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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Harrold v. Artwohl, M.D. (03/31/2006) sp-5998
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| FRANK HARROLD, | ) |
| ) Supreme Court No. S- 11638 | |
| Appellant, | ) |
| ) Superior Court No. | |
| v. | ) 3AN-02-10500 CI |
| ) | |
| ROBERT R. ARTWOHL, M.D., | ) O P I N I O N |
| ) | |
| Appellee. | ) No. 5998 - March 31, 2006 |
| ) | |
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Peter A. Michalski, Judge.
Appearances: Robert J. Jurasek, Pentlarge
Law Group, Anchorage, for Appellant. Howard
A. Lazar and James J. Fayette, Delaney,
Wiles, Hayes, Gerety, Ellis & Young, Inc.,
Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Fabe, and Carpeneti, Justices. [Eastaugh,
Justice, not participating.]
BRYNER, Chief Justice.
I. INTRODUCTION
After learning that he probably had appendicitis, Frank
Harrold consented to immediate surgery to remove his appendix.
The appendix turned out to be healthy. Harrold then sued his
surgeon for failing to give him enough information to provide an
informed consent, but the superior court dismissed the claim on
summary judgment. The main question in this appeal is whether
Harrold raised any genuine issues of material fact requiring a
trial. Because evidence in the record suggests that Harrold may
not have been told that a CT scan could have ruled out the need
for immediate surgery, and because he reasonably could have
believed that this information was important in deciding whether
to give his consent, we hold that a triable issue of fact has
been raised, protecting Harrolds claim against summary judgment.
II. FACTS AND PROCEEDINGS
Frank Harrold came to the emergency room at Providence
Hospital in Anchorage to get help for abdominal pain. He
reported that he had been seen for kidney stones a month before;
a CT scan performed then suggested that he had an appendicolith
a calcified mass in the appendix. The emergency room physician
examined Harrold, suspected appendicitis, and summoned the on-
call surgeon, Dr. Robert Artwohl.
Dr. Artwohl came to the emergency room, examined
Harrold, and confirmed that Harrold probably did have
appendicitis. The doctor discussed Harrolds symptoms with him,
told him about the possibility of performing another CT scan, but
advised Harrold that it would probably be best to simply remove
the appendix immediately, since the appendix would always be at
issue if Harrold had future similar episodes of abdominal pain.
Harrold agreed with the recommendation. After he
finished speaking with Dr. Artwohl, he signed an informed consent
form in the presence of registered nurse Vera Belic. Dr. Artwohl
then operated and removed Harrolds appendix. During the surgery
Dr. Artwohl saw no signs of infection in or around Harrolds
appendix; tests conducted after the operation confirmed that the
appendix was normal. Harrold eventually sued Dr. Artwohl,
claiming that the doctor had failed to provide Harrold enough
information to allow him to give an informed consent. Harrold
also claimed that Dr. Artwohl committed medical malpractice by
performing unnecessary surgery.
The superior court dismissed the malpractice claim
because Harrold failed to offer any expert evidence of medical
malpractice to counter evidence offered by Dr. Artwohl.1 Dr.
Artwohl then moved for summary judgment on the informed consent
claim, asserting that he had given Harrold enough information to
make an intelligent treatment decision and that Harrold had given
informed consent. In support of his motion, Dr. Artwohl
submitted a copy of the informed consent form that Harrold had
signed, as well as an affidavit by Nurse Belic, who had witnessed
the signature, outlining the procedures she had followed to
ensure that Harrold understood what he was signing.
Dr. Artwohl also submitted his own affidavit,
transcripts of depositions that he and Harrold had recently
given, and other relevant hospital records. The hospital records
included the following entry from Dr. Artwohls pre-operative
report:
The possibility of obtaining another CT scan
was discussed, but in reality if this patient
has more episodes of right lower quadrant
pain, the appendix will always be at issue.
So, we decided to proceed directly to
appendectomy. I told the patient that he has
approximately 15% chance that a normal
appendix will be found. The technique of
open versus laparoscopic was discussed and
the patient states that he feels like he
would like a laparoscopic approach because I
told him that this usually involves a lot
less incisional pain and he could go back to
work a lot quicker.
Dr. Artwohls affidavit echoed this account of his discussion with
Harrold. The doctor relied on these statements in moving for
summary judgment, arguing that his evidence supported the
conclusion that Harrold had received enough information to make
an intelligent treatment choice.
Dr. Artwohl further maintained that Harrold had failed
to offer any contrary evidence. In making this argument, the
doctor pointed to Harrolds recent deposition testimony. During
his deposition, Harrold testified that although he recalled
discussing the need for an appendectomy with Dr. Artwohl, he did
not remember discussing the possibility of getting another CT
scan; nor did he recall being told that there was a fifteen
percent chance that his appendix was healthy. Yet Harrold
conceded the possibility that these matters might have been
discussed and that he might simply have forgotten the discussion.
