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Korman v. Mallin (9/3/93), 858 P 2d 1145
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Notice: This is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
JULIE KORMAN, )
) Supreme Court File No. S-4976
Appellant, ) Superior Court File No.
) 3AN-90-3486 Civil
)
v. ) O P I N I O N
)
ROBERT E. MALLIN, ) [No. 4002 - September 3, 1993]
)
Appellee. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Third Judicial District,
Anchorage, Karen L. Hunt, Judge.
Appearances: Charles W. Ray, Jr.,
Anchorage, for Appellant. Sanford M. Gibbs,
Hagans, Brown, Gibbs & Moran, Anchorage, for
Appellee.
Before: Moore, Chief Justice,
Rabinowitz, Matthews, and Compton, Justices.
[Burke, Justice, not participating].
MOORE, Chief Justice.
I. Introduction
In this "informed consent"case, Julie Korman appeals
the trial court's grant of summary judgment in favor of Dr.
Mallin. Korman maintains that Dr. Mallin failed to establish, as
a matter of law, that he adequately disclosed the risk of painful
and unsightly scarring before Korman consented to elective breast
reduction surgery.
In deciding this case, we address for the first time
the scope of disclosure required by the "informed consent"
doctrine under Alaska law. We conclude that a physician must
disclose those risks and benefits of a proposed procedure which a
reasonable patient would need to know in order to make an
informed and intelligent decision. Applying this reasonable
patient standard to the case at bar, we conclude that the trial
court erred in granting summary judgment on the record presented
and remand this case for further proceedings.
II. Facts and Proceedings
In April 1988 Julie Korman consulted Dr. Mallin, an
Anchorage plastic surgeon, to inquire about a possible breast
reduction operation. At this initial visit, Korman viewed two
videotapes concerning breast reduction surgery.1 Dr. Mallin then
talked alone with Korman for approximately ten minutes about her
needs and conducted a brief physical examination. After the
examination, Dr. Mallin discussed the specific procedures with
Korman in the presence of his medical assistant, Bari Lasky.
Dr. Mallin's office notes indicate that he told Korman
about some of the risks of the procedure at this time.
Talked about infection, hemorrhage,
nipple numbness, scars, possible need for
implant to give upper fullness as well as
nipple turning black and falling off. . . .
Talked about how they heal in a different
way, there can be allergies, infections,
hemorrhage, numbness, scar capsules they
would feel hard but get softer.
Lasky confirms that Dr. Mallin informed Korman of the risks of
the procedure, including the risk of permanent scarring. In her
deposition, Korman stated that in this discussion Dr. Mallin told
her
about the scarring, about what I could
expect; the results . . . and . . . a little
bit about insurance.
Dr. Mallin then gave Korman pamphlets on reduction mammaplasty
and breast implants to read at home.2
Korman visited Dr. Mallin's office on May 4 to complete
the necessary consent forms. At this time, Dr. Mallin described
the proposed surgery and drew a diagram of the operative
procedure. While she was reading through the consent form,
Korman states that she expressed concern over the risk of
scarring and asked Dr. Mallin what she could expect. According
to Korman, Dr. Mallin told her that there was no cause for
concern.
His exact words to me were I've
done-- don't worry about it, I've done
hundreds of these. The worst that has ever
happened is I had a lady lose one of her
nipples; but her breasts were very large. I
think that you'll be happy with the results.
In her affidavit, Korman states that Dr. Mallin did not explain
to her "that thickened or widened scars[] and extremely painful
scars" could occur. She also states that he did not explain to
her in this context that her risk of scarring was 50% greater
because she was a smoker. However, Korman admits to reading the
following paragraph in "Dr. Mallin's Surgery and Procedure
Consent Form."
I am aware that all complications that
have been told to me either verbal or written
are increased by 50% because I smoke.
Lasky was also present during this discussion and
stated in her affidavit that Dr. Mallin answered Korman's
questions regarding her concerns of the risk of surgery and that
Korman indicated that she understood the risks and that all of
her questions were answered before she consented to the surgery.
Wendy Brown, one of Dr. Mallin's office employees, witnessed
Korman's execution of the consent forms and stated in her
affidavit that Korman indicated that all of her questions
regarding surgery were answered to her satisfaction and that she
understood that no guarantees were given to her concerning the
outcome of the surgery. Korman underwent surgery a few
days later. She was very unhappy with the results --
particularly the broad, wide and painful scars.
In April 1990 Korman filed this malpractice action
against Dr. Mallin, alleging both medical negligence and lack of
informed consent. Pursuant to AS 09.55.536, an Expert Advisory
Board was appointed to review Korman's medical malpractice claim.
