Wilkerson v. Mid-America Cardiology, MID-AMERICA

• Decision Date: 25 July 1995
• Docket Number: MID-AMERICA,No. WD,WD
• Citation: 908 S.W.2d 691
• Parties: John WILKERSON and Betty Wilkerson, Appellants, v.CARDIOLOGY and Gary Beauchamp, M.D., Respondents. 49503.
• Court: Missouri Court of Appeals

Page 691

908 S.W.2d 691

John WILKERSON and Betty Wilkerson, Appellants, v. MID-AMERICA CARDIOLOGY and Gary Beauchamp, M.D., Respondents.

No. WD 49503.

Missouri Court of Appeals Western District.

July 25, 1995.

G. Spencer Miller, Larry Marske, Thomas W. Koelling, Kansas City, for appellants.

Frank Saunders, Jr., Robert Mintz, Kansas City, for respondents.

Before KENNEDY, P.J., and SMART and LAURA DENVIR STITH, JJ.

LAURA DENVIR STITH, Judge.

John and Betty Wilkerson (Plaintiffs) appeal the trial court's grant of a directed verdict at the close of Plaintiffs' evidence in favor of Mid-America Cardiology and Dr. Gary Beauchamp (Defendants) on the issues of consent and informed consent and the trial court's denial of their Motion for New Trial on these same issues. Plaintiffs claim that they produced sufficient evidence to submit their claims of informed consent and battery to the jury.

I. FACTS AND PROCEDURAL BACKGROUND

John Wilkerson was hospitalized in Excelsior Springs on December 8, 1989, after being examined by his family physician for complaints of chest and shoulder pain. On December 11, 1989, he was transferred to St. Luke's Hospital.

Mr. Wilkerson was initially seen at St. Luke's on December 11 by Dr. Jodie Rowland, a noninvasive cardiologist. ¹ She and 12 other cardiologists were employed by Defendant Mid-America Cardiology Association, P.C. (Mid-America). After examining Mr. Wilkerson, Dr. Rowland determined that Mr. Wilkerson had a history of classic accelerating angina and recommended that he undergo a diagnostic coronary angiogram.

Prior to performance of the diagnostic angiogram on December 12, 1989, Dr. Rowland spoke with Mr. and Mrs. Wilkerson concerning the risks of the angiogram and documented this conversation in Mr. Wilkerson's medical records. Mr. Wilkerson also signed a consent form for the angiogram. ² Later that same day, Dr. Rowland examined the angiogram. It revealed blockages in Mr. Wilkerson's coronary arteries, the most serious of which was an approximate 98% blockage on the right side. Dr. Rowland went to Mr. Wilkerson's room to discuss the results with the Wilkersons. The nature and extent of the discussions between Dr. Rowland and Mr. and Mrs. Wilkerson are disputed.

Mrs. Wilkerson testified that Dr. Rowland stated that Mr. Wilkerson had narrowing or blockage of the arteries and that the way to correct this blockage would be to undergo an angioplasty. Mrs. Wilkerson testified that Dr. Rowland did not finish her conversation with them on December 12, 1989, however. Rather, because of the number of visitors in the room she told them that she would return later. According to Mrs. Wilkerson, Dr. Rowland instructed them to write down any questions they might have so that she could later discuss these questions with them.

Mr. and Mrs. Wilkerson and their daughter testified that Dr. Rowland never returned on December 12, 1989. She did visit Mr. Wilkerson's room the next day, December 13, 1989, but did not then discuss the angioplasty procedure or the risks associated with the procedure or any alternative treatment options because she was called away to attend to an emergency.

Mrs. Wilkerson testified that she knew the doctor planned to perform some procedure on December 14, 1989, but she did not know what one. Both of the Wilkersons' daughters testified that they understood Mr. Wilkerson would be undergoing an angioplasty on the morning of December 14. Mr. Wilkerson and his daughter testified that a nurse came to his room on December 14, 1989, and asked Mr. Wilkerson to sign a consent form for an angioplasty. Mr. Wilkerson told the nurse that no one had explained the angioplasty procedure to him. The nurse then recommended, and Mr. Wilkerson agreed, that he not sign the form until someone had talked with him about the procedure.

As he was being taken to the Catheterization Lab ("Cath Lab") where the angioplasty was to be performed, Mr. Wilkerson told the staff members that he had not signed a consent form for the angioplasty procedure because it had not been explained to him. The orderly accompanying him responded that the procedure would probably be explained to him at the Cath Lab. Mr. Wilkerson could not recall if he knew why he was being taken to the Cath Lab. However, he did not think any procedure would be done until he had signed a consent form. Shortly after reaching the Cath Lab, Mr. Wilkerson was given Valium.

