Smith v. Cotter

• Citation: 810 P.2d 1204,107 Nev. 267
• Decision Date: 30 April 1991
• Docket Number: No. 20913,20913
• Parties: Lindsay SMITH, M.D., Appellant, v. James Jeffrey COTTER and Bonnie Elizabeth Cotter, Respondents.
• Court: Supreme Court of Nevada

Page 1204

810 P.2d 1204

107 Nev. 267

Lindsay SMITH, M.D., Appellant, v. James Jeffrey COTTER and Bonnie Elizabeth Cotter, Respondents.

No. 20913.

Supreme Court of Nevada.

April 30, 1991.

Osborne, Jenkins & Gamboa, and Cathy L. Bradford, Reno, for appellant.

Bradley & Drendel and Bill Bradley, Reno, for respondents.

OPINION

PER CURIAM:

This is a medical malpractice action. After a bench trial, the district court awarded damages against Dr. Lindsay Smith because of his negligent failure to obtain James Cotter's informed consent to a surgical operation, a total thyroidectomy.

Cotter claims that Dr. Smith failed to inform him that he could suffer paralyzed vocal chords and an obstructed airway as a complication of the surgery. Dr. Smith claims that he told Cotter of the risk and that, even if he did not, he was not required by professional standards to tell Cotter of this risk. There is ample evidence to support the trial court's conclusion that Dr. Smith failed to inform Cotter of the risk, that he should have done so, and that this failure was the cause of Cotter's injuries. We therefore affirm the judgment of the trial court.

Cotter suffered thyroid problems for several years and was treated by Dr. Robert Fredericks, who was unable to relieve the symptoms through conservative medical treatment and medication. Dr. Fredericks believed that Cotter might require a total thyroidectomy, and, for this reason, he referred Cotter to Dr. Smith, a general surgeon. On January 16, 1985, Mr. and Mrs. Cotter met with Dr. Smith. Dr. Smith noted in his office chart that he had discussed some of the complications associated with a total thyroidectomy namely, "infection, bleeding, recurrent laryngeal nerves and parathyroids." The trial judge concluded that neither Mr. nor Mrs. Cotter came away from that meeting with any idea that there was a risk of "total vocal cord paralysis, or permanent voice impairment or permanent airway obstruction." Cotter elected to have surgery, and he was operated on, on January 21, 1985. Following the surgery, Cotter could only speak in a whisper. Initially this did not alarm Cotter or Dr. Smith. Later, Cotter was seen by Dr. Fredericks, Dr. Dooley, an ear, nose and throat specialist, and a speech pathologist, Dr. McFarlane, who started to become alarmed because Cotter was still not able to speak properly. In March of 1985, Cotter was referred to a larynx expert, Dr. Dedo, who concluded that during surgery Cotter sustained an insult to the bilateral recurrent laryngeal nerve resulting in paralysis. The district court concluded from the medical evidence that Cotter could not close his vocal cords to the degree required for normal speech nor could he open his vocal cords to the degree required for normal breathing.

By mid-summer of 1985, Cotter's voice had begun to recover. By the fall some experts, including Dr. McFarlane, believed the injured nerves were showing signs of recovery. Dr. Dedo, on the other hand, attributed the improvement to an expected atrophying process which causes the cords to close slowly into a position approaching that which was necessary for phonation. In March of 1986, Dr. Dedo recommended a tracheotomy because Cotter's airway was obstructed and his vocal cords did not show a return of function. On March 12, 1986, Cotter was examined by Dr. Horgan, a board certified ear, nose and throat doctor in Carson City, who found Cotter's airway obstructed due to vocal cord paralysis. Dr. Horgan agreed with Dr. Dedo's evaluation. Dr. Horgan performed a tracheotomy on Cotter on April 15, 1986.

The district court found that since April 15, 1986, Cotter has suffered a permanent disability as a result of paralyzed vocal cords, an obstructed airway and placement of the tracheotomy tube. Based upon these findings of fact the district court found that Dr. Smith failed to obtain Cotter's informed consent to a total thyroidectomy. The court found that the standard of care for a board certified general surgeon requires the surgeon to inform the patient of the risks of surgical injury to the recurrent laryngeal nerve and of permanent vocal cord paralysis and airway obstruction. There is ample evidence to support these findings.