In January 1991 the Board rendered its decision, finding that
Korman had not been injured by Dr. Mallin's care. The Board did
not address Korman's informed consent claim.
Following the Board's decision, Dr. Mallin moved for
summary judgment in May 1991. Korman opposed this motion.
After oral argument, Judge Hunt granted Dr. Mallin's motion,
commenting that reasonable minds "could not differ [in
concluding] . . . that under the facts of this case [Korman] did
give an informed consent, because she was advised of the scarring
risk." This appeal followed.
III. Discussion
A. Standard of Review
In reviewing a grant of summary judgment, we will
independently determine whether there were any genuine issues of
material fact and whether the moving party is entitled to
judgment as a matter of law. Drake v. Hosley, 713 P.2d 1203,
1205 (Alaska 1986). We must draw all reasonable inferences in
favor of the nonmoving party and against the movant. Swenson
Trucking & Excavating, Inc. v. Truckweld Equip. Co., 604 P.2d
1113, 1116 (Alaska 1980).
B. The Doctrine of Informed Consent
Alaska Statute 09.55.556(a) provides that a physician
is liable for failure to obtain the informed consent of a patient
if
the claimant establishes by a
preponderance of the evidence that the
provider has failed to inform the patient of
the common risks and reasonable alternatives
to the proposed treatment or procedure, and
that but for that failure the claimant would
not have consented to the proposed treatment
or procedure.
AS 09.55.556(a).
Although AS 09.55.556(a) states that a physician must
disclose the common risks and reasonable alternatives to a
proposed procedure, it does not set forth the standard by which
this disclosure should be measured.3 The legislative history is
similarly silent on this issue. This is a question of first
impression in Alaska.4
Traditionally, a physician's duty to disclose
information concerning treatment has been measured by the
professional standard in the field. See, e.g., Potter v. Wisner,
823 P.2d 1339, 1341 (Ariz. App. 1991); Jacobs v. Painter, 530
A.2d 231 (Me. 1987). See generally Laurent B. Fantz, Annotation,
Modern Status of Views as to General Measure of Physician's Duty
to Inform Patient of Risks of Proposed Treatment, 88 A.L.R.3d
1008, 1020-27 (1978). This rule reflects the belief that holding
a physician to a lay standard of disclosure would interfere with
the flexibility a physician must have in determining what therapy
would best suit the patient's needs. See Ross v. Hodges, 234 So.
2d 905, 908-09 (Miss. 1970). In order to establish a prima facie
case, a plaintiff must usually present expert testimony of the
professional standard of disclosure in the community and of the
physician's failure to meet that standard. See Culbertson v.
Mernitz, 602 N.E.2d 98, 102-04 (Ind. 1992) (expert testimony of
professional standard of disclosure required except where
deviation from the standard of care is a matter commonly known to
lay persons); see also Daniel E. Feld, Annotation, Necessity and
Sufficiency of Expert Evidence to Establish Existence and Extent
of Physician's Duty to Inform Patient of Risks of Proposed
Treatment, 52 A.L.R.3d 1084, 1091-92 (1973).
However, the modern trend is to measure the physician's
duty of disclosure by what a reasonable patient would need to
know in order to make an informed and intelligent decision. The
Louisiana Supreme Court has articulated this standard as follows:
The informed consent doctrine is based
on the principle that every human being of
adult years and sound mind has a right to
determine what shall be done to his or her
own body. Surgeons and other doctors are
thus required to provide their patients with
sufficient information to permit the patient
to make an informed and intelligent decision
on whether to submit to a proposed course of
treatment. Where circumstances permit, the
patient should be told the nature of the
pertinent ailment or condition, the general
nature of the proposed treatment or
procedure, the risks involved in the proposed
treatment or procedure, the prospects of
success, the risks of failing to undergo any
treatment or procedure at all, and the risks
of any alternate methods of treatment.
Hondroulis v. Schuhmacher, 553 So. 2d 398, 411 (La. 1989)
(citations omitted). See generally Fantz, supra, at 1034-43.
Under this modern view, expert testimony concerning the
professional standard of disclosure is not a necessary element of
the plaintiff's case because the scope of disclosure is measured
from the standpoint of the patient.
Our recent comments on the nature of the physician-
patient relationship echo the concerns outlined by the Hondroulis
court.
The physician-patient relationship is
one of trust. Because the patient lacks the
physician's expertise, the patient must rely
on the physician for virtually all
information about the patient's treatment and
health. A physician therefore undertakes,
not only to treat a patient physically, but
also to respond fully to a patient's inquiry
about his treatment, i.e., to tell the
patient everything that a reasonable person
would want to know about the treatment.
