Stauffer v. Karabin

• Decision Date: 28 December 1971
• Docket Number: No. 70--561,70--561
• Parties: Patricia R. STAUFFER, Plaintiff-Appellant, v. John E. KARABIN, Defendant-Appellee. . I
• Court: Colorado Court of Appeals

Page 862

492 P.2d 862

30 Colo.App. 357

Patricia R. STAUFFER, Plaintiff-Appellant, v. John E. KARABIN, Defendant-Appellee.

No. 70--561.

Colorado Court of Appeals, Div. I.

Dec. 28, 1971.

Friedman, Bader & Moore, Charles A. Friedman, Denver, Walton, Tammen & Hudson, Norman E. Walton, Colorado Springs, for plaintiff-appellant.

Rector, Kane, Donley & Wills, Lee Wills, Colorado Springs, for defendant-appellee.

PIERCE, Judge.

Plaintiff, in her complaint for damages, charged defendant, a physician, with malpractice as a result of his alleged negligent diagnosis and surgery, and she further alleged that he failed to obtain her informed consent to the treatment he administered to correct her physical difficulties. She now appeals from a judgment in favor of defendant, following a jury verdict.

In May 1968, plaintiff sought the professional services of defendant to correct difficulty she was having with cramps and increased menstrual periods. Shortly thereafter, defendant performed a dilatation and curetage (commonly known as a D and C) surgical procedure on her.

Plaintiff's symptoms failed to subside and, in June 1968, defendant advised plaintiff that she should undergo a hysterectomy operation. At that time, plaintiff signed a consent form stating that she had been fully advised of the advantages of a hysterectomy, the possible complications of the operation, and alternative modes of treatment.

After the hysterectomy was performed, plaintiff developed a complication known as a ureterovaginal fistula, accompanied by several other complications requiring additional treatment, further surgery, and the eventual loss of a kidney.

The evidence indicates that there were alternative methods of treatment available for plaintiff's condition. Plaintiff maintains she would have elected to undergo one of these other treatments had she known of them. There was further testimony that defendant did not warn plaintiff of the fistula complication, which is not uncommon, or of the other resultant difficulties, all of which were within the realm of possibility.

Defendant offered evidence indicating that his diagnosis and all his surgical procedures were proper and performed with the skill required by medical standards in the community. As to the claim of uninformed consent, he defended on the ground that it was not the standard in the community to inform patients of the possible complications following surgery.

A number of complicated issues arose during this trial and we will discuss two issues which are dispositive of this appeal and two others which might cause difficulty upon retrial if not dealt with at this time.

PHYSICIAN-PATIENT PRIVILEGE

During the cross-examination of plaintiff, she stated that prior to her operation she did not know what a fistula was and had never heard of the complication. Further questioning revealed that she had lived in Colorado Springs for about 15 years and during that period she had been in close contact with her parents who also reside there. Defense then called a Dr. Beadles, a physician who had also treated plaintiff. He testified that, some 13 years prior to the trial of this lawsuit, he had operated on plaintiff's mother for a fistula resulting from surgery similar to that performed on plaintiff. He also testified that the symptoms suffered by the mother were similar to those experienced by plaintiff prior to the final corrective surgery. Plaintiff objected to this testimony on the ground that it was irrelevant and that it violated the physician-patient privilege.

Plaintiff's mother was not a party to the lawsuit. The record does not indicate that she was present in the courtroom or represented by counsel; neither does it indicate that she was informed prior to the taking of this testimony that her doctor would be revealing the details of her condition and treatment.

Defendant maintains that this testimony was proper and relevant to impeach the testimony of plaintiff and to establish that the consent of plaintiff was, in fact, informed consent (Shetter v. Rochelle, 2 Ariz.App. 358, 409 P.2d 74, Modified as to another issue, 2 Ariz.App. 607, 411 P.2d 45), although the source of her knowledge was other than statements of defendant. See Natanson v. Kline, 186 Kan. 393, 350 P.2d 1093, Modified as to another issue, 187 Kan. 186, 354 P.2d 670. These arguments would be valid were we not also dealing with the physician-patient privilege.

