*1
possessed
or
ceived
accused with
P.2d 645
procure
it”;
intent to
or pass
title
Henry
DEMERS, Plaintiff-Appellee
C.
only
statute defines
one
De-
crime.
Cross-Appellant,
requested
fendant submitted two
instruc-
tions, the first consisting
of verbatim
GERETY,
Edward
Defendant-Appellant
J.
69-9-5,
cital
supra.
part
Cross-Appellee.
The first
§
dealing
section
procure
with intent to
No. 1098.
pass
course,
is,
title
applicable
Appeals
Court of
Mexico.
New
given might
and to have
have misled the
Sept. 19, 1973.
jury.
Beal,
State v.
N.M.
Certiorari Granted Oct.
1973.
331 (1951);
Vasquez,
State v.
83 N.M.
388,
We have reviewed the instructions
given. The trial court instructed
language of the statute. That was suffi Gunzelman,
cient. State v. 85 N.M. P.2d 55
Defendant claimed a lack of sub
stantial evidence to sustain a verdict of
guilty. The stolen car was found de
fendant’s garage. This pos is evidence of
session. defendant furnished some of purchase money car, for the and the
purchaser knew it Throughout was stolen.
the negotiations car, and sale of the de present.
fendant purchase price was car, condition, stolen because its very low. The thief lived on defend property
ant’s for a time. This is suffi
cient circumstantial evidence that defendant
knew or had reason to believe the had car
been unlawfully stolen or taken. State
Otero, (Ct.
App.1972); Lee, State v.
P.2d 184 (Ct.App.1972).
Finally, defendant contends it error permit to find defendant guilty
as an accessory when the information
charged principal. as a
This presented claim in the trial subject to review. Section
21-2-1 (20) (1), (Repl. N.M.S.A.1953 Vol.
4).
Affirmed.
It is so ordered. HERNANDEZ,
HENDLEY and JJ.,
concur. *2 perform
sent to surgery, and lack in- jury. formed consent to the Both motions were denied and the case was submitted to *3 jury the following unobjected on the in- struction : “The claims that he sustained damages proximate and that the cause thereof was one or more of the follow- ing claimed malpractice: acts of proceeded “1. The defendant per- operation form upon an him in so doing possess failed to apply knowledge and use the skill and care reasonably which would be used well qualified specialists in the field same practicing under similar circumstances. proceeded per- “2. The defendant operation upon form legal without a obtaining first consent therefor. Hall, Keown, Bruce Rodey, D. Stuart S. proceeded “3. The per- defendant Dickason, Sloan, Robb, A., Akin & P. Al- operation form buquerque, defendant-appellant for any which was different from cross-appellee. plaintiff. authorized Berry, Charles G. Berry, Marchiondo & prov- “The has burden of Mary Walters, plain- C. for Albuquerque, damage that he sustained tiff-appellee cross-appellant. one or more of the claimed acts was the proximate thereof. cause
OPINION plaintiff’s “The defendant denies claims. HENDLEY, Judge. you proved “If find that has After consideration of defendant’s mo- required him, your those claims then rehearing, tion for original opinion plaintiff. verdict should be for the withdrawn and following opinion hand, you “If on the find that other substituted. any required one of the claims From an adverse judgment a medical proved by plaintiff proved, has not been case, malpractice pursuant jury entered your then de- verdict should be verdict, appeals. appeal fendant.” raises three (1) issues: whether a verdict foregoing is in the al- instruction should have been directed or n. most identical "form the instruction entered; o. v. (2) whether certain instruc- quested by special interrog- No defendant. correct; tions were (3) whether the court requested. atories were returned erred in permitting a hypothetical certain a verdict in favor of expert to be asked of an witness. Subsequently, judg- defendant moved We affirm. a ment or in new n. o. v. the alternative At the close of case and trial, remittitur. or the alternative a
close of defendant’s case, defendant moved
The trial
denied the motion.
for a directed verdict
grounds
on the
lack of
opinion
substantial
purpose
evidence to submit *the
For
issues of medical
error
malpractice, lack of con-
assume that the trial court
colectomy
an excision
di-
wall. A
dominal
motion for
granting defendant’s
or colon.
large
bowel
part
all or
of medical
the theories
rected verdict
properly
ileostomy functioned
Plaintiff’s
consent.
malpractice
lack
informed
surgery.
after this
Styron, N.M.