Harrold also readily admitted that if he had indeed been told
that there was an eighty-five percent chance that he had
appendicitis, he would have agreed to the surgery.
Given these concessions, Dr. Artwohl insisted that
Harrolds general inability to recall what had been discussed did
not raise a genuine issue of fact reasonably tending to dispute
the specific evidence describing what was actually discussed.
Harrold opposed Dr. Artwohls motion for summary
judgment, insisting that evidence in the record raised multiple
issues of fact as to whether he had received enough information
to make an informed treatment choice. Harrold pointed to an
affidavit by his sister describing a post-surgical statement by
Dr. Artwohl that, in Harrolds view, raised doubts about whether
the doctor had reviewed Harrolds prior CT scan. He further
argued that the implied consent form raised factual issues
because it made no mention of the specific advice described in
Dr. Artwohls pre-operative report and because Harrolds signature
on the form had been witnessed by Nurse Belic, instead of by Dr.
Artwohl himself an impermissible procedure according to Harrold.
Harrolds opposition also focused on a statement made by
Dr. Artwohl in his deposition. During his testimony, the doctor
acknowledged that if Harrold had been given a CT scan before
having to decide if he wanted to proceed with the appendectomy,
the scan could have established almost conclusively whether he
actually did or did not have appendicitis: according to Dr.
Artwohl, the additional test would have ruled out or ruled in
appendicitis with a high degree of accuracy . . . 98 percent. In
relevant part, Dr. Artwohl testified as follows:
Q And do you see anywhere on that consent
form where it states that a [CT] scan can
conclusively determine whether or not you
have appendicitis?
A I would never tell a patient that a [CT]
scan can conclusively demonstrate. I would
tell a patient they can predict with a high
degree of accuracy, but, no, its not on
there.
Q What would be a high degree of accuracy?
A 98 percent.
Q So it would have been 98 percent likely
that if a [CT] scan was taken, it would have
ruled out appendicitis?
A Ruled out or ruled in, yes.
This testimony prompted Harrold to submit a new affidavit, in
which he asserted that nobody had ever told him that the scan
could be so precise in detecting appendicitis; if he had known
that the test could have ruled out the possibility of
appendicitis, Harrold claimed, he would have gladly taken that
option.
After considering the motion for summary judgment and
the opposition, the superior court granted Dr. Artwohls motion
and dismissed Harrolds informed consent claim.2
III. DISCUSSION
On appeal Harrold challenges the superior courts
decision to dismiss his informed consent claim on summary
judgment.3 Harrold insists, as he did below, that the evidence
concerning his informed consent claim raises triable issues of
material fact that preclude deciding the claim on summary
judgment. In response, Dr. Artwohl maintains that he is entitled
to summary judgment because he presented undisputed evidence
establishing that Harrold received all the information he needed
to give an informed consent. In Dr. Artwohls view, Harrolds near-
total failure of memory is insufficient to create a genuine issue
of disputed fact.
We independently review orders granting summary
judgment, drawing all reasonable inferences in favor of the non-
moving party.4 We will affirm the trial courts order when the
evidence establishes that there are no genuine issues of material
fact and that the moving party is entitled to judgment as a
matter of law.5 The party seeking summary judgment must make a
prima facie showing that he or she is entitled to judgment on the
established facts as a matter of law. . . .6 Once this showing
has been made, the opposing party must demonstrate that a genuine
issue of fact exists to be litigated by showing that it can
produce admissible evidence reasonably tending to dispute the
movants evidence.7
Here, we must apply these standards within the
framework of our statutes and caselaw defining informed consent.
We have previously recognized that [t]he 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.8 Alaska Statute 09.55.556 describes
the basic duty to obtain informed consent by requiring that a
health care provider inform the patient of the common risks and
reasonable alternatives to the proposed treatment or procedure.9
We have emphasized that the scope of this duty must be viewed
from the patients perspective, not the doctors;10 in keeping with
this view, we have construed the statute to measure[] the
physicians duty of disclosure by what a reasonable patient would
need to know in order to make an informed and intelligent
decision.11 This perspective applies in determining all aspects
of compliance with the duty, including determinations involving
the existence and nature of a risk, the likelihood of its
occurrence, and the probability that a reasonable patient would
consider the information important when deciding on treatment.12
We have also emphasized that determinations applying the
reasonable patient standard must usually be left to the jury:
Whenever nondisclosure of particular risk information is open to
debate by reasonable-minded [persons], the issue is for the
finder of facts.13
Harrolds strongest basis for claiming that he has
raised a genuine dispute on the issue of informed consent under
these standards centers on whether he received enough information
about the possibility of having a CT scan before opting for
surgery. As mentioned above, Dr. Artwohl explained in his
deposition that a CT scan would have ruled in or ruled out the
presence of appendicitis with a ninety-eight percent degree of
certainty. In effect, then, viewing this testimony in the light
most favorable to Harrold, the doctor acknowledged that a CT scan
would have established to a near certainty whether Harrold
actually needed immediate surgery. But Dr. Artwohl apparently
may not have explained this to Harrold.
