Truman v. Thomas

• Decision Date: 09 June 1980
• Docket Number: S.F. 24054
• Court: California Supreme Court
• Parties: , 611 P.2d 902 Gary L. TRUMAN, Jr., a Minor, etc., et al., Plaintiffs and Appellants, v. Claude R. THOMAS, Defendant and Respondent.

Page 308

165 Cal.Rptr. 308

27 Cal.3d 285, 611 P.2d 902

Gary L. TRUMAN, Jr., a Minor, etc., et al., Plaintiffs and Appellants, v. Claude R. THOMAS, Defendant and Respondent.

S.F. 24054.

Supreme Court of California, In Bank.

June 9, 1980.

Hearing Denied July 17, 1980.

Werchick & Werchick and Arne Werchick, San Francisco, for plaintiffs and appellants.

Leonard & Lyde and Gary L. Gregerson and Gerald Hermansen, Oroville, for defendant and respondent.

Claude H. Smart, Jr., Stockton, Lowell T. Carruth, Fresno, Peter W. Davis, Judith R. Epstein, Crosby, Heafey, Roach & May, Oakland, Hassard, Bonnington, Rogers & Huber, Howard Hassard, David E. Willett and Nancy E. Hudgins, San Francisco, as amici curiae on behalf of defendant and respondent.

BIRD, Chief Justice.

This court must decide whether a physician's failure to inform a patient of the material risks of not consenting to a recommended pap smear, so that the patient might make an informed choice, may have breached the physician's duty of due care to his patient, who died from cancer of the cervix.

I

Respondent, Dr. Claude R. Thomas, is a family physician engaged in a general medical practice. He was first contacted in April 1963 by appellants' mother, Rena Truman, in connection with her second pregnancy. He continued to act as the primary physician for Mrs. Truman and her two children until March 1969. During this six-year period, Mrs. Truman not only sought his medical advice, but often discussed personal matters with him.

In April 1969, Mrs. Truman consulted Dr. Casey, a urologist, about a urinary tract infection which had been treated previously by Dr. Thomas. While examining Mrs. Truman, Dr. Casey discovered that she was experiencing heavy vaginal discharges and that her cervix was extremely rough. Mrs. Truman was given a prescription for the infection and advised to see a gynecologist as soon as possible. When Mrs. Truman did not make an appointment with a gynecologist, Dr. Casey made an appointment for her with a Dr. Ritter.

In October 1969, Dr. Ritter discovered that Mrs. Truman's cervix had been largely replaced by a cancerous tumor. Too far advanced to be removed by surgery, the tumor was unsuccessfully treated by other methods. Mrs. Truman died in July 1970 at the age of 30.

Appellants are Rena Truman's two children. They brought this wrongful death action against Dr. Thomas for his failure to perform a pap smear test on their mother. At the trial, expert testimony was presented which indicated that if Mrs. Truman had undergone a pap smear at any time between 1964 and 1969, the cervical tumor probably would have been discovered in time to save her life. There was disputed expert testimony that the standard of medical practice required a physician to explain to women patients that it is important to have a pap smear each year to "pick up early lesions that are treatable rather than having to deal with (more developed) tumor(s) that very often aren't treatable . . . ." ¹

Although Dr. Thomas saw Mrs. Truman frequently between 1964 and 1969, he never performed a pap smear test on her. Dr. Thomas testified that he did not "specifically" inform Mrs. Truman of the risk involved in any failure to undergo the pap smear test. Rather, "I said, 'You should have a pap smear.' We don't say by now it can be Stage Two (in the development of cervical cancer) or go through all of the different lectures about cancer. I think it is a widely known and generally accepted manner of treatment and I think the patient has a high degree of responsibility. We are not enforcers, we are advisors." However, Dr. Thomas' medical records contain no reference to any discussion or recommendation that Mrs. Truman undergo a pap smear test.

For the most part, Dr. Thomas was unable to describe specific conversations with Mrs. Truman. For example, he testified that during certain periods he "saw Rena very frequently, approximately once a week or so, and I am sure my opening remark was, 'Rena, you need a pap smear,' . . . I am sure we discussed it with her so often that she couldn't (have) fail(ed) to realize that we wanted her to have a complete examination, breast examination, ovaries and pap smear." Dr. Thomas also testified that on at least two occasions when he performed pelvic examinations of Mrs. Truman she refused him permission to perform the test, stating she could not afford the cost. Dr. Thomas offered to defer payment, but Mrs. Truman wanted to pay cash.