Reed
See
are,
progeny.
how-
and its
(1961)
Albuquerque in 1965
moved to
Plaintiff
ever,
requesting an
faced with
defendant,
gener-
and first consulted
the case to
submitted
instruction which
At
surgeon,
al
1967.
on O.ctober
theory that “one
jury on
alternative
years
age
and had
time olaintiff was
.acts or omissions
more of
claimed
native
grade
Plaintiff’s
sixth
education.
This re-
cause thereof.”
proximate
French,
had some
language
and he
*4
totally inconsistent
quested instruction was
difficulty
English.
with
ver-
a directed
motion for
with defendant’s
be-
Plaintiff
the defendant
consulted
N.M.
Compare
Jones, 83
Platero
dict.
v.
lump
distance
of a
located some
cause
(Ct.App.1971).
was taken to After parol he was anes- ant- cites the evidence Defend- rule. proceeded perform thetized ant would have us hold that per- precluded parol examination which not be by could evidence rule from attempting formed while conscious. to show he did not in fact examination of the insertion of consisted consent to the revision his gloved plaintiff’s il- finger signing authority into operate. defendant’s the second eostomy ain an extent not manner Further, defendant cites the case of possible while conscious. Berard, Grannum v. 70 Wash.2d during prior examination and to P.2d 812 proposition for the (1967), the making any incisions that presumes competence law in one con- plaintiff’s protruded discovered that hernia senting to an a patient from the same opening the abdominal seeking pre- avoid the effect ileostomy. wall as did the It was at this sumption present must clear and convinc- point definitely that defendant concluded ing of his of capacity evidence lack to con- repair hernia would nec- sent. essarily require relocation revision of begin our discussion not ileostomy. proceeded to re- *5 ing that physician-patient the relationship pair hernia, ileostomy the revise the is fiduciary a one. Webb, Moore v. 345 S. repair hydrocele. the W.2d 239 (Mo.App.1961). See Woods v. Subsequent surgery plaintiff devel- Brumlop, 71 N.M. oped complications required surgery which (1962). physician The is required to exer on subsequent long two occasions and a good cise the utmost faith pa toward the Among course of other treatment. treat- tient throughout relationship. the doWe plaintiff’s ments, be had to inquire not physician whether has again vised to a location which is incon- gained an advantage performing surgery venient. or whether his conduct was fraudulent. point appeal argues
Defendant’s
only inquire
first
We
physician
on
whether the
vio
fiduciary duty.
was error for the trial
lated his
did, any
If he
refuse to
grant judg-
relationship
direct a
verdict
contractual
with the
is
against public policy.
ment n.
void
o.
Iriart v.
Johnson,
75 N.M.
(1965).
rule applicable
The
in considera
present
tion of a
In the
is
motion
directed
is
case it
not
verdict
nec
essary
that the
go
trial court
so far
view the evidence
as to find that
must
defend
light
knowingly
ant
party
fiduciary
most favorable to
violated his
duty.
re
sisting
jury
plaintiff
motion, indulge every
reason
instructed that
had
able
support
party
establishing
inference
burden of
re
lack men
sisting, ignore
competence
signed
tal
at
conflicts in evidence unfa
the time he
operate by
second
grant
authority
vorable to him
if
the motion
clear
convincing
might
minds
Proof of
reasonable
differ on the
evidence.
lack of ca
con
pacity
precluded by
parol
clusion to be reached
is not
on the evidence or
evi
permissible
Zumwalt,
dence
Archuleta
Van Meter v.
inferences.
rule.
John
ston,
Idaho
(1922).