Mr. Wilkerson testified that Dr. Gary Beauchamp, an interventional, or invasive, cardiologist, introduced himself in the Cath Lab just before the angioplasty was performed. Dr. Beauchamp did not ask Mr. Wilkerson if he had any questions about the procedure. Furthermore, Dr. Beauchamp admitted that he did not advise Mr. Wilkerson of the risks of the angioplasty procedure, because he assumed someone else had already done so.

Dr. Rowland testified that she discussed the angioplasty and other possible therapeutic options with Mr. and Mrs. Wilkerson on December 12, 1989, after the angiogram and that she discussed them again on December 13, 1989, with Mr. Wilkerson. While Dr. Rowland stated that her first note in Mr. Wilkerson's medical records for December 12, 1989 indicated that she had discussed the risks and benefits of the angioplasty and surgery with Mr. Wilkerson, the notes, in fact, do not reflect a discussion of the procedure. In addition, the prepared written consent form for the angioplasty was never signed by Mr. Wilkerson or anyone on his behalf.

Dr. Beauchamp performed an angioplasty on Mr. Wilkerson on December 14, 1989. During the course of the angioplasty, Mr. Wilkerson's left main artery was inadvertently dissected, resulting in decreased cardiac output and cardiac arrest. Mr. Wilkerson was rushed to surgery where an emergency bypass grafting procedure was performed. Mr. Wilkerson survived the dissection, cardiac arrest and emergency open heart surgery, but sustained permanent brain damage as a result of his cardiac arrest. Mr. Wilkerson was discharged from St. Luke's on January 2, 1990.

Plaintiffs brought suit against Mid-America and Dr. Beauchamp. In their Petition, Plaintiffs alleged negligent care and treatment by Defendants, including failure to explain the options and risks associated with the angioplasty procedure and failure to obtain Mr. Wilkerson's consent for the procedure. They also alleged battery resulting from physical contact with Mr. Wilkerson without his consent.

Defendants' expert, Dr. Jay Murphy, ³ testified that the accepted practice in obtaining consent is for the physician to explain the treatment options and the risks and benefits of those options to the patient and to then obtain consent from the patient to proceed. He agreed that a physician's failure to advise a patient of the risks of a particular procedure falls below the applicable standard of care. Dr. Murphy stated that angioplasty is an alternative treatment to bypass surgery, that dissection of an artery is a generally accepted complication of angioplasty and that dissection could lead to cardiac arrest. He specified that the risk of acute occlusion of a vessel from dissection was 3-5% and the risk of dissection itself was approximately 5%.

Plaintiffs' expert, Dr. Jay Schapira, stated that the patient must understand the reason, options, indications and risks and complications of a procedure as well as the chances of success so that the patient can decide whether they should have a particular procedure done. Dr. Schapira stated that, in a patient like Mr. Wilkerson, there was a substantial chance that the angioplasty procedure would be unsuccessful and that the patient should be alerted to the substantial chance that if the angioplasty were unsuccessful, bypass surgery might still be required.

Dr. Rowland testified that the other secondary risks associated with angioplasty included cardiac infarction, heart attack, death, emergency bypass, stroke and hemorrhage. Dr. Rowland also testified that there were four treatment options available to Mr. Wilkerson for his heart condition--doing nothing, treatment by medication, angioplasty and non-emergency bypass surgery. Drs. Murphy and Schapira both testified that only two treatment options were available to Mr. Wilkerson--coronary artery bypass surgery and multivessel coronary artery angioplasty.

Dr. Beauchamp testified as to the differences between a planned bypass procedure and an emergency bypass procedure, such as Mr. Wilkerson was required to have following dissection of his artery during the angioplasty. Such differences include the amount of time both the surgeon and the anesthesiologist have in which to prepare for the procedure. With a planned bypass procedure, the surgeon and anesthesiologist could consult with the patient several days in advance of the surgery and have ample time to review records, films, videotapes as well as information provided by other treating physicians. However, in the case of an emergency bypass, this preparation time would be limited to a matter of minutes. In addition, the evidence showed that St. Luke's Cath Lab where the angioplasty was to be performed was located two floors from the surgery floors where any emergency bypass would be performed.

At the close of Plaintiffs' evidence, Defendants filed a Motion for Directed Verdict on Plaintiffs' claim that Defendants performed a medical procedure on Mr. Wilkerson without his consent and without explaining the associated risks. At a hearing regarding this motion, Defendants claimed that Plaintiffs failed to produce any evidence as to what they would have done had their questions regarding the procedure been answered. Plaintiffs replied that they had produced evidence that the patient should have been advised of the risks inherent in a procedure, including the risks of death, dissection and cardiac arrest, and should have been advised of alternative treatment available to him such as, in this case, planned elective bypass...