Appellants argue that the failure to give a pap smear test to Mrs. Truman proximately caused her death. Two instructions requested by appellants described alternative theories under which Dr. Thomas could be held liable for this failure. First, they asked that the jury be instructed that it "is the duty of a physician to disclose to his patient all relevant information to enable the patient to make an informed decision regarding the submission to or refusal to take a diagnostic test. (P) Failure of the physician to disclose to his patient all relevant information including the risks to the patient if the test is refused renders the physician liable for any injury legally resulting from the patient's refusal to take the test if a reasonably prudent person in the patient's position would not have refused the test if she had been adequately informed of all the significant perils." ² Second, they requested that the jury be informed that "as a matter of law . . . a physician who fails to perform a Pap smear test on a female patient over the age of 23 and to whom the patient has entrusted her general physical care is liable for injury or death proximately caused by the failure to perform the test." Both instructions were refused.

The jury rendered a special verdict, finding Dr. Thomas free of any negligence that proximately caused Mrs. Truman's death. This appeal followed.

II

The central issue for this court is whether Dr. Thomas breached his duty of care to Mrs. Truman when he failed to inform her of the potentially fatal consequences of allowing cervical cancer to develop undetected by a pap smear.

In Cobbs v. Grant (1972) 8 Cal.3d 229, 104 Cal.Rptr. 505, 502 P.2d 1, this court considered the scope of a physician's duty to disclose medical information to his or her patients in discussing proposed medical procedures. Certain basic characteristics of the physician-patient relationship were identified. "The first is that patients are generally persons unlearned in the medical sciences and therefore, except in rare cases, courts may safely assume the knowledge of patient and physician are not in parity. The second is that a person of adult years and in sound mind has the right, in the exercise of control over his own body, to determine whether or not to submit to lawful medical treatment. The third is that the patient's consent to treatment, to be effective, must be an informed consent. And the fourth is that the patient, being unlearned in medical sciences, has an abject dependence upon and trust in his physician for the information upon which he relies during the decisional process, thus raising an obligation in the physician that transcends arms-length transactions." (Id., at p. 242, 104 Cal.Rptr. at p. 513, 502 P.2d at p. 9.)

In light of these factors, the court held that "as an integral part of the physician's overall obligation to the patient there is a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each." (Id., at p. 243, 104 Cal.Rptr. at p. 514, 502 P.2d at p. 10.) The scope of a physician's duty to disclose is measured by the amount of knowledge a patient needs in order to make an informed choice. All information material to the patient's decision should be given. (Id., at p. 245, 104 Cal.Rptr. 505, 502 P.2d 1.)

Material information is that which the physician knows or should know would be regarded as significant by a reasonable person in the patient's position when deciding to accept or reject the recommended medical procedure. (Sard v. Hardy (1977) 281 Md. 432, 444, 379 A.2d 1014; Wilkinson v. Vesey (1972) 110 R.I. 606, 627, 295 A.2d 676.) To be material, a fact must also be one which is not commonly appreciated. (See Canterbury v. Spence (D.C.Cir.1972) 464 F.2d 772, 788.) If the physician knows or should know of a patient's unique concerns or lack of familiarity with medical procedures, this may expand the scope of required disclosure. (Walts & Scheuneman, Informed Consent to Therapy (1970) 64 Nw.U.L.Rev. 628, 639-640.) ³

Applying these principles, the court in Cobbs stated that a patient must be apprised not only of the "risks inherent in the procedure (prescribed, but also) the risks of a decision not to undergo the treatment, and the probability of a successful outcome of the treatment." (Cobbs, supra, 8 Cal.3d at p. 243, 104 Cal.Rptr. at p. 514, 502 P.2d at p. 10.) This rule applies whether the procedure involves treatment or a diagnostic test. On the one hand, a physician recommending a risk-free procedure may safely forego discussion beyond that necessary to conform to competent medical practice and to obtain the patient's consent. (See id., at pp. 244-245. 104 Cal.Rptr. 505, 502 P.2d 1.) If a patient indicates that he or she is going to decline the risk-free test or treatment, then the doctor has the additional duty of advising of all material risks of which a reasonable person would want to be informed before deciding not to undergo the procedure. On the other hand, if the recommended test or treatment is itself risky, then the physician should always explain the potential consequences of declining to follow the recommended course of action.

Nevertheless, Dr. Thomas contends that Cobbs does not apply to him because the duty to disclose applies only where the patient consents to the recommended procedure. He argues that since a physician's advice may be presumed to be founded on an expert...