Defendant’s second *6 by given the trial objection with to the third two instructions Defendant’s part on is damage first was the instruction court. The of the instruction plaintiff damages. portions present pain of that in from his The relevant suffers no appears read follows: also ileostomy. struction Defendant argue any that there is no evidence of the you “If decide in favor should possible plaintiff may pain future liability, you question on the proximately by caused de suffer will be money then fix the amount must tortious Defendant’s fendant’s conduct. compen- fairly reasonably and which will argument indulge in asks this court following ele- any him sate for speculation basis on which about the by damages proved ments of jury damages pain suffer awarded and wrongful con- to have resulted from ing. jury properly instructed to duct of the defendant: suffering pain award and damages nature, duration “1. The extent and experienced. be reasonably certain to injury. to fol will not assume that the failed applying the by low the instructions aggravation any pre-exist- “2. The “reasonably other certain” In standard. condition, you may but allow dam- words, pain reasonably if is certain to no itself, ages only aggravation for the and experienced jury award we assume the pre-existing for the condition. damages ed no basis. experi- pain suffering “3. The objection reasonably expe- enced Defendant’s last certain to be following in pertains rienced in as a result of the instructions future injury. . . .” struction : relationship a doctor puts “The between objection
Defendant to the first as a way: element is known in law is what instruction this “ * * * any view, fiduciary relationship, that a relation- Gerety Under Dr.
647
faith,
ship
reposing
confidence and
Inasmuch as
consent is matter
first
placing
by
impression
trust and the
Mexico,
of reliance
one
expert
New
tes-
timony
and advice of the
by
on disclosure needs clarification
other.”
this
Supreme Court,
court and the
this
concurring opinion is submitted.
appellate
Defendant’s
objection
instruction
it is “abstract”
FACTS MOST FAVORABLE
is not related to the
instruction itself
TO PLAINTIFF
any
plaintiff’s
recovery.
theories of
overlooks
fact that instruc
following
constitute the facts most
together,
tions are read
and that each need
favorable to
not,, within its
limits,
own
contain all ele
1963,plaintiff
In
operated
in Boston
Atchison,
ments. Eidson
Topeka
v.
colectomy.
for an
An ileos-
Railway Co.,
Santa Fe
80 N.M.
is an
tomy
operation to create an artificial
Roybal
Lewis,
P.2d 204 (1969);
79 N.
by
anus making
opening
from the ileum
227,M.
P.2d 756
all
When
through
colectomy
the abdominal
A
wall.
given in
instructions
this case are read to
part
an excision of all or
of the colon.
gether they fairly present the issues and
surgery,
Following
plaintiff’s
applicable
the law
Tapia
thereto.
v. Pan
properly.
functioned
Co.,
handle Steel Erectors
family
and his
moved
P.2d 625 (1967).
to Albuquerque.
The last issue
ap
raised
defendant on
30, 1967,
On October
first
peal deals with
hypo
of a
correctness
sought
defendant,
general
the services of
expert
thetical
asked of an
wit
surgeon. Plaintiff
years
age
was 40
pertains
plaintiff’s
ness. This issue
with a sixth-grade
Because of
education.
theory of
malpractice.
pre
As
background,
Canadian-French
it was dif-
discussed,
viously
verdict re
speak English
ficult for
fluent-
turned in
any
if
case will be affirmed
ly. His
language
common
was French.
one of
theories is sustained
spoke
He
English language only
Hopkins
Orr,
the evidence.
U.S. when he went to work.
It was hard for
(1888);
S.Ct.