Pedersen v. Zielski, 822 P.2d 903, 909 (Alaska 1991) (citations
omitted). We are persuaded that the modern view is the better
rule and hold that the scope of disclosure required under AS
09.55.556(a) must be measured by what a reasonable patient would
need to know in order to make an informed and intelligent
decision about the proposed treatment.
Under the reasonable patient rule, a physician must
disclose those risks which are "material" to a reasonable
patient's decision concerning treatment. See Hondroulis, 553 So.
2d at 411; Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972),
cert. denied, 409 U.S. 1064 (1972).
The determination of materiality is a
two-step process. The first step is to
define the existence and nature of the risk
and the likelihood of its occurrence. "Some"
expert testimony is necessary to establish
this aspect of materiality because only a
physician or other qualified expert is
capable of judging what risk exists and the
likelihood of its occurrence. The second
prong of the materiality test is for the
trier of fact to decide whether the
probability of that type of harm is a risk
which a reasonable patient would consider in
deciding on treatment. The focus is on
whether a reasonable person in the patient's
position would attach significance to the
specific risk. This determination does not
require expert testimony.
Hondroulis, 553 So. 2d at 412.
We also note that, in certain circumstances, a
physician's failure to disclose a risk may be privileged.
[T]he physician retains a qualified
privilege to withhold information on
therapeutic grounds, as in those cases where
a complete and candid disclosure of possible
alternatives and consequences might have a
detrimental effect on the physical or
psychological well-being of the patient, or
where the patient is incapable of giving his
consent by reason of mental disability or
infancy, or has specifically requested that
he not be told. Likewise the physician's
duty to disclose is suspended where an
emergency of such gravity and urgency exists
that it is impractical to obtain the
patient's consent. Finally disclosure is not
required where the risk is either known to
the patient or is so obvious as to justify
presumption of such knowledge, nor is the
physician under a duty to discuss the
relatively remote risks inherent in common
procedures, when it is common knowledge that
such risks inherent in the procedure are of
very low incidence. Conversely, where the
physician does not know of a risk and should
not have been aware of it in the exercise of
ordinary care, he is under no obligation to
make disclosure.
Sard v. Hardy, 379 A.2d 1014, 1022-23 (Md. 1977); Canterbury, 464
F.2d at 788-79; see generally Alan Meisel, The "Exceptions" to
the Informed Consent Doctrine: Striking a Balance between
Competing Values in Medical Decisionmaking, 1979 Wis. L. Rev.
413. As noted by the courts which have examined this issue, the
burden of going forward with evidence pertaining to a privilege
rests on the physician in whose hands the necessary evidence
ordinarily rests. See Hondroulis, 553 So. 2d at 413; Canterbury,
464 F.2d at 791.
C. The Adequacy of Dr. Mallin's Disclosure
After deciding which legal standard to apply, the issue
becomes whether the information Dr. Mallin provided Korman
satisfies this standard as a matter of law. Although Korman
maintains that a patient would have "no inkling"that painful and
unsightly scarring is a normal consequence of uncomplicated
breast reduction surgery after reviewing the pamphlets, videos
and consent forms provided by Dr. Mallin, we cannot agree. Dr.
Mallin's office notes indicate he discussed scarring at both
visits. Both the videos and pamphlets provided by Dr. Mallin
emphasize that breast reduction surgery resulted in permanent
scars. Finally the consent forms signed by Korman specifically
refer to the risk of "unsightly and painful scarring." The
trial court concluded that the information Dr. Mallin provided
Korman clearly advised her of the scarring risk and therefore
granted Dr. Mallin's motion for summary judgment.
Nonetheless, merely identifying a risk does not
necessarily provide a patient with the information necessary for
an informed decision.5 For a trial court to decide on summary
judgment that a doctor has disclosed sufficent information to
allow a reasonable patient to make an informed decision about
treatment, the record must establish that the physician explained
to the patient in lay terms the nature and severity of the risk
and the likelihood of its occurrence. See Hondroulis, 553 So. 2d
at 420. After reviewing the record on appeal, we are
unable to conclude that Dr. Mallin's explanation of the risks
inherent in this procedure satisfied his duty of disclosure as a
matter of law. In her affidavit, Korman states that she
requested additional information about the scarring at the second
consultation and that, in response, Dr. Mallin told her "not to
worry"and that she would be happy with the results. A number of
courts have held that a patient's request for more detailed
information regarding a risk is a factor in determining whether
there has been adequate disclosure. See Distefano v. Bell, 544
So. 2d 567, 571 (La. App. 1989) (holding that physician's duty
of disclosure was "expanded"when patient requested physician to
explain the "least likely"complications of proposed surgery),
writ denied, 550 So. 2d 650 (La. 1989); see also Kinikin v.