The trial court also specifically found that "Dr. Smith acted negligently

by failing to comply with the

requirements of NRS 41A.110[ ¹ and NRS 449.710. [ ². "On its face, NRS 41A.110 requires nothing of a doctor. The statute states only that if its provisions are followed, consent has been conclusively obtained; the statute does not state that valid consent can only be obtained by following its provisions. Based upon a plain reading of NRS 41A.110, the district court's finding that the statute sets out "requirements" for a doctor to follow is incorrect; nevertheless, the district court's conclusion that the doctor failed to inform Cotter about the surgery in a proper professional manner is justified under the professional standard of care discussed below.

With respect to NRS 449.710, ³ known as the "patient's bill of rights," Dr. Smith correctly points out that the patient's bill of rights does not require written consent. Dr. Smith argues that the district court held him in violation of this statute because he did not get consent in writing. This is not an accurate reading of the lower court's findings. The district court found that the risks of nerve paralysis, permanent vocal cord paralysis and permanent airway obstruction are "significant medical risks" as that term is used in NRS 449.710(6). The district court correctly concluded that Dr. Smith failed to comply with the patient's bill of rights, not by failing to get written consent, but by failing to inform Cotter of these "significant medical risks" prior to obtaining consent.

The standard relating to informed consent that has been adopted by a majority of jurisdictions, including Nevada, is a "professional" standard under which a doctor has a duty to disclose information that a reasonable practitioner in the same field of practice would disclose. Karp v. Cooley, 493 F.2d 408, 420 (5th Cir.1974, applying Texas law); Guebard v. Jabaay, 117 Ill.App.3d 1, 72 Ill.Dec. 498, 502, 452 N.E.2d 751, 755 (Ill.App.1983). Generally, under the majority rule the professional standard must be determined by expert testimony regarding the custom and practice of the particular field of medical practice. Di Filippo v. Preston, 173 A.2d 333, 339 (Del.1961); Woolley v. Henderson, 418 A.2d 1123, 1130 (Me.1980). This court has specifically adopted the "professional," standard stating that "the physician's duty to disclose is measured by a professional medical standard, which the plaintiff must establish with expert testimony." Beattie v. Thomas, 99 Nev. 579, 584, 668 P.2d 268, 271 (1983). In following the rule in Beattie this court recently declared that a lack of informed consent must be demonstrated through expert testimony based upon NRS 41A.100, ⁴ which requires expert testimony to prove negligence in medical malpractice actions. Brown v. Capanna, 105 Nev. 665, 669, 782 P.2d 1299, 1302 (1989). ⁵

The only expert who testified on behalf of the Cotters on the issue of informed consent was Dr. Knoernschild. When asked his opinion, "based upon reasonable medical probability," as to the proper information to be given by a general board certified surgeon preparing to perform a thyroidectomy, Dr. Knoernschild testified that he "thinks" that the surgeon should "inform the patient of the most hazardous complication of a thyroidectomy: that is, the division of one or both of the recurrent laryngeal nerves and the bilateral vocal cord paralysis or chronology." Dr. Smith argues that this testimony was "no more than an inappropriate personal opinion" and that Dr. Knoernschild never actually testified that Dr. Smith was guilty of a "deviation from the standard of care." In answer to this we would note that this was a bench trial, and the mere use of the word "think" by the expert does not place his expression of expert opinion into a category of conjecture or unreliability. Based upon the question he was responding to, the testimony was reasonably taken by the trial court as an expert opinion on what the standard of care is for a general surgeon performing a total thyroidectomy. ⁶

The Cotters argue that Dr. Smith's own admission at trial also tended to establish the standard of care in this case. When asked if "vocal cord paralysis is a significant risk that should be disclosed to a patient before undergoing a total thyroidectomy" Dr. Smith responded, "Yes." It has been held in other jurisdictions that the expert testimony requirement may be met by relying on the testimony of the defendant himself. See Abbey v. Jackson, 483 A.2d 330, 333 (D.C.App.1984) (citations omitted). The testimony of Dr. Smith with regard to what should have been disclosed was rightfully considered in conjunction with the expert testimony of Dr. Knoernschild in determining the standard of care; and we conclude that sufficient evidence was presented at trial to establish a standard of care. The next question is whether substantial evidence was presented to indicate that Dr. Smith failed to inform Cotter of the risk of vocal cord paralysis and thereby deviated from the standard of care.

Dr. Smith's own records presented at trial indicate that he informed Cotter of various risks ("bleeding, infection, recurrent...