Smith v. Karen S. Reisig, M.D., Inc.

686 P.2d 285
CourtSupreme Court of Oklahoma
DecidedAugust 13, 1984
Docket59561
StatusPublished
Cited by17 cases

This text of 686 P.2d 285 (Smith v. Karen S. Reisig, M.D., Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of Oklahoma primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. Karen S. Reisig, M.D., Inc., 686 P.2d 285 (Okla. 1984).

Opinions

HODGES, Justice.

Edith Susie Smith, the appellant and plaintiff below, brought this action against Karen S. Reisig, M.D., and her professional corporation, seeking recovery for injuries sustained during a hysterectomy which she contended was unnecessary. In addition, Ms. Smith alleged the physician was liable for injuries to her bladder when it was “inadvertently” cut or punctured during the surgical procedure.

At trial, Ms. Smith introduced the testimony of the physician, her own testimony, and deposition testimony of a consulting urologist who was initially called in by Dr. Reisig to insure that the bladder injury had been properly repaired. There was no dispute in the evidence that the hysterectomy had in fact been performed or that the bladder injury had occurred during that surgery. At the conclusion of Ms. Smith’s case, the defendants demurred to her evidence, and the trial court sustained the [287]*287demurrer, entering judgment for the defendants. She appeals from that ruling.

I.

Ms. Smith contends initially that her evidence established a prima facie case of negligence by the physician. This is based upon the physician’s statement in the medical records that the injury to the bladder was “inadvertent”. She offered no third-party expert testimony of any failure of the physician to meet the applicable standard of medical care, but argues that expert opinion of deficient care was supplied by the extra-judicial admission contained in the medical records.

It is clear that an extra-judicial admission may satisfy the expert opinion requirement in medical malpractice cases. Greenwood v. Harris, 362 P.2d 85 (Okla.1961). The question to be answered is whether the physician’s characterization of the injury in the records constitutes an admission of deficient care.

In her post-operative notes, the physician described the surgical procedure and noted that there had been an “inadvertent entry of bladder” which was repaired. She repeated this statement in the discharge summary, noting that an “inadvertent cystoto-my” had occurred during the hysterectomy. Arguing that the dictionary definition of “inadvertent” equates it with “careless” or “heedless”, Smith says the physician’s characterization of the bladder incision as “inadvertent” is tantamount to an admission that it resulted from carelessness.1

Smith would have us take a single statement out of the entire hospital record, and conclude on that basis alone that there was sufficient evidence that the manner in which Dr. Reisig performed the surgery was substandard. The admission made here is not comparable with the ones found sufficient previously in cases recognizing the use of extra-judicial admissions. The reported opinion in Bungardt v. Younger, 112 Okla. 165, 239 P. 469 (1925), does not quote the admissions directly but indicates that they tended to prove that the doctor’s failure to diagnose and treat a broken fibula lead to permanent injury to the plaintiff.

In Greenwood v. Harris, supra, the physician had recommended and performed surgery on the plaintiff for a tumor, despite clinical indications of pregnancy. The physician stated that he “should have made more tests,” and that “this is a terrible thing that I have done, I wasn’t satisfied with the lab report, she did have signs of being pregnant. I should have had tests run again, I should have made some other tests.” Finally, in Robertson v. La Croix, 534 P.2d 17 (Okla.App.1975), the Court of Appeals determined that there was sufficient evidence to withstand demurrer where there was competent expert testimony as to how a vaginal fistula could occur during a hysterectomy and other evidence which eliminated all causes other than negligence. The court ruled that evidence, combined with an admission by the physician that he “just made a mistake and got over too far,” was sufficient to withstand demurrer.

In each of those instances the admission referred to some act of the physician which should not have been taken or an act not done which should have been. In this instance, the admission refers not to some act on the part of the physician but to the result. In context, it does not appear that Dr. Reisig intended to state anything other than that the bladder injury was unintentional. There was no admission that her care was substandard, and the trial court will not be reversed on the theory that this admission supplies the required expert testimony of lack of reasonable medical care.

II.

Ms. Smith also contends that she was entitled to a jury determination concerning [288]*288her theory of lack of informed consent based upon her assertion that treatment by hormonal therapy was a viable alternative to surgery, and was not disclosed. The physician contended successfully at trial that Ms. Smith had not established a prima facie case for recovery under that theory,

“Informed consent,” as it was adopted in Scott v. Bradford, 606 P.2d 554 (Okla.1980), entails three basic elements: 1) nondisclosure, 2) causation, and 3) injury. The physician contends that Ms. Smith’s evidence was insufficient on each of these elements. In discussing the physician’s duty under informed consent in Scott v. Bradford, supra, we said at page 558:

“The doctrine imposes a duty on a physician to inform a patient of his options and their attendant risks. If a physician breaches this duty, patient’s consent is defective, and physician is responsible for the consequences.”

As to nondisclosure, the evidence was disputed. Viewing that evidence in the light most favorable to Ms. Smith, we must assume that Dr. Reisig did not inform her patient of the available alternative to the hysterectomy, hormonal therapy. The physician’s testimony and records established this alternative as viable and possibly preferable to the surgery.2 This single failure to inform is a violation of the physician’s duty of disclosure. If the remaining elements are satisfied such violation gives rise to liability for the results of the treatment.

As to the causation element, i.e., that the patient would not have consented if informed adequately, Ms. Smith testified unequivocally that had she been told of the alternative of hormonal therapy, she would not have consented to the surgery. Physician argues that the trial court properly determined that reasonable minds could not differ that the plaintiff would have consented even if adequately informed. This conclusion flies directly in the face of the evidence. In effect, it is argued that, in ruling on a demurrer to the evidence, the trial court was entitled to disregard admittedly self-serving testimony of the patient, since other evidence indicated that she had been informed of far greater risks in the past than for this surgery, and still consented. In essence, we are urged to abandon the subjective test adopted in Scott v. Bradford, supra. We decline to do so.

In adopting that test, we noted that if the patient testified he would not have consented to the treatment if adequately informed, "... then the causation problem must be resolved by examining the credibility of plaintiff’s testimony. The jury must be instructed that it must find plaintiff would have refused the treatment if he is to prevail.” It is not the province of the appellate or trial court to pass upon the credibility of witnesses in cases tried to a jury.

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Smith v. Karen S. Reisig, M.D., Inc.
686 P.2d 285 (Supreme Court of Oklahoma, 1984)

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Bluebook (online)
686 P.2d 285, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-karen-s-reisig-md-inc-okla-1984.