L.Ed. 523
Ber
express
him to
clearly,
himself
and conver-
ger
Co.,
Cal.App.
v. Southern Pacific
*7
sation could
English.”
be termed “broken
2d
seeing paper hernia, or the revised the ileos- paired events the ventral hydrocele. An signature. tomy right and excised the by reason of abscess occurred abdominal P.M., gave plain- At around a nurse 9:30 surgery further led to the revision which put sleep. Late at tiff Nembutal to him to Plaintiff was thereafter. two occasions night, asleep, nurse while he was an abscess could never advised that pa- brought him a sheet of awoke him and surgery which a result of would occur as something sign. per The nurse told him surgery. caused additional forgotten completed. and had to be lights were Plaintiff could see. The to a not entitled A. Defendant put finger her where not on. nurse o. judgment n. directed verdict or signature placed plain- was to shakily signed signed tiff It was above it. signature. his first “Demers” He did directed verdict subject of On the *8 necessary paper v., know what was. it judgment n. is o. in Ar- set forth applicable rule state the plaintiff expressed Defendant admitted 380, 492 Johnston, 83 chuleta v. touched; concern that be (Ct.App.1971). 997 it prefer said he would forward, did not complaint be touched. Defendant know From the performed whether revision of would “sur- that defendant contended op- necessary before an examination upon plaintiff in areas for which gery erating a defect room. If he discovered claims now had no consent.” Defendant opening through sup- the hernia one in the no substantial evidence there was ileostomy protruded, he believed port which the of because the claimed lack consent possible repair the hernia without plaintiff’s consent written consent rendered ileostomy. vising conclusive; contradictory
649
Swan,
prior
subsequent
statements made
(1969-1970);
Rev. 628
The Califor-
written consent were ineffective
Malpractice
Physicians,
reason
nia
Law of
parol
Dentists,
Surgeons,
evidence rule.
do not
33
248
Calif.L.Rev.
agree.
(1945); Malpractice Duty
To
of Doctor
—
Operation,
Disclose Risk
40
Involved
surgical
Consent
treatment
is a matter
Landsverk,
(1955-1956);
Minn.L.Rev. 876
impression
of first
in New Mexico. We
Theory
Informal Consent As A
Medi-
Of
are faced only
express
with
written con-
Wis.L.Rev.1970,
Liability,
879;
cal
at
sent,
exceptions
absent
emergen-
such as
Weyandt,
Consent To
Valid
Medical
cies.
Know,
Treatment: Need The Patient
subject
consent,
On the
the rule in
Duquesne
(1965-1966);
U.L.Rev.
New Mexico is stated in
8.3 as fol-
U.J.I.
McCoid,
Required
Of Medical
Care
lows :
Practitioners,
(1958—
12 Vand.L.Rev. 549
A doctor must
legal
obtain a
consent
Karchmer,
1959);
A
Informed Consent:
either
or on
behalf of his
be-
Malpractice
Plaintiff’s Medical
“Wonder
fore
(operating
on him)
(medically
Drug”, 31 Mo.L.Rev. 29
Harv.
(1966); 75
treating him).
[Emphasis added]
L.Rev.
Obtaining “legal
mandatory.
consent” is
is
necessary
quote
It
to cite
au-
“Legal consent” means consent according
thority at length to establish the rule of
may
law.
It
be oral or written. To
consent in New Mexico.
liability,
avoid
“according to law” in medi-
For a historical review and
discussion
cal malpractice,
exceptions,
exclusive of
Spence,
this subject,
Canterbury
see
physician
surgeon
or
performs
op-
U.S.App.D.C.
utmost
the relation-
throughout
the existence of
Must Be
Express
Consent
(2)
Written
phy-
inquire whether
do not
ship. We
Direct,
Unequivocal.
Positive
perform-
advantage in
an
gained
sician has
First,
to defendant
stated
his conduct
or whether
ing surgery,
ileostomy opera-
express
on an
prohibition
only inquire whether
We
fraudulent.
clear, distinct,
:
precise words
in
tion
duty.
If
fiduciary
violated his
physician
words,
kept re-
and I
That’s the exact
relationship with
did, any contractual
he
thing.
No-
peating, “Do not touch
policy.
public
against
patient
void
*
* *
body
touch that
won’t
745, 411 P.2d
Johnson,
N.M.
75
Iriart v.
******
226
somebody is
if
going
go to Boston
It’s
to
Atchison,
reason,
T.
v.
Morstad
For
going
touch that.”
