Scalere v. Stenson

211 Cal. App. 3d 1446, 260 Cal. Rptr. 152, 1989 Cal. App. LEXIS 697

• Court: California Court of Appeal
• Decided: July 7, 1989
• Docket: B026033
• Status: Published

Opinions

Opinion

WOODS (Fred), J.

In this medical malpractice case appellant¹ claims instructional error regarding duty to disclose. We affirm.

Procedural and Factual Background

On June 25, 1980, appellant, then 46 years old, underwent a diagnostic surgical procedure, cardial catheterization (an angiogram) at the Hospital of the Good Samaritan. Respondent, a cardiologist specializing in such procedures, performed the angiogram on the brachial artery of appellant’s right arm.

After surgery appellant reported pain and discomfort in her right arm. There was swelling and little, if any, pulse.

Respondent examined and tested appellant’s right arm and concluded that it was progressing satisfactorily. He therefore neither told appellant about nor recommended any further diagnostic tests or therapy.

Approximately one year later appellant underwent a saphenous vein bypass of her right brachial artery with resultant damage.

On August 18, 1981, appellant filed a complaint alleging medical negligence. The defendants were respondent, another doctor, and the hospital.

On December 11, 1986, a jury returned their verdict finding that none of the defendants were negligent in their “medical, hospital, nursing, diagnosis, care and treatment of plaintiff.”

After filing the notice of appeal, appellant abandoned the appeal as to the other doctor and the hospital.

Contentions

Appellant contends: 1. The court erred in not instructing on duty to disclose.

2. The court abused its discretion in excluding a patient information brochure.

3. The court abused its discretion in limiting the testimony of Dr. Phillip Marcus.

Discussion

1. The court erred in not instructing on duty to disclose.

Although appellant’s complaint only alleged ordinary medical negligence (“negligently examined, diagnosed, prognosed, cared for, treated, and performed surgical procedures upon the body and person of plaintiff”) at trial appellant sought to establish a second negligence theory, viz., that respondent had failed to disclose “material facts necessary for [appellant] to properly evaluate her condition and seek appropriate /post-operative care.” (Italics added.)

This duty to disclose theory, and appellant’s requested jury instructions, were based upon four California cases. We discuss each.

Cobbs v. Grant (1972) 8 Cal.3d 229 [104 Cal.Rptr. 505, 502 P.2d 1] involved a doctor who explained the nature of duodenal ulcer surgery to his patient but did not inform him of the inherent risks of such surgery including a 5 percent risk of spleen injury. The patient “consented” to the ulcer surgery which caused spleen injury. Cobbs 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.) Thus, the predicate for the duty to disclose is some proposed therapy, in Cobbs duodenal ulcer surgery.

In the instant case respondent proposed no postsurgery therapy and therefore did not require appellant’s informed (or uninformed) consent to any such therapy. The predicate for the Cobbs duty-to-disclose being absent, there was no duty to disclose.

In Truman v. Thomas (1980) 27 Cal.3d 285 [165 Cal.Rptr. 308, 611 P.2d 902] a family doctor recommended that Mrs. Truman, who he had treated for six years, have a pap smear but failed to inform her of the risks of not having one. Mrs. Truman did not follow the recommendation. When it was too late, a gynecologist discovered that she had inoperable cervical cancer. A sharply divided court held that Mrs. Truman’s doctor had a duty to provide her with material information so that she could make an informed choice to accept or reject the medical procedure he had recommended. (Id., at p. 291.) In Truman the predicate for the duty was not proposed therapy, as in Cobbs, but a recommended medical procedure.

In the instant case, not only did respondent propose no postsurgery therapy but respondent did not recommend any postsurgery medical procedure. Thus, the predicate for the Truman duty to provide material information being absent, there was no duty to provide such information.

In Moore v. Preventive Medicine Medical Group, Inc. (1986) 178 Cal.App.3d 728 [223 Cal.Rptr. 859] an internist recommended that his patient see a specialist about the mole on his ear but failed to state the risk—failure to detect a cancer—in disregarding the recommendation. The patient disregarded the recommendation and only belatedly discovered that the mole was malignant. This court held in Moore that the doctor “had a duty to disclose ... all material information which would enable Moore to make an informed decision whether to see the specialist or not.” (Id., at p. 738.) But our predicate, as in Truman, was a recommended medical procedure. We stated, “This is not a case in which no diagnostic testing was recommended. (Compare Jamison v. Lindsay (1980) 108 Cal.App.3d 223, 230-231 [166 Cal.Rptr. 443].) As Mason [the internist] testified, he told Moore the mole should be removed or studied microscopically so that it could be properly diagnosed.” (Italics added.) (Id., at p.738, fn. 4.)