Dr. Artwohl stated in his affidavit that he discussed
the possibility of another CT scan with Harrold, but recommended
against choosing that option; he advised Harrold that there was a
15% chance that a normal appendix would be found if Harrold
consented to immediate surgery. But the doctor thought it would
be best to proceed with appendectomy because, in the case of
continuing pain, [Harrolds] appendix would always be an issue.
Dr. Artwohl testified that Harrold then decided to proceed with
appendectomy.
When we read these statements in the light most
favorable to Harrold, as we must in reviewing an order granting
summary judgment, they suggest that Dr. Artwohl advised Harrold
to forgo a CT scan and proceed directly to surgery despite a
sizable chance that immediate surgery might not be needed. To be
sure, Dr. Artwohl also told Harrold why the doctor thought
Harrold might as well proceed with the appendectomy even though
there was a fifteen percent chance that it might not be
necessary. But Dr. Artwohls accounts of his conversation with
Harrold do not assert, or even suggest, that the doctor explained
what a CT scan could have shown that the test could have almost
completely eliminated the existing uncertainty of Harrolds need
for immediate surgery. And we find nothing in the record to
suggest that it would have been unreasonable to give Harrold this
information.
For his part, Harrold flatly asserts that he was never
told how exact a CT scan could be. Although he testified at his
deposition that his lack of memory prevented him from
specifically denying that Dr. Artwohls version of events might
true, in opposing the summary judgment motion Harrold submitted
an affidavit that is unequivocal on this point:
At no time did Dr. Artwohl or the nurse or
anyone at the office state that another [CT]
Scan would show to a 98% degree of
reliability that I did or did not have
appendicitis. It was my understanding from
the discussions with Dr. Artwohl that I had
to have the laparoscopic appendectomy. He
did not tell me it could be prevented with a
simple [CT] Scan which would show to a 98%
degree of reliability that I in fact did not
have appendicitis.
In response, Dr. Artwohl argues that Harrolds mere
inability to recall what happened is too speculative a basis to
sustain a genuine issue of fact that would reasonably tend to
dispute the evidence on this point. But this argument focuses on
the equivocal statements Harrold made in his deposition
testimony. Harrolds statements in his later affidavit are
neither speculative nor equivocal: based on personal knowledge,
he professes to be certain that nobody ever told him that a CT
scan could confirm his condition to a ninety-eight percent level
of certainty. Nor is this claim defeated by Harrolds earlier
statements acknowledging an inability to recall exactly what Dr.
Artwohl had said. The credibility of Harrolds claim cannot be
considered at summary judgment: we must assume that his claim is
true. And even if credibility could be considered, his claim
would not necessarily conflict with his earlier testimony.
Dr. Artwohl has never asserted that he told Harrold what a CT
scan would do, so Harrolds current certainty on this point
coincides with the doctors account. It does not conflict with
Harrolds earlier inability to contradict what Dr. Artwohl claims
to have said.
In short, we conclude that Harrolds new affidavit
raised a genuine factual dispute as to whether he was told that a
CT scan could effectively rule out appendicitis, thus potentially
offering a desirable alternative to immediate surgery. This
dispute does not automatically qualify as a triable issue of
fact. Because conflicting evidence precludes summary judgment
only when the conflict involves material facts, we must ask
separately if the issue disputed here is material. As we
indicated above, compliance with the duty to obtain informed
consent must ultimately be judged by what a reasonable patient
would want to know.14 And when the question of what a reasonable
patient would deem important is open to legitimate debate, it
must ordinarily be decided at trial by the finder of facts.15
Here, we think that reasonable-minded jurors viewing
the record in the light most favorable to Harrold could
legitimately debate whether Dr. Artwohl told Harrold what a CT
scan was capable of ascertaining: standing alone, the mere
mention of the possibility of obtaining another CT scan might
fail to convey any indication that this possibility would offer a
significant increase in certainty. We similarly think that
jurors could fairly debate whether a reasonable patient in
Harrolds shoes would have wanted to hear this information before
deciding on the appendectomy. As matters apparently stood
without the information, Harrold knew that, by Dr. Artwohls
estimate, he faced an eighty-five percent chance of having
appendicits and a fifteen percent chance of having a healthy
appendix. Had information about the CT scans accuracy been
disclosed, Harrold would have gained the knowledge that further
testing would either confirm to a near certainty that he needed
immediate surgery or all but eliminate the chance that he had
appendicitis. Given the obvious risk of refusing surgery in the
face of an eighty-five percent chance of appendicitis, a fair-
minded juror could find that a patient in Harrolds position might
reasonably view this additional knowledge as crucial.