Heupel, 305 N.W.2d 589, 595 (Minn. 1981) (holding that where a
doctor is aware or should be aware that a patient attaches
particular significance to a risk, further disclosure may be
required even under the professional community standard). Our
own comments in Pedersen emphasize a physician's duty to respond
fully to a patient's questions concerning treatment. 822 P.2d at
909.
Furthermore, although it is undisputed that Korman read
that portion of the consent form which states that all risks of
the procedure were increased by 50% because she smoked, this
information has little meaning in the absence of a base
probability figure establishing the average risk to an average
patient. The record does not indicate that Dr. Mallin disclosed
to Korman the probability that painful and unsightly scarring
would occur in her case or explained the increased risk of such
scarring attributable to smoking. Cf. Barner v. Gorman, 605 So.
2d 805, 806 (Miss. 1992) (where plaintiff, who underwent plastic
surgery to minimize prominent neck scar, alleged that the surgeon
had failed to disclose to her the risk of more severe scarring
inherent in that procedure despite the fact that the risk of such
recurrence was greater in a patient with her skin coloring); see
also Nisenholtz v. Mount Sinai Hosp., 483 N.Y.S.2d 568, 570 (N.Y.
Sup. 1984) (holding that physician has a duty to provide a
"reasonable explanation" of potential risks and available
alternatives under New York informed consent statute).
There is no question that an individual contemplating
elective cosmetic surgery will attach particular significance to
the risk of "unsightly and painful"scarring. Although Dr.
Mallin certainly provided Korman with a significant amount of
information concerning the proposed procedure and its attendant
risks, we cannot say that he satisfied his duty of disclosure as
a matter of law in light of the above circumstances. "Whenever
nondisclosure of particular risk information is open to debate by
reasonable-minded men, the issue is for the finder of facts."
Canterbury, 464 F.2d at 788 (footnote omitted). We conclude that
it is a factual question whether Dr. Mallin's explanation of the
scarring risk was adequate to allow a reasonable patient to make
an informed and intelligent decision whether to undergo the
procedure.
IV. Conclusion
We conclude that a physician must provide a patient
with a reasonable explanation of the material risks of a proposed
procedure so that the patient can make an informed decision
concerning treatment. Taking the record in the light most
favorable to Korman, we cannot conclude that Dr. Mallin
discharged this duty as a matter of law. We therefore reverse
the trial court's entry of summary judgment in favor of Dr.
Mallin and remand for jury consideration of this issue.
REVERSED and REMANDED.
_______________________________
1. The first videotape, entitled "Realistic Expectations,"
provides a general overview of the risks and benefits of plastic
surgery. The second videotape, entitled "Reduction Mammaplasty,"
focuses on the breast reduction procedure itself. Both videotapes
emphasize that plastic surgery results in permanent scars and
that the degree of scarring is unique to each patient.
2. The pamphlet on breast reduction provides the following
information on scarring.
Although the surgeon makes every effort
to keep scars as inconspicuous as possible,
reduction mammaplasty scars are extensive and
permanent. The patient must be willing to
accept the change from large uncomfortable
breasts without scars to small comfortable
breasts with scars. Scars remain highly
visible for a year following surgery, then
fade to some degree.
Line drawings indicate the location of the incisions and
resulting scars.
3. Compare AS 09.55.540(a)(1) which requires a patient to
establish the professional standard of care in the field or
speciality as one element of a medical negligence claim.
4. Prior to the enactment of AS 09.55.556, this court
specifically declined to reach "the difficult and complex
questions . . . regarding the duty and scope of disclosure
required by the informed consent doctrine." Poulin v. Zartman,
542 P.2d 251, 275 (Alaska 1975) (holding that father of infant
blinded after oxygen treatment failed to make out a prima facie
informed consent claim because he failed to show that he would
have declined the procedure if he had known of alternative
treatment).
5. It is meaningless to tell a patient that a given risk is
increased by 50% unless the patient is also told the original or
baseline risk factor. For example, assuming the risk of
unsightly scarring for nonsmokers is 2%, the risk for a smoker
rises to 3%. However, if the risk factor for nonsmokers is 20%,
the risk for a smoker rises to 30%, a very significant increase.
A physician must not only disclose the identity of all known
material risks, but also the likelihood of their occurrence in
meaningful terms. See Hondroulis, 553 So. 2d at 420.
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