Smith v. Shannon

• Decision Date: 30 June 1983
• Docket Number: No. 49142-9,49142-9
• Citation: 100 Wn.2d 26,666 P.2d 351
• Parties: Vera M. SMITH, Appellant, v. Roger H. SHANNON, M.D., and Roger H. Shannon and Jane Doe Shannon, and the marital community composed thereof; and Radiology Associates of Spokane, P.S., Respondents.
• Court: Washington Supreme Court

Page 26

100 Wn.2d 26

666 P.2d 351

Vera M. SMITH, Appellant, v. Roger H. SHANNON, M.D., and Roger H. Shannon and Jane Doe Shannon, and the marital community composed thereof; and Radiology Associates of Spokane, P.S., Respondents.

No. 49142-9.

Supreme Court of Washington En Banc.

June 30, 1983.

Hagan, VanCamp & McLendon, W. Russell VanCamp, Spokane, for appellant.

MacGillivray & Jones, Dan W. Keefe, Spokane, for respondents.

UTTER, Justice.

This is a medical malpractice action stating two causes of action, one for negligent treatment and one for failure to obtain the plaintiff's informed consent. The trial court, sitting without a jury, found for defendants on both causes of action. The plaintiff now appeals, claiming error in two respects: (1) application of an incorrect standard in determining what risks must be disclosed to obtain a fully informed consent; and (2) failure to measure the defendants' conduct against a standard of reasonable prudence rather than customary medical practice. We affirm, holding that the trial court did apply the proper standard governing risk disclosure and that plaintiff failed to preserve for appeal her second claim of error.

In February 1976, plaintiff, Vera Smith, contacted her attending physician, Dr. Raymond Lynberg, regarding possible kidney complications. Dr. Lynberg referred Ms. Smith to defendant Roger Shannon, a radiologist with defendant Radiology Associates of Spokane. Dr. Shannon was to administer an intravenous pyelogram (IVP) to Ms. Smith and take X-rays of her kidneys and ureters, the ducts that carry urine away from the kidneys to the bladder. An IVP is the injection of a radiopaque contrast agent, in this case, Renographin-60, into the veins of a patient. Its purpose is to enhance X-rays of the kidneys and ureters.

Prior to administering the IVP, Dr. Shannon informed Ms. Smith that her body might become flushed, that she might become nauseous and, finally, that she might become unconscious. Dr. Shannon apparently told Ms. Smith of no other risks. In particular, he did not inform her of 10 other risks which are mentioned in the Physicians' Desk Reference (PDR). The PDR is a book published by drug manufacturers which describes the uses, effects, and dangers of various drugs. One of the risks of using Renographin-60, described by the PDR, is thrombophlebitis, a type of inflammation of the vein.

After informing Ms. Smith of the risks which he did mention, Dr. Shannon began the IVP. As he did so, Ms. Smith began to sneeze and experienced a shooting pain down her arm. Apparently viewing the sneezing as insignificant and unaware of Ms. Smith's pain, Dr. Shannon completed the IVP and took the X-rays.

The pain in Ms. Smith's arm persisted and soon a dark streak appeared. A week after the IVP, she visited Dr. Lynberg, who diagnosed reactive phlebitis. Reactive phlebitis is an inflammation of the vein in reaction to some irritant. Renographin-60, the contrast agent used in the IVP is an irritant.

Ms. Smith's pain has continued and she has seen several physicians and been through related surgery twice. Specialists have diagnosed her pain as caused by damage to the nerves in her arm, however, and the record does not disclose whether or how this damage is related to Dr. Lynberg's initial diagnosis of phlebitis.

At trial, the court, weighing all of the evidence as trier of fact, dismissed Ms. Smith's cause of action for negligence on the ground that she had not demonstrated any deviation by Dr. Shannon from the established standard of medical practice. The court also rejected Ms. Smith's claim that Dr. Shannon had failed to obtain her informed consent, on the ground that Dr. Shannon had informed Ms. Smith of all material risks. While the court recognized that Dr. Shannon had not informed Ms. Smith of all of the risks described in the PDR, it concluded that Ms. Smith had failed to prove that any of these "were in fact medically significant or recognized risks." Clerk's Papers, at 94, 102. In so concluding, the court noted in particular that Ms. Smith had failed to produce sufficient expert testimony on this issue and indicated that it considered such testimony necessary.

I

A

The doctrine of informed consent refers to the requirement that a physician, before obtaining the consent of his or her patient to treatment, inform the patient of the treatment's attendant risks. The doctrine is premised on the fundamental principle that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body". Schloendorff v. Society of New York Hosp., 211 N.Y. 125, 129, 105 N.E. 92 (1914) (Cardozo, J.), overruled on other grounds, Bing v. Thunig, 2 N.Y.2d 656, 667, 143 N.E.2d 3, 163 N.Y.S.2d 3 (1957). A necessary corollary to this principle is that the individual be given sufficient information to make an intelligent decision. See Canterbury v. Spence, 464 F.2d 772, 783 (D.C Cir.1972).