P. 886
Co.,
Ry.
& S. F.
express prohibition
The
forbade defend-
involves
applicable.
(1918)
prohibi-
beyond
go
the limits of this
ant to
before
a contract
read
duty
person
tion.
accept
do we
signs
Neither
he
the same.
operate,
first written consent
v.
in Drummond
stated
the doctrine
hospital,
in
(Tex.Civ.App.
signed by the
Hodges, 417 S.W.2d
authority
repair
signs
granted
a written
patient
1967) that a
who
consent was nev-
must
hernia. This
show the ventral
for the
authorization
de-
mistake,
This consent forbade
fraud, accident,
questioned.
undue influence
er
ileostomy.
fendant to revise
incapacity to avoid
consent.
mental
or
set forth
approve the doctrine
do not
rule,
philosophy
often
behind
Berard, 70
in
Wash.2d
Grannum
expressed by
Car-
quoted,
first
Justice
A.L.R.3d
dozo,
Hospi-
v. New York
Schloendorff
incapacity
case,
plaintiff claimed
tal,
125, 129, 105 N.E.
211 N.Y.
drugs.
the influence of
consent while under
(1914):
failed
held that
The court
Every
being
years
human
adult
convincing
clear,
cogent, and
overcome
right
sound
has a
to determine
mind
compre-
he
evidence,
presumption that
body;
what shall
done with
own
nature, terms,
effect
hended the
performs
opera-
surgeon
and a
operation.
surgical
consent for the
patient’s
tion without his
consent com-
assault,
mits an
is liable
relied on
defend-
The above are cases
Mexico,
damages.
malpractice
ant.
In New
tort,
is 'an action in
contract. Schrib
seeks to overcome ex-
Defendant now
Seidenberg,
press
prohibition
oral
and limited written
law of con-
(Ct.App.1969).
touching
ileostomy,
Before
consent.
Webb,
applicable.
tracts
Moore v.
duty
explain
plain-
had a
supra.
in understandable-non-technical words
tiff
repair
ar-
of the hernia would
could
A
and the various
review case law
ileostomy;
necessitate the revision of
subject
unequivocally
proves
ticles on the
considered, defend-
concepts
that all circumstances
surrounding
the set of
uncertain,
during
plausible
choice of
courses
slippery
ant’s
doctrine
consent are
problem
surgery should not be called into
complex.
To avoid this
Mexico,
express
by plaintiff.
duty demanded
full
This
New
writ-
resolve
per-
of all
and frank disclosure to
governed by
fiduciary
ten consent is
repair
hernia
tinent
relative to
lationship.
demands that
facts
Modern medicine
ileostomy, in-
proximity
its
due to
place unquestionable
faith
*10
Moritz,
eluding
probability
supra, p.
says:
an
which
Stetler and
abscess
operations.
could
subsequent
lead to
prudent physician
will insist
Thereafter,
Brumlop, supra.
Woods
de-
writing
sufficiently
consent in
that is
duty
had a
inquire
fendant
to
specific
inclusive in both
and
au-
prohibi-
whether he would forsake the oral
thority
permit
good
to
him to follow
agree
tion and
an amended written con-
practices
medical
in all eventualities.
may
sent. “Increased communication
well
Physician
patient
and
should have
litigation.”
result in decreased
75 Harv.L.
clear understanding regarding
possible
Rev.
operation,
extension of the
in
Second,
case,
pro
in this
to void
oral
emergency
event of an
but also
hibition and to
medically
amend
limited written
where
is otherwise
advisa-
consent,
duty
defendant had a
to obtain an
ble.
consent,
express written
positive, direct
If there was no
understanding
clear
in
unequivocal
which authorized defend
case,
right
defendant had
refuse
operate
ant to
in accordance with the edu
Weis,
surgery. Childs v.