Unlike Moore, as we have stated, this is a case in which no diagnostic testing was recommended. Therefore, the predicate for the duty to disclose being absent, there was no duty to provide “material information.”

Finally, in Jamison v. Lindsay, supra, 108 Cal.App.3d 223 plaintiif’s gynecologist sent a sample of cystic material, removed during surgery, to defendant pathologist for examination and analysis. The pathologist determined that the sample contained both mature and immature tissue. Further, the pathologist knew there were two divergent schools of thought among pathologists regarding such immature tissue with one school believing that the tissue was potentially malignant. But the pathologist, being of the other school, concluded that the tissue was benign. He so informed plaintiff’s gynecologist (without informing him about either the immature tissue or the divergent view of other pathologists) who informed plaintiff.

Some months later a malignant tumor was discovered at the cyst removal situs. Plaintiff sued the pathologist and her gynecologist not only for negligence but for “a lack of informed consent.” (108 Cal.App.3d at p. 229.)

Jamison affirmed the judgment for defendants and found plaintiff’s informed consent theory inapplicable and her proposed instructions based upon that theory properly refused. The court stated, “Appellant had validly consented to the surgery before anyone knew anything about the characteristics of the suspected tumor. After the surgery, respondents did not propose any therapy as to which appellant would have been entitled to make an informed decision.” (108 Cal.App.3d at p. 230.)

But Jamison, in dictum, went on to fashion “an appropriate instruction.” (108 Cal.App.3d at p. 231.) Appellant requested this² and other duty to disclose instructions³ and claims their denial to be error.

Assuming the Jamison dictum to be correct,⁴ it merely indicates that the instruction was appropriate to its facts. Those facts contained the “two schools of thought” predicate absent in the instant case. Respondent had concluded that appellant’s postsurgery condition was satisfactory and required neither further diagnosis nor treatment. Respondent, unlike the pathologist in Jamison, knew of no other “school of thought” that might have come to a conclusion different from his own.

The dissent concludes otherwise. It finds authority in Cobbs v. Grant for its dispositive proposition that “[w]hether the physician’s recommendation is to treat or not to treat, the risks and benefits involved in each course must be explained to the patient. The weighing of these risks is not the doctor’s function. ‘Such an evaluation and decision is a non-medical judgment reserved to the patient alone.’ (Cobbs v. Grant, supra, 8 Cal.3d at p. 243.)” (Dissent, post, at p. 1456.) We find no such authority.

Cobbs’s holding is inextricably linked not to nontreatment, as in the instant case, but to proposed therapy. It states, “. . . we hold, 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.” (Cobbs v. Grant, supra, 8 Cal.3d 229, 243. Italics added.)

Moreover the sentence quoted from Cobbs by the dissent, rather than occurring in the “non-treatment” context the dissent implies, is extracted from a treatment context. An accurate portrayal of that context is conveyed by this opening sentence: “A medical doctor, being the expert, appreciates the risks inherent in the procedure he is prescribing, the risks of a decision not to undergo the treatment, and the probability of a successful outcome of the treatment.” (8 Cal.3d at p. 243.) (Italics added.)⁵

Conversely, the dissent, in its reading of the record, fails to find disclosures by respondent that we readily find. (Dissent, post, at p. 1460.) The dissent states respondent did not disclose to appellant that “[bjlood clots are a common complication after an angiogram.” (Dissent, post, at p. 1459.) But appellant testified she received from respondent a patient information brochure co-authored by respondent which, as she read aloud to the jury, states “[ojccasionally, perhaps one in a hundred times, the artery in spite of proper technique will clot at the site of the catheter insertion. . . .”

The dissent also states respondent failed to disclose that “[i]f a blood clot exists it is advisable to perform a thrombectomy soon after the angiogram.” (Dissent, post, at p. 1458.) But the just-quoted sentence continues “and may need to be re-explored. This is done by the vascular surgeons.”

Further, the dissent states respondent had a duty to disclose to appellant that a thrombectomy “was a reasonable option.”⁶ (Dissent, post, at p. 1458.) But respondent could hardly “disclose” what he did not believe. Respondent made clear that “it was my opinion . . . that she did not need a vascular surgeon, she did not need a thrombectomy.”

The dissent would draw a new duty-to-disclose line. Though a doctor proposes neither surgery nor medical procedure, though he recommends no therapy and is unaware of any other school of doctors who would recommend therapy, the dissent would require such a doctor to disclose “the risks and benefits of non-treatment.”

