Larry D. ROBINSON, Joan Robinson, Plaintiffs-Appellants, v. Dr. Joe E. PARRISH, et al., Defendants-Appellees.
No. 82-8580.
United States Court of Appeals, Eleventh Circuit.
Dec. 15, 1983.
AFFIRMED IN PART, REVERSED IN PART and REMANDED.
Jack F. Witcher, John W. Kilgo, Bremen, Ga., for plaintiffs-appellants.
David H. Tisinger, Thomas E. Greer, Carrollton, Ga., for defendants-appellees.
Before RONEY and HILL, Circuit Judges, and MORGAN, Senior Circuit Judge.
PER CURIAM:
Joan and Larry Robinson, the appellants, originally filed this diversity action in 1976 in the Northern District of Georgia. They claimed that the defendant-appellee, a medical doctor, negligently performed a laparoscopic tubal ligation on Mrs. Robinson in 1975. This surgical procedure is designed to permanently sterilize a woman and is relative risk free, but Mrs. Robinson‘s small intestine was punctured during the operation and she suffered serious pain and injury as a result. A jury subsequently found that the defendant did not negligently perform the operation. The Robinsons then moved for a new trial, claiming that the district court erred in failing to give jury instructions concerning “informed consent.” Informed consent is a descriptive term referring to a requirement in many jurisdictions that a doctor fully explain all possible risks associated with a particular operation. The defendant responded to the Robinson‘s motion by arguing that informed consent is not a requirement under Georgia law, and that Georgia law only requires a patient be informed of the intended result of the surgery before valid consent is obtained. The district court reviewed the arguments, noted the absence of Georgia cases addressing the issue, and granted the Robinson‘s motion for a new trial solely on the question of
Once again before the district court, but before a different judge, the parties stipulated two important facts for the first time. The parties agreed that Mr. and Mrs. Robinson were fully aware prior to surgery that the purpose of the operation was to permanently sterilize her. The parties also agreed that the defendant did not explain to the Robinsons any of the potential risks or complications associated with the procedure. The defendant then made a new motion for summary judgment on the issue of informed consent. The district judge found as a matter of law that Mrs. Robinson validly consented to the operation, and accordingly granted the motion. In other words, the district judge rejected the previous district judge‘s conclusion that the doctrine of informed consent was applicable under Georgia law.
The Robinsons now appeal raising three issues. First, they argue that the “law of the case” doctrine should have barred the second district judge from overturning a ruling made by the previous judge. Second, they claim that Georgia law requires a doctor to obtain informed consent prior to operating on a patient. And third, the Robinsons argue that there are still material facts in dispute even if informed consent is not applicable in Georgia, and thus summary judgment was improper. We affirm for the following reasons.
In regard to the first issue, the Robinsons are misguided in arguing that the “law of the case” doctrine should have barred the district judge below from ruling contrary to the previous district judge. The “law of the case” doctrine is “the rule under which the trial court and appellate
The Robinsons also argue that Georgia incorporates the doctrine of informed consent and requires a physician to fully explain all possible risks and complications associated with a sterilization operation before a patient can validly consent to the surgery. Georgia law provides: “It shall be lawful for any physician . . . to perform a sterilization procedure . . . provided . . . that prior to or at the time of such request a full and reasonable medical explanation is given by such physician to such person as to the meaning and consequence of such operation.”
Finally, the Robinsons claim that there are still material issues of fact in dispute concerning the validity of Mrs. Robinson‘s consent, and therefore summary judgment was improper. We find this claim to be entirely meritless. The Georgia Supreme Court‘s opinion in this case expressly states that the Georgia Code provision only requires a physician to explain “the intended result of sterilization, which is the permanent inability to have children.” Robinson v. Parrish, 251 Ga. at 496, 306 S.E.2d 922 [manuscript at 3]. Once the physician complies with this provision, Georgia law insulates the physician against all civil liability except a negligence action.
For the reasons stated above, the decision of the district court is AFFIRMED.
In the Supreme Court of Georgia
40055. ROBINSON et al v. PARRISH et al
WELTNER, Justice.