must know and understand that to which Casualty Surety Company, supra. & he is consenting. fiduciary aIn relation Whether consented to revision ship, burden is on and whether revision scrupulous good obtaining show faith in an proximate plaintiff’s injuries cause of express authority written operate or to he damages which was awarded were extend the when it conflicts with jury. issues of fact for the Defendant was unequivocal patient. beliefs of not entitled to a judg- directed verdict or ' j “The law will not allow a physician sub ment N.O.V. stitute his own judgment, no matter how founded, well patient.” that of his (3) An Educated Consent Not Was Itoh, Collins v. (Mont Granted For Failure .1972). To Disclose. Shinkle, supra, p. wrote: operating, Before failed to
With replac- the needle and the knife disclose to that as a result sur- large words, measure gery, the “kind might abscess form would water, cold therapy and bed rest” cause an obstruction of his bowels lead doctor, old country patient and with surgery. further Plaintiff asked presented himself into the doctor’s whether he surgery would consent to with- hand unquestioning with replaced faith out this disclosure but my the trial court in magazine-diagnosed opinion legally erroneously objection sustained patient, wise doctor has been because already advised had testified and often hospital, commanded interpret there was no consent. I this to lawyer, that, own hospital’s lawyer, disclosure, mean with plaintiff would magazines medical operation. written with a le- not have consented to the Un- slant, gal get highly specific theory, written give der this de- major per consent to a cent of the fendant proce- regardless an educated consent expects dures alleged express This ever do. wid- consent. ening paper web of slips has often Brumlop, The rule in supra, Woods v.
caused both assign doctor and must cited, It restated. has been dis- therapy greater consent to a much im- interpreted cussed and ways in various portance than courts have ever held it to articles, law review and suc- annotations have. ceeding jurisdictions. cases in other See litigation Plante, To avoid malprac- Karchmer, Meyers, Walts cases, Scheuneman, tice this court must supra. rise to the fore- Weyandt, sight medico-legal prophets widely above. discussed the trial of this case. *11 652 make a been court tient determine whether “ * * * sary guage 524, 525, states: [Emphasis added] However, plaintiff’s reliance no now, inquiry leged statement Thus, sary Plante, claimed that was the failure of Under fact sult ny. and it tion sult Woods, [*] problem arises due to to discuss the extent necessity given. said, to her used under allegation that issue to establish a full from such relies deceive Woods supra, all 71 N.M. at is believed no one [*] after and frank disclosure to the [Pjlaintiff, Woods from circumstances entirely pertinent jury upon- which truth in answer physician expert note was a granting discussing [*] presented for determina- such treatment. fiduciary expert patient. at dangers believed was treatment, 90, physician’s upon educated 226, 229, 227, upon her fraud or deceit case the breach testimony is no Jjc at facts. at a has medical 666, 377 P.2d harm new defendant’s of the loose the trial disclosure relationship, [*] consent had says: 377 trial. to a direct contention there was obligation might re- has ever * * * issue the could re- testimo- of' duty P.2d to case, a at neces- neces- [*] upon duty 524, lan- pa- tell al- at ” the treatment :mean is not ruling. after a reasonable medical have made form and advise P.2d at would have reasonable ure to for quences was malpractice-, and for * * * so herent circumstances and advise ger sis added] In Crouch No The Woods falsely [Emphasis added] same or similar recognized risks a treatment 250, advise which the expert medical authority malpractice. presented could result necessary upon 525, said: testimony advised in electroshock case, of disclose, Most, failure of a liable is liable for (1967) opinion, the doctor patient client, of this was cited for community. refused for determination recognised treatment. Such after there was no for a doctor who show what patient * * * inherent from the treatment. interpreted circumstances, would * * testimony. patient N.M. would practitioner, under which * * * is liable case, N.M. at patient failed physician to treatments, and malpractice. harmful * risks inherent 406, 410, that no dan- have refused in treatment a fact dangers in- the Under disclosures constitutes reasonable the above treatment, Woods to necessity [Empha- fails patient inform a by the conse- offer issue fail- 432 in- to It this case the circumstances Under (at then said 377 P. necessity for ex- there was no .
