Mandell v. Maurer, 150 Or App 543 (1997).
Plaintiff alleged that the defendant failed to inform the plaintiff of the risks and side effects of taking an anti-inflammatory medication. Trial court granted the defendant’s motion for summary judgment based on defendant’s affidavit that his treatment was not a factor in causing plaintiff’s injury. Court of Appeals reversed.
The trial court erred in granting motion for summary judgment as to causation. The elements of informed consent are (1) that defendant failed to explain (a) in general terms the treatment or procedure, (b) available alternative methods of treatment, and (c) material risks of procedure or treatment; and (2) that the defendant’s failure to obtain informed consent caused injury to the plaintiff. The test for determining whether a physician obtained informed consent is subjective. Accordingly, the plaintiff’s affidavit that if he had been informed of the risks and alternatives he would not have taken the medication was sufficient to create a material issue of fact. Defendant’s affidavit that his treatment did not cause plaintiff’s injuries is insufficient to establish that the defendant is entitled to summary judgment as a matter of law because his affidavit assumed that informed consent had been obtained.
Zacher v. Petty, 312 Or 60 (1992).
ORS 677.097 sets out the statutory requirements for a physician to obtain informed consent: (1) the procedure or treatment in general, (2) that there may be alternative procedures or treatment, (3) risks, if any, of the procedure or treatment, and (4) the physician must ask if the patient wants a more detailed explanation. If the patient requests more information, then the physician must provide a detailed explanation of the material risks and viable alternatives. Failure to ask the question required by ORS 677.097(2) is noncompliance with the statute. A jury could have found that the defendant failed to ask the plaintiff if she wanted a more detailed disclosure. There was evidence that nonsurgical methods were available and that plaintiff would not have consented to surgery if she had been advised of the alternative methods of treatment.
Arena v. Gingrich, 84 Or App 25 (1987).
Plaintiff underwent surgery to repair a hiatal hernia. At the time of plaintiff’s surgery, there were three accepted procedures for repair. The plaintiff alleged that the defendant described only the first two procedures. Plaintiff consented to the surgery, but the physician performed the third procedure. Plaintiff sued claiming lack of informed consent and battery. Plaintiff suffered no damage from the procedure, but rather sued for the distress of having had a procedure to which she did not consent. The issue before the court was whether the standard applied in determining informed consent should be objective (would disclosure to a reasonably prudent person in plaintiff’s position have caused them to refuse consent) or subjective (would disclosure to this plaintiff in fact have caused her to refuse consent). This was an issue of first impression in Oregon. The court adopted the subjective standard. However, the court concluded that testimony as to which procedure others chose when presented with the information that the plaintiff did not receive was allowed for the limited purpose of challenging plaintiff’s credibility.
Tiedemann v. Radiation Therapy Consultants, P.C., 299 Or 238 (1985).
Plaintiff brought a claim against the defendant physician alleging that he did not give informed consent because the defendant failed to disclose the material risks involved in radiation therapy. Plaintiff also alleged medical negligence in other particulars. Defendant moved for summary judgment as to all claims, relying on the defendant physician’s affidavit that in her opinion the treatment plaintiff received met the standard of care. Summary judgment is appropriate where there is no genuine issue of material fact.
Where a party is required to provide the opinion of an expert to establish a genuine issue of material fact, a defendant physician’s affidavit may conclusively establish that fact, and must be rebutted by a contradictory affidavit in order to avoid summary judgment on that issue. Expert testimony is generally required to establish the standard of care for medical negligence. In informed consent cases, expert testimony is not required to establish whether the physician informed the plaintiff of (1) the procedure or treatment in general, (2) alternative methods or treatment, and (3) the risks to the procedure or treatment. Expert testimony may be necessary to establish the standard of care if the patient requests a further explanation of procedures or treatment. The issue of what additional information should have been given to the patient to secure her informed consent for radiation treatment was a matter requiring expert testimony. Summary judgment against the plaintiff's claims of negligence and lack of informed consent was proper. The defendant physician's expert testimony went unrebutted by plaintiff's lay testimony and plaintiff did not offer a contradictory affidavit under ORCP 47E that "an unnamed qualified expert has been retained who is available and willing to testify to admissible facts or opinions creating a question of fact," leaving no genuine issue of material fact for trial.
Holland v. Sisters of St. Joseph, Seeley, 274 Or 757 (1976).
Plaintiff alleged that the defendant failed to obtain the plaintiff’s informed consent to radiation treatment. The trial court erred in giving an instruction on the duty to inform asking the jury to consider what a "reasonably prudent and skillful physician specializing in radiology would have explained." The Supreme Court held that where medical testimony has been introduced showing that the risk is material, the alternatives are feasible, and that disclosure of the risk would not be detrimental to the patient, the duty follows as a matter of law (citing Getchell v. Mansfield, 260 Or 174 (1977)). Error in giving the duty to inform instruction was properly preserved where the plaintiff requested an instruction that correctly stated the law, even though the plaintiff did not point out the error in the instruction given by the trial court.
In determining whether or not a risk is material, a jury should consider the likelihood of any injury and its seriousness. If a serious injury might occur from a given method of treatment, the physician must inform the patient of all but extremely remote risks. If the potential injury is slight, then the patient need only be informed of likely risks.
Getchell v. Mansfield, 260 Or 174 (1971).
Plaintiff brought an action against an orthopedic surgeon for failure to warn the plaintiff as to material risks of treatment of her shoulder and failure to advise her of alternative procedures. The duty to warn is established as a matter of law if (1) the risk of injury inherent in the treatment is material; (2) there are feasible alternative courses available; and (3) the plaintiff can be advised of risks and alternatives without detriment to the plaintiff’s well-being. Expert testimony is required to establish some aspects of the standard of care for informed consent but not all. Generally, expert medical testimony is necessary to establish whether a risk is material, the feasibility of alternative methods of treatment or surgery, and whether withholding information on specific risks was for the patient’s well-being. When there is medical testimony establishing these three elements, expert medical testimony is not required establish a duty to disclose such risks. The duty to disclose is a legal issue, not a medical issue.
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