Woolley v. Henderson

Citation418 A.2d 1123
PartiesLinda E. WOOLLEY and Brandon Woolley v. Lester K. HENDERSON.
Decision Date28 August 1980
CourtSupreme Judicial Court of Maine (US)

Pierce, Atwood, Scribner, Allen, Smith & Lancaster, Ralph I. Lancaster, (orally), Louise K. Thomas, Portland, for plaintiffs.

Hunt, Thompson & Bowie, M. Roberts Hunt (orally), James M. Bowie, Portland, for defendant.

Before WERNICK, GODFREY, GLASSMAN and ROBERTS, JJ.

GLASSMAN, Justice.

The plaintiffs, Linda E. Woolley and her husband, Brandon Woolley, appeal from a judgment of the Superior Court, Somerset County, entered on April 13, 1979 following a jury verdict in favor of the defendant, Dr. Lester K. Henderson. On appeal in this medical malpractice action, the plaintiffs challenge rulings of the Superior Court Justice regarding the voir dire of the jury, the admission of evidence, the striking of an implied contract count in the complaint, the denial of a motion to add a battery claim to the complaint and the jury instructions concerning informed consent and the defendant's right to practice medicine. We vacate the judgment.

Linda Woolley suffered from a history of back problems and associated sciatic pain in her right leg. In 1965 she had back surgery for a ruptured disc at the interspace between her fourth and fifth lumbar vertebrae (L 4, 5). Experiencing renewed back pain, the plaintiff, in January of 1976, consulted the defendant, an orthopedic surgeon practicing in Skowhegan, who diagnosed a ruptured disc at the L 4, 5 vertebral interspace. When conservative treatment failed to alleviate the plaintiff's pain, the defendant performed a lumbar myelogram, a diagnostic procedure involving the use of dye and x-ray. On the basis of this test, the defendant recommended surgery. The extent to which he apprised the plaintiff of the risks of the proposed surgery is unclear.

In February of 1976, the defendant operated on the plaintiff, performing a laminectomy and foraminotomy at what he thought to by the L 4, 5 interspace. The defendant urged at trial, however, that because of the plaintiff's transitional vertebra, a congenital abnormality of the spine that makes counting and ascertaining the vertebral levels difficult, he in fact operated at the L 2, 3 and L 3, 4 interspaces, performing the surgical procedures at L 3, 4 rather than at L 4, 5. There was also evidence that the area of previous surgery was in fact L 3, 4 and not L 4, 5.

During the course of this operation, the defendant inadvertently made a rent in the dura, arachnoid and pia, the protective tissues encasing the spinal cord, while removing a small bone attached to epidural scar tissue. As a result, spinal fluid leaked from the plaintiff's spinal cord. Medical experts for both sides testified that a dural tear was a normal risk of this type of surgery, especially for a patient who had previous surgery at the location, and that a dural tear could occur at the hands of the most careful and competent surgeon.

Following surgery, the plaintiff's low back and radiating leg pain intensified. The defendant did not order further x-rays or myelograms, choosing to treat these symptoms with pain medication. Because her condition failed to improve, the plaintiff consulted another physician who, following examination and myelogram, removed protruding disc material at the L 4, 5 interspace in July of 1976. Although this surgical treatment alleviated the plaintiff's radiating leg pain, her back pain continued and subsequently intensified because she began to suffer from chronic adhesive arachnoiditis, an inflammation and thickening of the spinal cord that causes intractable back pain.

In a four-count complaint filed in the Superior Court on November 8, 1977, Linda Woolley alleged the defendant had breached an implied contract to perform surgery "in a good, workmanlike, professional, and skillful manner"; the defendant had failed adequately to inform the plaintiff of the risks of surgery; and the defendant had been negligent in operating at the wrong level of the plaintiff's lumbar spine, in causing a dural tear, in his postoperative care and otherwise in his diagnosis and treatment of the plaintiff. Brandon Woolley included a claim for loss of consortium.