Because the dispute involves a genuine issue of fact,
we hold that the superior court erred in granting summary
judgment against Harrold.16
IV. CONCLUSION
We REVERSE the superior courts judgment and REMAND the
case for further proceedings.
_______________________________
1 Harrold does not challenge the superior courts order
dismissing his malpractice claim, so we need not address that
ruling.
2 Harrold initially failed to submit a timely opposition
to Dr. Artwohls motion for summary judgment, so the superior
court entered an order granting the motion because it was
unopposed. Harrold then moved for reconsideration and submitted
a late opposition to the summary judgment motion, together with a
motion to accept his late opposition. The superior court granted
Harrolds motion to accept the late opposition but declined to
reconsider its order granting summary judgment. Given these
circumstances Dr. Artwohl acknowledges that the superior court
considered Harrolds opposition in reaching its ultimate ruling
and did not dismiss the informed consent claim merely because the
claim was unopposed.
3 Harrold also appeals the superior courts order awarding
Dr. Artwohl prevailing-party attorneys fees. Our decision on the
merits of Harrolds claim makes it unnecessary to address this
issue.
4 See Kaiser v. Umialik Ins., 108 P.3d 876, 879 (Alaska
2005); Sonneman v. State, 969 P.2d 632, 635 (Alaska 1998).
5 Sonneman, 969 P.2d at 635.
6 French v. Jadon, Inc., 911 P.2d 20, 23 (Alaska 1996)
(citing Wassink v. Hawkins, 763 P.2d 971, 973 (Alaska 1988)).
7 Id.
8 Parker v. Tomera, 89 P.3d 761, 769 (Alaska 2004)
(quoting Korman v. Mallin, 858 P.2d 1145, 1149 (Alaska 1993)).
9 AS 09.55.556(a). The statute also defines the
necessary elements of a cause of action for failure to obtain
informed consent and establishes several defenses:
(a) A health care provider 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.
(b) It is a defense to any action for
medical malpractice based upon an alleged
failure to obtain informed consent that
(1) the risk not disclosed is too commonly
known or is too remote to require disclosure;
(2) the patient stated to the health care
provider that the patient would undergo the
treatment or procedure regardless of the risk
involved or that the patient did not want to
be informed of the matters to which the
patient would be entitled to be informed;
(3) under the circumstances consent by or on
behalf of the patient was not possible; or
(4) the health care provider after
considering all of the attendant facts and
circumstances used reasonable discretion as
to the manner and extent that the
alternatives or risks were disclosed to the
patient because the health care provider
reasonably believed that a full disclosure
would have a substantially adverse effect on
the patients condition.
10 Marsingill v. OMalley, 58 P.3d 495, 503 (Alaska 2002).
11 Id. (citing Korman, 858 P.2d at 1149).
12 Id. (citing Korman, 858 P.2d at 1149).
13 Korman, 858 P.2d at 1151 (citing Canterbury v. Spence,
464 F.2d 772, 788 (D.C. Cir. 1972)).
14 Marsingill, 58 P.3d at 504.
15 Korman, 858 P.2d at 1151.
16 Harrolds remaining summary judgment arguments require
only brief mention. We find no merit to Harrolds contention that
the implied consent form obtained here was invalid because it was
witnessed by Nurse Belic instead of being signed in Dr. Artwohls
presence. Neither AS 09.55.556 nor its implementing regulation,
7 AAC 12.120, can be reasonably read to require that the treating
physician personally read the consent form to the patient or
witness the patients signature. Harrold misreads Ward v.
Lutheran Hospitals & Homes Society of America, Inc., 963 P.2d
1031, n.12 (Alaska 1998), as providing support for his position.
Ward simply recognizes that the duty to obtain informed consent
extends only to a health care provider who proposes and directs
the procedure at issue; it does not imply that a provider to whom
this duty extends is the only person who can obtain the consent.
We similarly find no merit in Harrolds assertion that a
genuine issue of material fact arises from the fact that his
implied consent form fails to recite the specific information
that Dr. Artwohl claims he discussed with Harrold. Neither the
statute nor the regulation requires the form to recite the
information communicated in obtaining informed consent.
Last, we reject Harrolds contention that his sisters
affidavit raises a genuine factual dispute concerning Dr.
Artwohls awareness of Harrolds previous CT scan. The affidavit
asserts that Dr. Artwohl asked Harrolds sister after the surgery
whether Harrold had previously had his appendix x-rayed; but
standing alone, the mere fact that Dr. Artwohl asked about
previous x-rays does not support a reasonable inference that he
must not have known about the recent CT scan.
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