Thomas v. Berrios

• Citation: 348 So.2d 905
• Decision Date: 29 June 1977
• Docket Number: No. 76-1663,76-1663
• Parties: Grace Irene THOMAS, Appellant, v. J. R. BERRIOS, M.D., et al., Appellees.
• Court: Court of Appeal of Florida (US)

Page 905

348 So.2d 905

Grace Irene THOMAS, Appellant, v. J. R. BERRIOS, M.D., et al., Appellees.

No. 76-1663.

District Court of Appeal of Florida, Second District.

June 29, 1977.

Rehearing Denied Aug. 29, 1977.

Charles P. Schropp, Shackleford, Farrior, Stallings & Evans, P. A., Tampa, for appellant.

David W. Young, Blake & Ford, P. A., Tampa, for appellee J. R. Berrios, M.D.

GRIMES, Judge.

This case involves the extent to which expert testimony is necessary to prove the plaintiff's case in a malpractice action.

Appellant had come to Lykes Memorial Hospital in Brooksville with complaints of heavy menstrual periods lasting for five to seven days which were often accompanied by pain sufficiently severe to require her to remain in bed for up to three days. The appellee, Dr. Berrios, who specialized in obstetrics and gynecology, was called in as a consultant. Dr. Berrios recommended performance of a dilation and curretage (D & C) to rule out cancer or polyps as the cause of appellant's condition, to be followed by a hysterectomy if the results of the D & C were negative. The D & C was performed and proved negative. Dr. Berrios then performed a hysterectomy or surgical removal of the uterus.

Shortly following surgery, appellant began to suffer from an infection. It was finally determined that the cause of the infection was the presence of an opening or fistula in the left ureter which permitted urine to enter the body. Appellant was transferred to Tampa General Hospital where she underwent corrective surgery which consisted of attaching the damaged left ureter to the right ureter.

The appellant brought a malpractice action against Dr. Berrios. In his deposition, Dr. Berrios acknowledged that the appellant's ureter must have been damaged during the operation. He felt that the most likely cause of the injury was an inadvertent contact with the ureter by a clamp or a suture, though he could point to no specific incident during the course of surgery which would indicate how or when such contact might have occurred. He maintained that he had committed no act of negligence and cited statistics from various medical publications to the effect that injuries occur in one-half percent to five percent of the cases in which hysterectomies are performed without any negligence on the part of the operating surgeon.

The deposition of Dr. Finney, who conducted the corrective surgery, was also taken. Dr. Finney testified that he had been unable to see the actual fistula in the left ureter because it was obscured by scar tissue which resulted from the appellant's prior surgery. He stated that he could not say that the damage to the appellant's ureter was occasioned by any negligence on the part of other surgeons. He corroborated Dr. Berrios' statistics concerning the incidence of unavoidable injuries occurring during hysterectomies.

The appellant filed an affidavit in which she stated that Dr. Berrios did not advise her prior to her hysterectomy of any problems which might arise from the operation. Dr. Berrios had admitted as much when he testified that he had not advised appellant of complications which could occur from the surgery because she had a history of anxiety. He stated that it was the customary practice in the community not to tell a prospective hysterectomy patient that there was a statistical possibility that a ureter might be cut in the performance of the operation. The court entered a summary judgment in favor of the doctor, and the appellant has prosecuted this appeal.

The appellant's case was primarily predicated upon (1) the failure to obtain an informed consent to the operation, and (2) negligence in the conduct of the surgery. The appellant submitted no expert testimony in support of either of these theories. Therefore, the main issues on this appeal are whether expert testimony is required in order to prove either the absence of informed consent or negligent medical treatment.

Absence of Informed Consent

In obtaining the consent to an operation or a course of treatment, a physician has an obligation to advise his patient of the material risks involved. Miriam Mascheck, Inc. v. Mausner, 264 So.2d 859 (Fla.3d DCA 1972); Bowers v. Talmage, 159 So.2d 888 (Fla.3d DCA 1964). The extent of the duty is aptly described in ZeBarth v. Swedish Hospital Medical Center,81 Wash.2d 12, 499 P.2d 1 (1972), as follows:

"The duty of a medical doctor to inform his patient of the risks of harm reasonably to be expected from a proposed course of treatment does not place upon the physician a duty to elucidate upon all of the possible risks, but only those of a serious nature. Nor does it contemplate that the patient or those in whose charge he may be are completely ignorant of medical matters. A patient is obliged to exercise the intelligence and act on the knowledge which an ordinary person would bring to the doctors' office. The law does not contemplate that a doctor need conduct a short course in anatomy, medicine, surgery, and therapeutics nor that he do anything which in reasonable standards for practice of medicine in the community might be inimical to the patient's best interests. The doctrine of informed consent does not require the doctor to risk frightening the patient out of a course of treatment which sound medical judgment dictates the patient should undertake, nor does the rule assume that the patient possesses less knowledge of medical matters than a person of ordinary understanding could reasonably be expected to have or by law should be charged with having. Nor should the rule declaring a duty to inform be so stated or applied that a physician, in the interest of protecting himself from an overburden of law suits and the attendant costs upon his time and purse, will always follow the most conservative therapy which, while of doubtful benefit to the patient exposes the patient to no affirmative medical hazards and the doctor to no risks of litigation. Thus, the information required of the doctor by the general rule is that information which a reasonably prudent physician or medical specialist of that medical community should or would know to be essential to enable a patient of ordinary understanding to intelligently decide whether to incur the risk by accepting the proposed treatment or avoid that risk by foregoing it. A doctor or specialist who fails to discharge this duty to inform would thus be liable as for negligence to the patient for the harm proximately resulting from the treatment to which the patient submitted. . . ."

The duty of the physician to inform and the extent of the information which may be required varies in each case depending upon the particular circumstances. Blye v. Rhoads, 216 Va. 645, 222 S.E.2d 783 (1976). The factors involved in making this determination are often complicated and technical, and in any event involve considerations beyond the expertise of the ordinary layman who is uneducated in medicine. Consequently, we have no hesitation in following the lead of our sister court in Ditlow v. Kaplan, 181 So.2d 226 (Fla.3d DCA 1966), by holding that expert testimony is required in informed consent cases to establish whether a reasonable medical practitioner in the community would make the pertinent disclosures under the same or similar circumstances. Our ruling accords with those of most courts which have considered this issue. Annot., 52 A.L.R.3d 1084 (1973).

Negligent Treatment

In an annotation at 81 A.L.R.2d 597 on the necessity of expert evidence in a malpractice action not involving informed consent, the annotator points out that the overwhelming weight of authority supports the view that expert witnesses are essential to the plaintiff's case. Annot., 81 A.L.R.2d 597 at 601 (1962). The rule requiring expert testimony has often been applied where the negligence allegedly occurred during an operation. Id. at 631. However, the annotator goes on to point out that most courts recognize an exception to the rule in those cases in which a doctor's want of skill or lack of care is such as to be within the comprehension of laymen and to require only common knowledge and experience to understand and judge it. An obvious example of the exception to the rule is where an injury occurs to an unrelated part of the body which is not under treatment. Id. at 645.

Florida has adopted the principle that expert testimony is not always required to prove a case of negligent treatment, as contrasted to a charge based on an incorrect diagnosis or the adoption of the wrong method of treatment. In Atkins v. Humes, 110 So.2d 663 (Fla.1959), our Supreme Court held that expert testimony was unnecessary to sustain a malpractice action predicated upon the negligent application of a cast which caused a pressure sore on the patient's arm resulting in a disability known as Volkmann's contracture and the negligent failure to relieve the pressure in the face of clear...