Such a line, like one drawn with a finger in the air, is without precision and predictability. It would impose significant new burdens on already harried doctors without awarding demonstrable benefits to their patients.

“It seems obviously prohibitive and unrealistic to expect physicians to discuss with their patients every risk of proposed treatment[⁷] —no matter how small or remote—and generally unneccessary from the patient’s viewpoint as well.” (Canterbury v. Spence (D.C. Cir. 1972) 464 F.2d 772, 786 [150 App.D.C. 263].)

We find no error in the trial court’s refusal to give appellant’s requested duty to disclose instructions.

Of course, as the court said in Jamison, “Appellant was not without an appropriate legal theory under which she might recover damages. Negligent failure to advise a patient to pursue a potentially necessary course of treatment is actionable under ordinary medical negligence standards. . . .” (Jamison v. Lindsay, supra, 108 Cal.App.3d 223, 231.)

2. The court abused its discretion in excluding a patient information brochure.

Sometime before her June 25, 1980, angiogram appellant received a “Patient Information On Cardiac Catheterization” brochure which respondent had co-authored.

At trial, portions of the brochure were recited by appellant to the jury. During one of these recitations counsel discovered that there were two slightly different brochures. Appellant was unable to determine which of the two she had received.

Appellant claims it was error for the court to exclude the brochure appellant received. But not only was appellant unable to identify which of the two different brochures she received but appellant, in violation of California Rules of Court, rule 15,⁸ fails to cite where in the record she made a motion to admit the brochure into evidence. Our search discerns no such motion.

Appellant has failed to establish any abuse of discretion by the trial court.

3. The court abused its discretion in limiting the testimony of Dr. Phillip Marcus.

Appellant’s expert witness, Dr. Robert Carroll, testified to the standard of care a vascular surgeon would use in the relevant circumstances. When appellant sought to have another expert witness, Dr. Phillip Marcus, testify to the same matter, the court prohibited that testimony but allowed Dr. Marcus to testify about any “area that hasn’t been gone into.” The same ruling applied to respondent’s expert witnesses.

The court properly exercised its discretion under Evidence Code section 723 (“The court may, at any time before or during the trial of an action, limit the number of expert witnesses to be called by any party.” See Horn v. General Motors Corp. (1976) 17 Cal.3d 359, 371 [131 Cal.Rptr. 78, 551 P.2d 398]) and section 352 of the Evidence Code (“The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time. . . .”). There was no error.

Disposition

The judgment is affirmed. Costs on appeal are awarded to respondent.

Lillie, P. J., concurred.

1 Plaintiffs-appellants are Elizabeth Rae Scalere, who was operated upon and suffered injury, and her husband Michael Scalere, who suffered a loss of consortium. For convenience we refer to Elizabeth Rae Scalere as appellant.

2 “[I]t is the duty of a physician or surgeon to disclose to the patient all relevant information to enable the patient to make an informed decision whether to seek additional treatment following surgery.” (Id., at p. 231.)

3 Although the 11 instructions appended to appellant’s opening brief each indicate “requested by plaintiff” and have a mark or check in the refused box with the trial judge’s initials, C.V., on the judge’s signature line, only one (BAJI 6.11, modified) appears to be included among the list of appellant’s proposed instructions filed with the trial court. Moreover, during the extensive instruction discussions with the trial court appellant appears to have rescinded her request for all but one duty to disclose instruction. During these discussions counsel for respondent stated, without contradiction or dissent, that “all parties have agreed, as has the Court, that the BAJI instructions of informed consent, 6.11 and 6.11.5, are not applicable to this matter which has resulted in the special instruction [apparently the Jamison instruction] being drafted on behalf of Mrs. Scalere.” The Jamison instruction, alone, is an inadequate and misleading description of a duty to disclose.

4 Although decided almost nine years ago, as of April 1, 1989, it has been cited by California appellate courts only four times.

5 The pertinent part of the paragraph reads: “A medical doctor, being the expert, appreciates the risks inherent in the procedure he is prescribing, the risks of a decision not to undergo the treatment, and the probability of a successful outcome of the treatment. But once this information has been disclosed, that aspect of the doctor’s expert function has been performed. The weighing of these risks against the individual subjective fears and hopes of the patient is not an expert skill. Such evaluation and decision is a nonmedical judgment reserved to the patient alone.” (Ibid.)

6 The dissent relies on respondent’s answer to a hypothetical question not descriptive of appellant’s condition, viz, an occluded brachial artery.

7 Let alone nontreatment.

8 “The statement of any matter in the record shall be supported by appropriate reference to the record.”