I. Voir Dire

At an early stage of the voir dire examination, the presiding Justice granted the plaintiffs' motion to excuse five prospective jurors on the ground that current or former patients of the defendant or their close relatives had to be excused for cause. 1 Nevertheless, the presiding Justice refused the plaintiffs' request that those excused veniremen be required to leave the courtroom. During the course of the continued en masse voir dire, three of the excused jurors answered that they or close relatives had suffered from back problems. One of these jurors also stated that he was presently under a physician's care. Each excused juror gave a negative response when asked whether he had ever considered suing a physician. Two of the excused jurors stated that they would be unable to return a large plaintiffs' verdict against a physician even if they were satisfied that the plaintiffs were entitled to such a verdict and, furthermore, that they could not return a fair verdict in a medical malpractice action.

Following this colloquy, the plaintiffs moved for a mistrial, arguing that the answers given by the challenged jurors created the prejudicial impression among the remaining jurors that the excused jurors were satisfied with the medical treatment that they or family members had received from the defendant. Although the presiding Justice denied the mistrial motion, he then ordered the previously excused jurors to leave the courtroom. On appeal the plaintiffs contend that the presiding Justice erred in not directing the immediate discharge of those jurors that he had excused and in refusing to grant the mistrial motion because of the prejudice that resulted from the further voir dire of the excused jurors in the presence of the entire array. 2

Although the scope and manner of voir dire are within the sound discretion of the presiding Justice, e. g., State v. Robbins, Me., 401 A.2d 161, 163 (1979), it is clearly an abuse of that discretion not to discharge promptly those jurors who have been excused for cause but rather to allow the challenged jurors to answer further voir dire questions in the presence of the panel from which the trial jury will be selected. M.R.Civ.P. 47(b) provides that challenges for cause be made "at the bench, at the conclusion of the examination." Id. Yet neither Rule 47(b) nor any other rule allows jurors to continue to participate in en masse voir dire when the challenge has been made and sustained at an earlier point in the examination. Cf. State v. Williams, 30 Me. 484, 485-86 (1849). That prejudice ensued from the unwarranted practice of the presiding Justice in the instant case is apparent from the answers given by the excused jurors in response to the further examination. The composite inference that emerged-some jurors thought so highly of the medical treatment accorded them or their family members by the defendant that they could not render a fair and impartial verdict-could have seriously impaired the ability of those who ultimately became members of the trial jury to determine whether the defendant was negligent in his treatment of Mrs. Woolley.

Because this error requires reversal of the judgment, we do not reach the plaintiffs' allegations concerning the admission both of hearsay evidence and of answers to leading questions. Nevertheless, we will consider several other claims of error as they will surely arise again in the course of the retrial.

II. Informed Consent

At trial the plaintiffs seasonably objected to the jury instruction of the presiding Justice that the defendant's obligation to apprise Linda Woolley of the risks of the proposed surgery was limited to those disclosures which would be made by a reasonable medical practitioner. In Downer v. Veilleux, Me., 322 A.2d 82 (1974), this Court recognized the doctrine of informed consent as an actionable species of medical negligence:

The doctrine is based on the general principle of law that a physician has a duty adequately to disclose to his patient the proposed diagnostic, therapeutic or surgical procedure to be undertaken, the material risks involved therein and the alternatives available, if any, so that a patient of ordinary understanding, confronted with these disclosures and faced with a choice of undergoing the proposed treatment, or selecting an alternative process, or preferring refusal of all medical relief, may, in reaching a decision, intelligently exercise his judgment by balancing the probable risks against the probable benefits. Id. at 90-91.

Our decision in Downer raised, but expressly left unresolved, the scope of the physician's duty to disclose and the test applicable in determining proximate causation. We are now called upon to determine these questions, which go to the core of the informed consent doctrine. 3

A. Scope of Disclosure Duty

Although it is well settled that the law imposes on a physician a general duty reasonably to disclose to his patient significant information concerning treatment, jurisdictions differ on the scope of this disclosure obligation. Many courts hold that the duty of a physician to make adequate disclosure is, as in other cases of medical malpractice, measured by the standard of the reasonable medical practitioner under the same or similar circumstances. Under this "professional" disclosure standard, therefore, whether and to what extent a physician has an obligation to disclose a particular risk must in most cases be determined by expert medical testimony establishing the prevailing standard of practice and the defendant's departure therefrom. See, e. g., Roberts v. Young, 369 Mich. 133, 139, 119 N.W.2d 627, 630 (1963); Collins v. Itoh, 160 Mont. 461, 469, 503 P.2d 36, 41 (1972); ...

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