We have received from the United States Court of Appeals for the Eleventh Circuit the following certified questions:
“1. Whether the Georgia Voluntary Sterilization Act,
OCGA § 31-20-2 , requires a physician to disclose any possible risks and complications associated with a sterilization procedure before a patient can validly consent to that procedure.“2. If the answer to Question 1 is in the affirmative, are Appellants nonetheless conclusively bound by consents such as were executed in the circumstances of the present case where those documents were merely signed by Appellants without any accompanying explanation by the Appellee/doctor, or may they litigate the issue of valid consent?”
The parties have submitted the following joint statement of facts: On October 31, 1975, Dr. Joe E. Parrish performed a laparoscopic tubal ligation (sterilization procedure) on the appellant, Joan Robinson. During this operation, an intestinal wall was lacerated, requiring subsequent corrective surgery.
Prior to surgery, the doctor informed Mr. and Mrs. Robinson that the purpose of the operation was to prevent pregnancy; he also informed them that the sterilization would be permanent.
Also prior to surgery, the Robinsons signed two consent documents entitled “Request for Voluntary Sterilization Procedure” and “Consent to Operate or to Perform Special Diagnostic Procedures.” The parties stipulate that prior to surgery, the doctor did not explain to the Robinsons the potential risks or complications associated with the performance of a laparoscopic tubal ligation.
The Robinsons filed this suit in the United States District Court for the Northern District of Georgia alleging negligence by the doctor. In addition to the issue of informed consent, the Robinsons allege that Mrs. Robinson was under medication at the time she signed the consent, thus rendering it invalid. After a jury verdict in favor of the doctor and a grant of new trial, the district court granted the doctor‘s motion for summary judgment. On appeal, the United States Court of Appeals certified this matter to our court.
We need address only the first certified question.
The Voluntary Sterilization Act,
The Court of Appeals has addressed on numerous occasions the applicability of the doctrine of informed consent to the Georgia Medical Consent Law (
The Georgia Medical Consent Law, however, specifically excludes sterilization procedures, and thus must be governed by the “existing law independently of the terms and provisions of this chapter.”
The “existing law” is found in the language of the Voluntary Sterilization Act, which requires that the physician give “a full and reasonable medical explanation . . . as to the meaning and consequence of such operation.” We find these words to mean that the physician must fully inform the patient of the intended results of sterilization, which is the permanent inability to have children. Specifically, the statute does not require a physician to disclose the possible risks and complications of the sterilization procedure.
Certified question 1 answered in the negative.
All the Justices concur, except HILL, C.J., and SMITH, J., who dissent.
HILL, Chief Justice, dissenting.
Judge Cardozo began the doctrine of informed consent when he wrote:1 “Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient‘s consent commits an assault, for which he is liable in damages.” Judge Cardozo had before him a case of trespass, not mere negligence, namely unauthorized surgery. However, the doctrine has been expanded to cases in which the patient authorized the treatment but was not informed of the risks.2 Today, the doctrine appears to be applicable in negligence cases (i.e., a failure to warn constitutes negligence) as well as in cases in which battery is alleged.3
“Anglo-American law starts with the premise of thorough-going self determination. It follows that each man is considered to be master of his own body, and he may, if he be of sound mind, expressly prohibit the performance of lifesaving surgery, or other medical treatment. A doctor might well believe that an operation or form of treatment is desirable or necessary but the law does not permit him to substitute his own judgment for that of the patient by any form of artifice or deception.”4
It is true that the Georgia Court of Appeals has held that, by virtue of our Medical Consent Law,
Unlike medical treatment in general, which is more often than not, necessary, and therefore almost compulsory, sterilization is almost always elective surgery. In my view, where surgery is elective, the patient is entitled to be sufficiently informed so as to make an intelligent choice; i.e., the patient is entitled to be informed of possible risks and complications associated with the sterilization procedure.
I therefore would interpret our Voluntary Sterilization Act,
I am authorized to state that Justice SMITH joins in this dissent.