Thomas v. Berrios, 76-1663

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

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.

Page 906

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

Page 907

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...