*1 KEEL, Appellant, Leslie
ST. ELIZABETH MEDICAL
CENTER, Appellee.
No. 90-SC-689-DG.
Supreme Kentucky.
June 1992. Rehearing, on Denial of
As Modified
Sept. Davidson, appel- Covington, E. for
David lant. Kramer, Benzinger, V. E. David
Gerald Lavelle, P.S.C., Deters, Benzinger Cov- & ington, appellee.
COMBS, Justice. malpractice The issue in this medical is neces- case whether support claim sary to procedure done without was consent, where procedure, given no information about allegedly complications and where medical testimo- resulted. the absence issue, granted court the trial ny on this medi- summary judgment to defendant affirmed, Appeals cal center. The Court discretionary review. granted and we considering summary judgment, When favor- light in a most the evidence we view judg- party opposing summary able to ment, plaintiff/appellant. in this case per- from his to a written order Pursuant presented appellant physician, sonal scan, which was CT for a at St. Elizabeth *2 patient re- dye physician had not informed the injection of a contrast include the test, complication given garding particular he the Prior to the was material. clear, concerning any risks attend- is not information eventuated in that case. It procedure. may provid- however, He have physician ant to the had men- whether ques- response or, hand, to routine ed information risks on the other tioned other illnesses, medi- concerning allergies, tions nothing. note that had said The court did cations, has ever “whether patient, based on his he had “advised his undergone any x-ray or CT scan or had an as a result of his exami- judgment, medical contrast materials were used tests where diagnostic procedures.” Id. at nation and any has had and if so whether affirming In a directed verdict for the materials, to contrast previous reactions expert physician, for want of defendant type con- type of reaction and the testimony, the court stated: Holton dye was in- previously trast used.” n [W]e that it is unneces- persuaded and the scan conducted. jected, expert evi- sary to determine whether Later, diag- developed a condition required in all instances dence should be thrombophlebitis at the site nosed of informed con- the claim is lack where ex- injection. prepared Keel was to offer treatment. It is our view sent to medical testimony thrombophlebitis pert considering the extent of that the cases secondary injection, to the intravenous was many have failed in required disclosure say was unable to whether but requirement to the instances to relate the injection negligently admin- or not the was If it is the policy overall consideration. prepared to of- plaintiff istered. The is, law, surely and it respect to fer no medical with ordinarily honest mis- is not liable an the issue of informed consent. judgment, he follows ac- take it, argument re- perceive As we Keel’s for examina- ceptable medical standards a) treatment, following lack of diagnosis duces to thesis: then tion and informed consent be differentiated extent of a disclosure relevant negligence, recovery may from medical consent must be securing the upon proof had of lack of informed of what the evaluated terms consent, causation; b) damages, have known at the time knew or should case, expert of this medical circumstances he recommended the treatment is not in order to patient. posi- of informed consent. The the absence argues that the Id. 789. St. hospital distinguishing tion of the is that implies that testi- Holton decision difference, and the issues makes no real con- necessary in most informed mony is consent, question of like that the informed actions, as in most medical sent deter- question negligence, must be actions. against practice mined the standard adopt appears to 304.40-320 KRS profession. among members of the approach: same consent, this the issue of informed On treating, ex- brought for action action, regard- “the has stated that claimant amining, operating on a form, negli- reality is in one for less of its consent the claimant’s informed wherein proper failing to conform to a gence element, the claimant’s an standard_” professional Holton have deemed to been consent shall be 786, 788 Pfingst, Ky., 534 S.W.2d given where: case, alleged In that pro- action of the failed to disclose a risk which physician had pa- obtaining the consent exist, vider in or had failed had known to person authorized or another tient her of the risks of a inform in accor- patient was give consent for the physicians of degree as dure to the same of med- accepted standard with the dance and skill would ordinary prudence among members ical or dental opinion that is clear from the done. It (subject proof) compli- whereas to further profession with similar experience; and cation did fact result. These inconsisten- apparent cies are to ex- individual, without recourse reasonable *3 pert testimony; we believe this evidence by the health care provided information satisfy to the standards of provider under the would was sufficient Holton, 304.40-320, understanding general pro- supra, a and of have KRS medically dentally accept- protect plaintiff cedure and and to adverse procedures or treatments summary able alternative judgment. risks and hazards inher- and substantial incidentally suggestion note We proce- treatment or ent issue) (not strictly an that St. Elizabeth recognized dures which Keel, might duty a to inform on not have perform providers who simi- responsibility lay with theory that this procedures_ treatments or lar KRS personal physician. Under 304.- agree with We must St. 40-320, upon duty pro “health care is cases, that, expert in most medical evidence viders”; expressly in and KRS 304.40-260 necessary likely be a element will hospitals cludes within the definition proof negating informed con plaintiff’s duty term. We no doubt that the that special In view of the circumstances sent. peril. is exists and breached case, however, that nei believe we reversed, judgment is and this mat- requires
ther Holton nor KRS 304.40-320 the Kenton Circuit ter is remanded to on to produce proceedings further consistent Holton, Court for respect to we answer issue. With there, opinion. with this open and hold that question left expert is not in all in evidence is lack of informed stances where claim WINTERSHEIMER, JJ„ LAMBERT and Here, significant find it consent. we concur. Keel no St. Elizabeth offered information LEIBSON, J., only, in result concurs concerning any possible haz
whatsoever
concurring
separate
opinion.
