgery, to defendant pathologist for examination and analysis. The pathologist determined that the sample contained both mature and immature tissue. Further, the pathologist knew there were two divergent schools of thought among pathologists regarding such immature tissue with one school believing that the tissue was potentially malignant. But the pathologist, being of the other school, concluded that the tissue was benign. He so informed plaintiff's gynecologist (without informing him about either the immature tissue or the divergent view of other pathologists) who informed plaintiff.

Some months later a malignant tumor was discovered at the cyst removal situs. Plaintiff sued the pathologist and her gynecologist not only for negligence but for "a lack of informed consent." (Id., at p. 229, 166 Cal.Rptr. 443.)

Jamison affirmed the judgment for defendants and found plaintiff's informed consent theory inapplicable and her proposed instructions based upon that theory properly refused. The court stated, "Appellant had validly consented to the surgery before anyone knew anything about the characteristics of the suspected tumor. After the surgery, respondents did not propose any therapy as to which appellant would have been entitled to make an informed But Jamison, in dictum, went on to fashion "an appropriate instruction". (Id., at p. 231, 166 Cal.Rptr. 443.) Appellant requested this ² and other duty to disclose instructions ³ and claims their denial to be error.

decision." (Id., at p. 230, 166 Cal.Rptr. 443.)

Assuming the Jamison dictum to be correct, ⁴ it merely indicates that the instruction was appropriate to its facts. Those facts contained the "two schools of thought" predicate absent in the instant case. Respondent had concluded that appellant's post-surgery condition was satisfactory and required neither further diagnosis nor treatment. Respondent, unlike the pathologist in Jamison, knew of no other "school of thought" that might have come to a conclusion different from his own.

l The dissent concludes otherwise. It finds authority in Cobbs v. Grant for its dispositive proposition that "[w]hether the physician's recommendation is to treat or not to treat, the risks and benefits involved in each course must be explained to the patient. The weighing of these risks is not the doctor's function. 'Such an evaluation and decision is a non-medical judgment reserved to the patient alone.' (Cobbs v. Grant, supra, 8 Cal.3d at p. 243 [104 Cal.Rptr. 505, 502 P.2d 1].)" (Dissent, at p. 158.) We find no such authority.

Cobbs' holding is inextricably linked not to non-treatment, as in the instant case, but to proposed therapy. It states, "... we hold, as an integral part of the physician's overall obligation to the patient there is a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each." (Cobbs v. Grant, supra, 8 Cal.3d 229, 243, 104 Cal.Rptr. 505, 502 P.2d 1. Emphasis added.)

Moreover the sentence quoted from Cobbs by the dissent, rather than occurring in the "non-treatment" context the dissent implies, is extracted from a treatment context. An accurate portrayal of that context is conveyed by this opening sentence: "A medical doctor, being the expert, appreciates the risks inherent in the procedure he is prescribing, the risks of a decision not to undergo the treatment, and the probability of a successful outcome of the treatment." (Ibid.) (Emphasis added.) ⁵

Conversely, the dissent, in its reading of the record, fails to find disclosures by respondent that we readily find. (Dissent at p. 159.) The dissent states respondent did not disclose to appellant that "[b]lood clots are a common complication after an angiogram." (Ibid.) But appellant testified she received from respondent a patient...