The seminal case on informed consent in this state is Miller v. Kennedy, 11 Wash.App. 272, 522 P.2d 852 (1974), aff'd per curiam, 85 Wash.2d 151, 152, 530 P.2d 334 (1975). This Court of Appeals opinion bears the strong stamp of approval by this court, which unanimously and unequivocally affirmed it. See Miller v. Kennedy, 85 Wash.2d 151, 152, 530 P.2d 334 (1975) ("[w]e can add nothing constructive to the well considered opinion of that court and, accordingly, approve and adopt the reasoning thereof").

In Miller, the Court of Appeals emphasized that it is for the patient to evaluate the risks of treatment and that the only role to be played by the physician is to provide the patient with information as to what those risks are. ¹

Once it has been established by expert medical testimony that a risk existed, then the existence of the risk is the patient's business; and it is not for the medical profession to establish a criteria [sic ] for the dissemination of information to the patient based upon what doctors feel the patient should be told.

Miller, 11 Wash.App. at 285-86, 522 P.2d 852. ² To allow physicians, rather than patients, to determine what information should be disclosed would be in direct conflict with the underlying principle of patient sovereignty. Canterbury v. Spence, supra at 784.

On its face, this seems to imply that every risk, no matter how minute, must be disclosed. Such an interpretation goes too far, however. As one pair of commentators has noted, a physician "need not disclose every risk which could be disclosed, if only because of the time required to disclose every remote risk." Waltz & Scheuneman, Informed Consent to Therapy, 64 Nw.U.L.Rev. 628, 635 (1970). The informed consent doctrine "does not place upon the physician a duty to elucidate upon all of the possible risks, but only those of a serious nature." ZeBarth v. Swedish Hosp. Med. Ctr., 81 Wash.2d 12, 25, 499 P.2d 1 (1972). See also Gates v. Jensen, 92 Wash.2d 246, 251, 595 P.2d 919 (1979) ("high risk"); Meeks v. Marx, 15 Wash.App. 571, 578, 550 P.2d 1158 (1976) ("grave risks"); Miller, 11 Wash.App. at 293, 522 P.2d 852, quoting American Hosp. Ass'n, Statement of a Patient's Bill of Rights (1972) ("medically significant risks"); Mason v. Ellsworth, 3 Wash.App. 298, 313, 474 P.2d 909 (1970) ("physician [does not] ha[ve] an obligation to detail all risks of a given procedure" but only "reasonably foreseeable" risks. The guide for disclosure is materiality. Miller, 11 Wash.App. at 287, 522 P.2d 852. The test of materiality is an objective one incorporating the underlying concept of patient sovereignty.

The patient is endowed with the right to know each hazard which the usual person would utilize in reaching his decision. When a reasonable person in the patient's position probably would attach significance to the specific risk in deciding on treatment, the risk is material and must be disclosed.

Miller, at 287, 522 P.2d 852.

In the present case, therefore, liability cannot per se be predicated on Dr. Shannon's failure to inform Ms. Smith of all of the risks described in the PDR. The trial court properly moved on to consider whether any of the undisclosed risks were material. Ms. Smith apparently concedes the propriety of this analysis, but claims that the trial court applied an erroneous test of materiality.

B

One important practical issue in informed consent cases is whether expert testimony is necessary to show materiality. Problems inherent in requiring such testimony include lack of a uniform community standard, relegation of the patient's rights to secondary importance, and the oft-described "conspiracy of silence". Mason v. Ellsworth, supra 3 Wash.App. at 308-09, 474 P.2d 909; Wilkinson v. Vesey, 110 R.I. 606, 623-24, 295 A.2d 676 (1972); Comment, A New Standard for Informed Consent in Medical Malpractice Cases--The Role of the Expert Witness, 18 St. Louis U.L.J. 256, 260-63 (1973). On the other hand, expert testimony is generally of great assistance, and very often necessary, in enabling a lay trier of fact to make a reasoned decision. 51 Wash.L.Rev. 167, 177 (1975).

We have concededly shifted to an extent on the issue of an expert testimony requirement. In ZeBarth v. Swedish Hosp. Med. Ctr., supra, we noted that "in most instances, and as a general rule, the duty to inform the patient must be established by expert medical testimony or reasonable inferences to be drawn from it." ZeBarth, 81 Wash.2d at 24, 499 P.2d 1. In ZeBarth, however, we enunciated a test for materiality based on the standard of disclosure in the medical profession. See ZeBarth, at 26-27, 499 P.2d 1. That test has since been replaced by the "reasonable patient" test enunciated in Miller and set out above, as we recognized in Keogan v. Holy Family Hosp., 95 Wash.2d 306, 318, 622 P.2d 1246 (1980). Where the focus of the materiality test is on the patient rather than the profession, expert testimony is of secondary importance.

The jury is capable of deciding whether the doctor...