files a
particular procedure, while at
ards of this
it
hospital
admits that
the same time
SULLIVAN, Special
M.
RONALD
routinely questions every
about
Justice,
opinion
separate
dissents
injection
he/
undergo
dye
as to whether
a
SPAIN, J„
C.J.,
STEPHENS,
which
to con
any previous
had
reactions
she has
join.
analogize
If we are to
trast materials.
actions,
LEIBSON, Justice, concurring.
negligence
we
consent actions
acknowledge
failure
ade
must also
only.
respectfully
I
I
concur in results
need not be
quately to inform
reasoning in the
disagree with some of the
expert
where
established
therefore,
and,
sep-
Opinion,
write
Majority
apparent
laymen
failure is so
these mat-
arately
my
on
express
views
it from evidence
recognize or infer
easily
ters.
knowledge.
of common
within the realm
Ky.,
CONSENT
appeal
is concerned.
with which
bearing
KRS 304.40-320 should have no
CONSENT ACTIONS
B.
INFORMED
plainly
this case because it is a
whatever on
ARE BASED ON
NEGLIGENCE
li-
legislative
unconstitutional
intrusion into
THEORY
wrongs (negligence
ability for common law
brief,
attempts to
appellate
In his
battery) protected
and assault
battery
in
couch this cause of action
Kentucky
our
such intrusion
Constitu-
right
individuals to make decisions
“the
tion,
Constitutionally,
54 and 241.
Secs.
This contention
about their own bodies”.
duty.
cannot define the
the statute
holding
of Holton v.
disregards
not
aid and com-
Opinion
Our
should
(1975),
Ky.,
ment the OF CARE APPLIED IN C. STANDARD (emphasis added). This concen Id. at AN CASE INFORMED CONSENT health care tration on the conduct the stronger the grown since provider the has even The Holton court established stan- statute, informed consent enactment of the applied to the conduct dard which would be KRS 304.40-320 provider in informed of the health care consent cases: has this statute should Keel claimed that in the law to
Despite the current trend defense that considered an affirmative be liability manufacturers assertion impose strict on must raise. This the defendant protection contrary language the products sellers of for the is has, nevertheless, consumers, permit a the law The statute does not statute. into profes- plaintiff to come court with to afford continued proof priv- shift the burden of professions a sion and other learned produce ordinarily refused to the defendant to ilege which has an an defense to the strict as affirmative groups even before liabil- other trend, affir- is consent case. Statutes establish and that the freedom set ity See, expressly. e.g., of conduct. mative defenses do so legal own standards their (provocation a defense to 411.010 implicitly ad- KRS policy justification The (cham- battery), KRS 372.090 respect the courts assault and vanced individual, treating, examining, infor- brought A reasonable 1. In action provider operating provided a claimant wherein the claim- the health care or on mation element, the claim- gener- consent an ant's informed would under the to have consent shall deemed ant's informed procedure understanding and medi- al given where: been cally dentally acceptable or alternative provider action of the health care risks and treatments and substantial dures or obtaining or anoth- consent of the or treatment inherent hazards for the person consent er authorized among recognized procedures which are accepted with was in accordance perform providers similar who health care or dental standard medical (emphasis add- procedures; or ... treatments profession similar train- with members of ed). ing experience; and unlikely injury possession), adverse unforeseeable perty as a defense to (truth as a defense to defama- consented to the recom- 411.045 would not have KRS tion); shift the bur- as do statutes which mended health care. (shifts den, to an e.g., KRS 13A.140 burden sum, KRS 304.40-320 mandates that prove validity agency to administrative plaintiff satisfy requirements two in an challenged regulation), administrative of a First, case. informed consent (shifts burden to a defen- and KRS 207.135 prove made must disclosure disability-discrimination dant-employer in a satisfy the did not prove testing for HIV is a action to accepted standard of the of that members occupational qualification). fide KRS
bona experi- profession with similar in effect the two ele- 304.40-320 states Second, plaintiff ence. must prima ments for a facie informed consent not understand reasonable individual would case. alternatives, acceptable procedures, legislative supports intent also and the risks inherent in the substantial interpretation of KRS 304.40-320. proposed treatment from the health care Hospital Physicians Profes- Governor’s provider’s disclosures. Liability Advisory Insurance sional Com- mittee, 304.40-320, which drafted KRS RE- D. EXPERT TESTIMONY IS following concerning made the statement QUIRED A PRIMA TO ESTABLISH page Report in II at that statute 5 of its § INFORMED CONSENT FACIE to the Governor: CASE. legislatively require This section will require- The first of the two above stated proven by “informed consent” cases be *6 ments is concerned with the health care testimony expert relating accepted provider’s duty plaintiff