Young v. Yarn

• Decision Date: 07 November 1975
• Docket Number: No. 2,No. 51017,51017,2
• Citation: 222 S.E.2d 113,136 Ga.App. 737
• Parties: Maxine C. YOUNG v. C. P. YARN, Jr
• Court: Georgia Court of Appeals

Page 113

222 S.E.2d 113

136 Ga.App. 737

Maxine C. YOUNG v.C. P. YARN, Jr.

No. 51017.

Court of Appeals of Georgia, Division No. 2.

Nov. 7, 1975.

Rehearing Denied Nov. 25, 1975.

White & Jewett, Robert John White, Atlanta, for appellant.

T. M. Smith, Jr., Hunter S. Allen, Jr., Robert G. Tanner, Atlanta, for appellee.

PANNELL, Presiding Judge.

Plaintiff brought an action alleging that the defendant physician was negligent in failing to exercise proper care and skill in the performance of surgery upon plaintiff; and in breaching his duty to plaintiff by failing to advise her that the surgery was difficult and involved risks, thereby inducing her to consent to an operation to which she would not have consented had there been a full disclosure of the permanent consequences.A jury trial was held, and at the close of plaintiff's evidence, the judge granted defendant's motion for directed verdict.The plaintiff appeals the judgment entered in favor of the defendant.Held:

1.Appellant contends that the trial court erred in directing a verdict for defendant on the issue of whether he had breached a duty to appellant in failing to warn her of the risks of surgery.Appellant testified that she would never have consented to a facelift operation if she had been informed of the possibility of hypertrophic scarring.This cause of action is based on the doctrine of 'informed consent' effective in other states.The Georgia courts have never decided whether this doctrine is applicable in this State.Briefly stated, this doctrine is 'that a consent to a treatment or diagnostic test obtained without disclosure of the hazards or dangers involved, is no consent.'Mull v. Emory University, Inc., 114 Ga.App. 63, 65, 150 S.E.2d 276, 292.

The appellee argues that Code§ 88-2906 pre-empts the doctrine of informed consent in Georgia.This Code section provides in pertinent part: 'A consent to medical and surgical treatment which discloses in general terms the treatment or course of treatment in connection with which it is given and which is duly evidenced in writing and signed by the patient or other person or persons authorized to consent pursuant to the terms hereof, shall be conclusively presumed to be a valid consent in the absence of fraudulent misrepresentations of material facts in obtaining the same.'Although the present case is not controlled by this statute in that the consent form did not disclose the general terms of treatment, the statute does express a legislative intent as to the duty of the doctor regarding disclosure in order to obtain a valid consent.It provides that the physician must disclose in general terms the treatment or course of treatment in connection with which the consent is given.The legislature thus set forth the requisite disclosures necessary to render a consent valid.

In order for the 'informed consent' rule to be viable in the face of this statute, we would have to interpret 'treatment or course of treatment' to include the risks involved in such treatment.Black's Law Dictionary defines treatment as 'a broad term covering all steps taken to effect a cure of an injury or disease; the word including examination and diagnosis as well as application of remedies.'Black's Law Dictionary, 4th Ed., p. 1673.We cannot interpret the requirement of disclosing in general terms the treatment or terms of treatment as including a requirement for disclosure of risks of treatment.

The legislature has defined the...