The statute governing the physician-patient privilege in Colorado, C.R.S.1963, 154--1--7, states, in part, as follows:

'(1) There are particular relations in which it is the policy of the law to Encourage confidence and to preserve it inviolate; therefore, a person Shall not be examined as a witness in the following cases:

'(5) A physician or surgeon duly authorized to practice his profession under the laws of this state, or any other state, Shall not be examined without the consent of his patient, as to any information acquired in attending the patient, which was necessary to enable him to prescribe or act for the patient; provided this section shall not apply to a physician or surgeon who is sued by or on behalf of a patient or by or on behalf of the heirs, executors or administrators of a patient on any cause of action arising out of or connected with the physician's care or treatment of such patient, or to physicians or surgeons who were in consultation with the physician or surgeon so sued on the case out of which said suit arises.' (Emphasis supplied)

While the rule set forth in the statute is not absolute in all cases since the privilege may be expressly or impliedly waived (Kelly v. Holmes, 28 Colo.App. 79, 470 P.2d 590), or nullified by statute (E.g., C.R.S.1963, 22--13--3; See J. Quinn, The Physician-Patient Privilege in Colorado, 37 Colo.L.Rev. 349), no waiver or statutory exception is present here. This is clearly a case where information, normally privileged, was allowed into evidence without waiver or statutory authority.

Defendant argues that there could be no error in this instance, as the privilege is personal to the patient (Wolf v. People, 117 Colo. 279, 187 P.2d 926), or to his estate (In re Shapter's Estate, 35 Colo. 578, 85 P. 688; Quinn, Supra), and that the statute is, in effect, inoperative unless invoked by the patient, his counsel, or personal representative. We do not agree.

It is implicit in the wording of the statute that the relationship between a physician and his patient and any information acquired from that relationship are extremely private matters warranting a high degree of protection; that their disclosure by a physician should be prevented unless waived; and that the law will provide that protection at the time the disclosure is attempted, rather than merely providing a remedy after violation.

Where the patient is not a party to the action and is not present or represented by counsel in the courtroom, the mandate of the statute directs the court to enforce the privilege unless a proper waiver is obtained, or a party to the proceedings protects the privilege, as in the case before us. O'Brien v. New England Mutual Life Insurance Co., 109 Kan. 138, 197 P. 1100; C. McCormick Law of Evidence § 96 (1954); 8 J. Wigmore, Evidence § 2386 (McNaughton rev. ed.).

Our review of the record indicates that this improper testimony could have influenced the verdict in this action, and we therefore rule that the admission of this evidence is reversible error.

DIRECTED VERDICT ON FAILURE TO INFORM

One of plaintiff's principal contentions is that she was entitled to a directed verdict because defendant admittedly did not inform her of the danger of the development of a fistula or a kidney loss, and did not inform her of alternative methods of treatment by which the hysterectomy operation could have been avoided. In Mallett v. Pirkey, 171 Colo. 271, 466 P.2d 466, the Supreme Court ruled that a physician

'. . . had the affirmative duty to inform a patient about to undergo surgery in a general way as to the procedures he will follow and the risks involved in those procedures; he also has a duty to inform a patient of any substantial risk of a procedure which he is to perform and of specific risks, if such risks are known or ought to be known by him.'

Plaintiff contends that if her consent was obtained without her being informed of the risks inherent in the operation, the doctor is liable for the unfortunate result even if the manner in which he performed the hysterectomy operation was not negligent (Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663; Colorado Jury Instructions 15:9, 15:10), and in light of defendant's admitted failure to inform her, she was entitled to a directed verdict. While these abstract principles of law are correct, we do not agree that, under the facts before us, liability is established as a matter of law.

Although, in this complaint, the claim for relief on the theory of lack of informed consent is couched in the language of battery, Colorado has elected to follow the more generally accepted theory set forth in Natanson v. Kline, Supra, which applies negligence principles to the informed consent aspect of actions of this nature. Mallett v. Pirkey, Supra; Colorado Jury Instructions 15:11, Supra; see Fraser and Chadsey, Informed Consent in Malpractice Cases; 6 Willamette Law...