A in to disclose. profession in practice standards of of the an informed consent action must that information, providing and further re- duty this has been breached. KRS 304.40- quire objective ap- that an standard be 320(1) clearly requires that such a breach plied determining in whether that infor- by establishing the only proven can be likely any mation in would have resulted provider did the not conform to by plaintiff. different decision the accepted standard of medical purpose The of this section is to elimi- among profession members of that with possibility jury’s spec- nate the experience. plaintiff and similar ulating after the fact that the health care satisfy requirement cannot this without should have told the producing expert from a medical evidence given though accepted pro- risk even defining accepted the medical standard. require fessional standards would not information, (2) plain- jurisdictions, Florida2 and North
such advance Two Carolina3, testifying similar tiff’s that had he known of an have statutes to KRS statute, 766.103(3), acceptable procedures alternative or treat- 2. Florida’s FSA reads: § ments, and the substantial risks and hazards recovery any No shall be allowed in court in proce- treatment or inherent dures, against any physician this state ... in an recognized phy- other which brought treating, examining, op- action or communi- sicians ... and the same or similar erating patient aon without his informed ty perform similar treatments or who consent when: dures; (a) or physician 1. The action of the ... in ob- (b) reasonably, patient would under all taining The the consent of the or another circumstances, surrounding have under- the person pa- authorized to consent for the gone procedure had he such treatment or accepted was in accordance with an tient by physician ... in accor- been advised practice among standard of medical members (a). paragraph provisions dance with the profession of the medical ing with similar train- experience in the same or similar statute, Carolina's informed consent 3. North community; 90-21.13, part: provides pertinent in § NCGS individual, 2. A reasonable from the infor- (a) against any recovery provided No shall be allowed mation ... under grounds general provider upon care the derstanding would have a un- health medically with- procedure, care treatment was rendered the health 866 is similar communities.” The expert testimony in or subsection
304.40-320 which
In in-
required in informed consent cases.
question
appears to answer the
left unre-
statute, the Florida
terpreting the Florida
Ellis,
in
solved McPherson
305 N.C.
[v.
Appeals
expert
determined
(1982)],supra,
892
and to
287 S.E.2d
required:
is
expert
require the use of
medical testi-
to inform and
mony by
party seeking to establish
which
of the information
extent
the standard.
depending
required varies in each case
Patrick,
N.C.App.
Nelson v.
58
293
Bly
upon
particular
circumstances.
(1982).
S.E.2d 829
Rhoads,
645,
ing and circumstances, general would have patient der the or the out the informed consent procedures understanding or treat- parent, patient’s spouse, guardian, rel- nearest frequent and most person give and of the usual con- ments or other authorized ative hazards inherent risks and where: sent for recog- are procedures treatments which (1) provider in or care The action the health pro- health care other patient or nized and followed obtaining other the consent practice in pa- engaged the same field of viders person consent for the authorized to communities; or or similar the standards the same in accordance with tient was (3)a person, all sur- under reasonable of the same health members rounding under- would have ex- profession with similar care procedure had he gone or such treatment perience munities; com- in the same or similar situated provider in care the health been advised provisions of subdivi- with the person, accordance from the informa- A reasonable (2) of subsection. provided by un- sions tion performed outweigh The test on Keel a com- advantages the benefits and scan, puted tomography known as a CT upon “modern trend” rule would bestow scan, “the recording which is of internal effect, patient-plaintiffs. the relaxed body images predetermined plane by at a permits lay “modern trend” rule witness- tomograph”. means of a Dorland’s Illus- done, express, es to when all is said and (26th Dictionary, page trated Medical opinion. to medical what amounts Un- Ed.1985). average layperson does not doubtedly, such a rule would cause fur- possess knowledge experience extensive ther proliferation malpractice of medical some, enough to if know whether or not already approach- actions a situation any, substantial risks are involved ing a national crisis. This is a result procedure. An given initial interview was which, possible if at all consonant with by Keel in which St. Elizabeth obtained judicial policy, sound should be avoided. certain information from Keel. The infor- rule, We believe the better which we now mation obtained from Keel in that inter- adopt, require patient-plaintiff is to may enough view satisfy have been by qualified experts show medical wheth- Elizabeth