2d 525): [Emphasis add- testimony. pert medical that she would not Plaintiff testified ed] if treatments she consented have to advise? the failure include Did this probable made aware had been sowas considered. dangers resulting real therefrom. The requiring the rule disclosure basis for Brumlop, at Woods patient which to give a basis disclose, the duty to authority on cites as as to will exercise whether (Mo.1960), Robinson Mitchell v. case of consent to the treatment. Mitchell 11, A.L.R.2d 1017. 334 S.W.2d ** ‡ A physician * [*] failing .to # misleads a give [*] warning .also disapproved required. pointed out in Aiken v. Mitchell expert Clary, 396 testimony subsequently S.W.2d *12 668 (Mo.1965) which cited Woods v. Woods and Canterbury exceptions are Brumlop. the universal community rule rule is applicable standard test in
Karchmer, dis- 55, supra, at wrote: adopted closure. But it following rule Aiken, conclusion, In after it would (104 Cal.Rptr. 514, p. 502 P.2d 10): p. appear only remaining that the case not requiring testimony medical Therefore, area hold, this integral part is Brumlop, law Wood v. physician’s obligation [sic] overall 221, P.2d (1962), which re- the patient duty is there a reasonable lied on authority. Mitchell With disclosure the available choices with Aiken, Mitchell overruled is Woods respect proposed therapy and of the alone, left not unsupported, but and dangers inherently potentially and in- contrary is now to the majority of the [Emphasis volved each. added] legal writers and to the decided cases of This rule is a modification of Woods state, all English and Canadian and Canterbury requires which a “full Courts. frank patient perti- disclosure to the of all Plante, supra, Aiken. reviews In a note * * nent facts [Emphasis added] 665, on page Plante said the Missouri Su- Further citations and comments are not preme Court did not understand Woods v. necessary. Brumlop Woods v. stands on Brumlop. following rule: I cannot by reading tell Dett Witzke v. treating, In operating upon making or weiler, 802, (Ct. diagnosis a patient, physician a a has App.1972) whether rule which duty to make a full frank disclo- applies in examining, diagnosing patient sure pertinent of all facts treating patient, would reach failure to illness, treatment, relative to the surgery disclose. therapy prescribed or or recommended 599, Annot. 99 A.L.R.2d at If physician therefor. fails so ad- Woods v. is Brumlop interpreted as mean- “ or patient, vise inform the after which * * * that a fact been issue had would have refused the treat- presented for determination the jury as ment, surgery therapy performed, * * * to failure to disclose and that in physician has committed an act of mal- this connection necessity there was no practice and is all liable for harmful expert testimony.” medical consequences proxi- as a follow This conclusion is reached in Hunter v. mate cause of the failure disclose. Brown, 4 Wash.App. 484 fiduciary Because a relationship exists strength 1166 (1971). position of this physician between patient, expert upon fiduciary relationship based testimony necessary is not quoted Berkey Anderson, from 1 Cal. show what a practi- reasonable medical App.3d 790, 805, Cal.Rptr. 67, tioner would have disclosed under the “* ** physician’s duty to disclose [A] same or similar circumstances governed practice by the standard community. physicians’ community, duty 'but imposed by governs law which his conduct rule, Based was not in the same manner as others in a similar entitled to a directed verdict. ** fiduciary relationship B. Er- Instructions Given Not Were Canterbury Spence, supra, 464 F.2d at " roneous. ; Am.Jur.2d, 780 61 Physicians, Surgeons, etc., 154, support Woods in this area. § Defendant contends two instructions (2) (1) damages were erroneous: on Grant, 8
