502 P.2d 1 (Cal. 1972)
In August 1964 plaintiff was admitted to the hospital for treatment of a duodenal ulcer.1 He received a series of tests and medication to ease discomfort but continued to complain of lower abdominal pain and nausea.2 His family physician Dr. Jerome Sands concluded surgery was indicated, discussed the procedure in general terms including risks of a general anesthetic, and called in defendant Dr. Dudley F. P. Grant, a surgeon, who examined plaintiff and agreed that an intractable peptic duodenal ulcer required surgery.3
Dr. Grant explained the nature of the operation to plaintiff but did not discuss any of the inherent risks.4 The next day a two-hour operation confirmed the presence of a small ulcer.5 Plaintiff’s recovery appeared uneventful and he was discharged eight days later, but the following day he experienced intense abdominal pain, returned to the hospital, went into shock, and underwent emergency surgery that revealed internal bleeding from a severed artery at the hilum of the spleen, leading to removal of the spleen.6
After removal of his spleen, plaintiff recuperated for two weeks in the hospital.7 A month after discharge he was readmitted because of sharp pains in his stomach.8 X-rays disclosed plaintiff was developing a gastric ulcer.9 When plaintiff began to vomit blood the defendant and Dr. Sands concluded that a third operation was indicated: a gastrectomy with removal of 50 percent of plaintiff’s stomach to reduce its acid-producing capacity.10 He was subsequently hospitalized again when he began to bleed internally due to premature absorption of a suture.11 Plaintiff brought a malpractice suit against Dr. Grant that was consolidated for trial with a similar action against the hospital.12
The jury returned a general verdict of $23,800 against Dr. Grant and $45,000 against the hospital, the latter judgment having been satisfied.13 Dr. Grant appealed to the Supreme Court of California.14
Whether there was sufficient evidence of negligence in the performing of surgery to sustain a jury verdict for plaintiff?15
In a medical malpractice action, the plaintiff must present expert testimony to establish that the defendant failed to exercise the reasonable degree of skill and care ordinarily possessed and exercised by members of the medical profession in good standing in the community.16 The common knowledge exception to this requirement applies only when the negligence is obvious to a layperson, such as when a foreign object is left in the body. When the facts involve complex medical judgments, such as whether surgery was indicated for a tiny active duodenal ulcer, expert testimony is required.17 A general verdict cannot be upheld if it may have rested on an unsupported theory of liability.18
No. The ESTABLISHED FACTS show that plaintiff had a very tiny active duodenal ulcer with extreme irritability and constant pain, facts that require expert interpretation to determine if surgery was indicated.1920 The three experts, including defendant and Dr. Sands, testified that the decision to operate and the performance of the surgery met the standard of care.21 The 5 percent risk of spleen injury is an inherent risk and does not prove negligence under the rule from Siverson v. Weber.22 The common knowledge exception does not apply because the facts are not within lay comprehension.23
Therefore, there was insufficient evidence to support the jury's verdict on the negligence theory.24
The judgment must be reversed and the case remanded for a new trial because the general verdict may have been based on the unsupported negligence theory, resulting in a miscarriage of justice under article VI, section 13, of the California Constitution.25
Whether, under plaintiff’s alternative theory, the instructions to the jury adequately set forth the nature of a medical doctor’s duty to obtain the informed consent of a patient before undertaking treatment?26
A physician has a duty to disclose to the patient all information material to the patient's decision whether to undergo the proposed treatment, including the available choices and the dangers inherently and potentially involved in each.27 The scope of disclosure is measured by the patient's need for information to make an intelligent choice, not by the custom of physicians in the community.28 The battery theory applies only when the doctor performs a substantially different treatment without consent; otherwise, failure to disclose inherent risks is analyzed under negligence.29 The patient must show that a prudent person in the patient's position would not have consented if adequately informed.30
No. The ESTABLISHED FACTS indicate that Dr. Grant explained the nature of the operation but did not discuss any of the inherent risks, such as the 5 percent chance of spleen injury, the risk of gastric ulcer, and the risk of bleeding from suture absorption.3132 The trial court's instruction imposed an absolute duty to disclose all facts necessary for intelligent consent, which is not the correct standard.33 The proper standard is the materiality of the information to the patient's decision, and the instruction failed to incorporate the objective prudent patient test for causation.34
Therefore, the instructions did not adequately set forth the doctor's duty.35
The judgment is reversed because the jury instructions on informed consent were erroneous, and a new trial is required with proper instructions on the physician's duty of disclosure.36