that there was no need to dis- er and to what extent information should anything layperson close to Keel. No pa- be disclosed to his you could tell whether or not the informa- tient ... tion obtained from Keel was sufficient to abrogate duty warn, laypersons 650-651, 222 Bly major- S.E.2d 783. The given should not power to do so ity country view the courts of this fol- without the introduction of reasoning lows the in Bly requires evidence. a deviation from The Opinion of the Court relies on the accepted standard of disclosure. See fact that St. Elizabeth made no disclosure Annot., 1084, “Necessity 52 A.L.R.3d to Keel as to the risks involved in a CT Sufficiency Expert Evidence to Establish knows, For all the scan. court there Physician’s Duty Existence of to Inform any be no to disclose risks to the Proposed Patient of Risks of Treatment”. because risks exist or because Inherent an informed consent cause of those risks that do exist are so inconse- pro- action is the fact that the health care quential as to be immaterial. I do not vider, doctor, nurse, whether he or she is a single think there is a member of this court type specialist, or some who knows what the chances that one making must exercise discretion when dis- thrombophlebitis will contract inject- patients. closures to If that health care ed during with contrast material a CT scan. provider determines that a risk is not mate- they Nor do know of the risks involved *8 rial or that it is best inter- Yet, they a CT scan. hold as a matter of disclosed, est that the risk not be he or she law that a failure to disclose risks to a patient choose inform the of not to undergo about to a CT scan enables province layper- that risk. It is not the of a claim lack go of of informed consent to to sons to decide if that choice constitutes jury. contrary, expert On the testimo- negligence. Expert testimony ny necessary supply to the court procedure and the evaluate undis-
jury Rhoads, Bly with this information. v. procedure closed risks in that 645, (1976), involved empha- 216 Va. S.E.2d 783 determine if the to inform the necessity sizes the reason behind this for Holton, supra, 534 was breached. See evidence an informed consent position Opinion of the case: S.W.2d 788. is un- The matters involved in the disclosure necessary plaintiff alleges if a no risks not, syndrome, more often than are com- were disclosed assumes that there are sub- plicated highly technical. To leave every ease. stantial risks to be disclosed lay the establishment of such matters to witnesses, support for opinion, legal There is no or medical pose in our would dangers disadvantages argument. which far such an influence of intoxicants. driving under the opinion of the Court affirm the
I would posses- of his arrest he was in At the time Appeals. of quantity a of cocaine and was sub- sion of possession of a J., sequently indicted for C.J., SPAIN, join in STEPHENS, narcotic, felony. D Re- II a Class Schedule this dissent. charge spondent guilty to the D.U.I. plead pay fines and service and was ordered amounting plus court costs. to $350.00 fees possession, charge As of cocaine charge pos- guilty to an amended plead non-narcotic, a II of a schedule session He A conditional- Class misdemeanor. was ASSOCIATION, BAR KENTUCKY years, a of two ly discharged period for Movant, day jail sentence thirty served Fayette County center and satis- detention PATRICK, Respondent. L. William factorily hours performed two-hundred community service. No. 92-SC-476-KB. 1991, Inquiry Tribu- On October Kentucky.
Supreme Court issued Kentucky Bar Association nal of the Dec. respondent al- charge against a two count conduct, as set leging criminal that his above, professional misconduct forth 3.130-8.3(b). type prohibited SCR rec- The Board of reviewed Governors By a vote of argument. heard oral ord and respondent’s the Board found adversely reflect on did not DUI conviction lawyer and dismissed his fitness as a agreed, unanimously The Board charge. however, respondent’s controlled sub- adversely reflect on did stance conviction to a lawyer, as and amounted his fitness 3.130-8.3(b). majority violation of SCR one-year sus- Board recommended pension. 3.370(9), this Court to SCR Pursuant Ass’n, Rea, Kentucky Bar S. Barbara the decision and recommendation adopts
Frankfort, for movant. to all matters the Board of Governors Rather, respondent. Lexington, Julius L. respondent William pertaining to the Patrick. ORDER ORDERED: IT IS THEREFORE Kentucky The Board of Governors *9 Patrick, William L. respondent, That the re- determined that Bar Association be, hereby, from the suspended and he Patrick, engaged spondent, William L. period of Kentucky for a practice of law by committing misconduct professional suspension period year. one adversely on reflected criminal act which February commence on shall in violation of SCR lawyer fitness as a as he is reinstated time continue until such 3.130-8.3(b). recommended The Board law order this Court practice of suspension from the one-year pursuant 3.510. SCR law. pay the respondent is directed Fayette arrested respondent of this action. 1991 for cost County, Kentucky April on