Cobbs v. 104 Cal. Cal.3d Rptr. fiduciary (1972), relationship. states instruction objected to (a)Damages. awas there evidence there was no because 14.2, Section included The court U.J.I. relationship. fiduciary As of a breach nature, duration of extent 14.3: “The stated, breached heretofore contends injury.” Defendant now he revised relationship fiduciary when applicable under 14.3 U.J.I. plain- the consent without disagree. this case. We circumstances *13 a full disclosure. to make and failed tiff in language plaintiff developed paraphrases Post-operatively The instruction 26, correctly November obstruction. supra, acute bowel On and Brumlop, v. Woods opera- 1967, the first days after fourteen law. stated the plain- partner tion, examined defendant’s x-rays acutely ill and tiff found him and Question Was Hypothetical (c)The Re- a small bowel obstruction. confirmed Erroneous. Not Exploratory sur- necessary. operation was the doc- question asked hypothetical lying to an abscess gery day disclosed that tor was: ileostomy. Swelling asso- the the side the off had closed the abscess ciated with il- patient you and the came Q. If the removed partner Defendant’s bowel. and eostomy protruded three inches ileostomy with the involved portion the pain, he had no you that advised brought again the and abscess functioning ileostomy was the placed in were Drains out at a new site. he did not desire properly, and cavity. abscess with surgical interference any hospi- from the discharged Plaintiff was you recommend ileostomy, would 8, 1967, changed doc- December - tal on surgery ? undergo such that he examination January tors. On be- question objected problem the abscess a medical disclosed undisputed fact it omitted cause peri- 30, 1968, signs of cavity. April On rela- plaintiff consulted surgery. This emergency tonitis caused hernia, a repair of the to hernia tive by abscess was set motion infection that the. question; fact omitted from exploratory surgery on during discovered nei- facts therefore, was based question, November 1967. evi- evidence, inbe can ever nor ther ileostomy, abscess Revision prejudicial because dence; it was and its concomitant results constituted impression jury with left the erroneous Cassetty, injury. Clark N.M. v. un- performed an defendant had that the nature, extent and P.2d 37 “The necessary on the question injury” duration answer- agree. I The doctor do not for the jury. fact surgi- third question performed the ed the He, operation. the trial court cal Relationship. (b)Fiduciary were,familiar in- the hernia with instructed the jury: hernia, Apart from the one of volvement. relationship important questions between a doctor in this case was right a fi- what known law as had the to revise whether defendant duciary relationship, that is relation- if the forbade it. «faith, ship reposing in hypothetical confidence The assumed facts by range trust placing and the of reliance “. . question one were . within already offered and advice of the evidence duty of other. .” It was then the “. . . jury, to determine from all of the evidence whether or not the facts BITSIE, La Verne her father and next friend, Bitsie,
assumed proved.” have Oscar Plaintiffs- 2.1, been U.J.I. Appellants, Hypothetical Question. State Klas See ner, 474, 479, 489, 145 P. WALSTON, James B. the United Cerebral Am.Ann.Cas.1917D, Palsy Association Journal Publish Furthermore, could not Company, Defendants-Appellees. leave an impression erroneous with the No. 1108. jury that performed defendant had an un- Appeals Court of of New Mexico. necessary operation because the question July 1973. referred to a medical “recommendation” Sept. 7, Certiorari Denied 1973. doctor, “unnecessary not an operation.” *14 approve the rule that the form and
content hypothetical of a question rests
the discretion of the trial if the trial
court believes the question answer will
aid jury. disputed Where there are issues,
factual plaintiff is entitled to select
the evidence on the facts favorable to his
case. The dispute resolution of the factual
is left to jury. Canney v. Travelers Co.,
Insurance
110 N.H.
(1970). hypothetical If the question is not evidence,
based on facts in but it is al- court,
lowed it would be a clear
abuse of Araujo discretion. Technical Co.,
Casting 100 R.I. A.2d
I know rule no which demands include all facts which
might be opinion requested. relevant plaintiff may opinion seek the witness’ any combination of facts within the
tendency of sufficiency evidence.
of the data as well the soundness
opinion can properly be tested on cross-ex- Marsigli
amination. City Estate v. Granite Sales,
Auto 124 Vt. A.2d 799 case, present
In the
not seek cross-examination of the doctor hypothetical question. answered the
The hypothetical proper, question was
and the trial court did not abuse discre-
tion.