*1 HOSPITAL, INC. v. PALMYRA PARK 51954. PARR Webb, Judge. Dr. for a prostatectomy
John Parr was scheduled Albany Lane, a urologist, public Kevin a at private blood from and was told Dr. Lane to obtain probably sources and have it on as he would standby subsequently was surgery transfusion. require however, private performed, appellee hospital, at the facility where blood for transfusions is made available Dr. made no physicians. as a service for Lane blood be available determination as to whether would require Park Palmyra Hospital patients blood in advance of use. The supply prior administrator never to Parr blood spoke regarding specifically Dr. Lane could not remember surgery. Parr the risk of associated with telling hepatitis about surgery the risk of blood transfusions but he discussed extensively. quite blood the course of Parr two During surgery required unit the blood obtained from transfusions. One blood from a commercial voluntary donor and the other a three and filed hepatitis bank. Parr contracted acute that the the result complaint alleging hepatitis count "unwholesome, receiving impure adulterated” 2 and supplied by appellee hospital. Counts 105-1105, were stricken to Code Ann. pursuant defines transfusion of blood asa service rather than *2 liability sale and makes contingent upon proof of negligence. 1,
Count
in
was based
sounding
negligence,
upon
that a
premise
blood obtained from
utilizing
paid
a duty
donors has
to warn a
admitted
for elective
of
surgery
the increased risk of hepatitis he will encounter
as a consequence
expected
of the
transfusion.
The
hospital’s
motion for
judgment
granted
was
as a
result of the trial court’s
of
application
this court’s recent
Yarn,
decisions in
Young
Those cases held that "Until 1971 there was some question as to whether the 'Informed Consent Doctrine’ was applicable to our state. See Mull v. Emory University, (5) (150 276). Inc., 63, 65 Ga. year That General enacted Assembly Medical Georgia Consent (Ga. 441) Law L. 1971, 438, pp. adding Chapter 88-29 to the Code. In that statute the legislature declared in 88-2906 the 'A following: consent to medical and surgical treatment in which discloses general terms the treatment or course of treatment in connection with which it is given and which is evidenced in duly and writing signed by the patient or other person or persons authorized to consent pursuant to hereof, the terms shall be conclusively presumed to be a valid consent in the absence of fraudulent misrepresentations of material facts in (Ga. obtaining 1971, the same.’ L. pp. Yarn,
"In Young v. 136 Ga. App. we derived that statutory directive the following conclusion: 'The legislature has defined the physician’s duty of disclosure to patient; his must inform the of the general terms of treatment in order to effect a valid In consent. that we have decided that duty this include a treatment,” disclosure of appellant "risks of cannot sustain an action that defendant alleging his in duty breached failing warn the risks of treatment or that her consent was thereby rendered ” invalid.’ Kenney v. Piedmont Hospital, App. 660, 667, supra.
The statute refers surgical "medical and treatment” in nothing language which would restrict such treatment to that administered a "duly licensed physician,” hospital. rather than a Moreover, the evidence this case clearly shows hospital’s only contact the plaintiff-patient his through personal physician explained who himto risks incident to the proposed surgery. The had no with the dealings plaintiff, merely orders following the physician which normal procedure.
supplied hospital was supplied as a service to the surgeons there. operating
Young Kenney interpreted the statute to require that a physician need only disclose terms the treatment to be consent; rendered order to effect a valid duty this does not include a disclosure of "risks of *3 treatment”; that action alleging that the de- fendant duty breached in failing his to warn of the risks of treatment, or that the consent was rendered thereby invalid, Thus, cannot be sustained. the traditional doctrine of informed consent has rejected been specifically and whatever information must be disclosed as the general course of treatment under the Georgia statute include specified if legally Surely risks.1 the physician who is treating patient, who has responsibility for seeing that he properly is treated and that is available, and who the only is one who has personal contact with the required is to do no more than inform the patient of the general terms of treatment and is not required to disclose treatment, the risks of hospital, which only deals supplies the doctor and blood for his patient as a service for the is F2d 772 Canterbury Spence, see
1 But 560, 34 SC (D.C.C.A. den., 409 U.S. 1972), cert. disclose duty physician’s 518), holding LE2d medical customary not from legal obligation, arises from practice.
no greater obligation or higher standard of disclosure. To require a to contact to discuss the risks of a surgical procedure involving transfusion of blood would be a presumptuous invasion of the province of the physician, on whom rests responsibility patient’s welfare.
We further conclude that no written required. Young opinion clearly indicates that a properly drafted consent form obtained in conformity with the Medical Georgia Consent Law would bar a potential claim by making such consent "conclusively However, valid.” where the form is inadequate as in Young, or where there is no written consent shown as case, instant judgment could still be obtained by establishing the plaintiff-patient knew, from any source,2 the general course of treatment to be undertaken. See generally, Schroder, Tanner & Medical Malpractice, 12 Ga. SBJ (April, Therefore, under the evidence in case, this the trial court properly granted summary judgment as against the plaintiffs contention that the defendant hospital was informing plaintiff of the alleged greater risk incident to the use of commercial blood. Judgment Bell, J., Clark, Stolz, C. affirmed. JJ.,
Marshall and McMurray, Deen, J., concur. P. Quillian, J., Smith, J., dissent. not participating.
Argued April September 1976 Decided 1976. Percilla, Malone, Malone & ThomasWm. for ap- pellant.
Watson, Chambless, Spence, Lowe & Stuart G. Watson, for appellee.
2 Compare (Va. Bly Rhoads, 222 SE2d 783 requiring expert testimony to establish the existence and extent of the physician’s duty to make those disclosures which a reasonable medical practitioner would make under the same or similar circumstances.
461 Judge, dissenting. Quillian, case, the burden is While on the trial of a negligence on defendant’s negligence, on the to establish the plaintiff is the where the movant summary judgment, motion for proof producing has the burden of defendant, then he one essential element at least conclusively negates which fairly every theory entitling plaintiff recovery Saunders from the and the evidence. pleadings drawn 324). (2) (158 Vikers, Here, 733 SE2d App. 116 Ga. in which operation contracted after an hepatitis One pints. pint he was blood transfusion of two given blood, is, donor donated to the defendant voluntarily blood, hospital. pint The other was so-called commercial paid, which the donor was rather than donated. That pint was furnished a commercial source in Columbus.
An issue was raised as to whether the use of the commercial blood entailed risk than donor blood. greater that, The defendant proof introduced experience and doctors, that of its commercial blood was not a significant factor A doctor transmitting hepatitis. for the plaintiff, reputed authority, who was be affidavit, stated that blood paid obtained from donor sources carries it a significantly higher risk of contracting hepatitis transfusion-related than does blood obtained from volunteers. opinion
"While
adduced by
respondent
evidence
is sufficient
to preclude the
of a
grant
summary judgment
(see
(142
Henderson,
Word v.
244)),
Issues of negligence
ordinarily, not susceptible
of summary
but
adjudication,
must be resolved on trial.
(174
Co.,
v. A.R.
Winter
SE2d
Wakefield
178).
is the arbiter of the
jury
question
"[T]he
whether
defendant’s
.”
given
conduct on a
occasion is
.
negligent.
Co.,
Garrett v.
Bros.
Royal
Although the defendant tended it and did exercise to show that was not
care, it did conclusively plaintiff not establish that the could not recover.
Moreover, the case cited the majority, Young Yarn, which construed (Ga. 441) 438, § Code Ann. 88-2906 L. pp. not under the controlling present circumstances. (Ga.
Assuming arguendo that the statute in question L. p. 438 et to seq.) applies hospitals it although contains, its terms throughout expression "by the a duly licensed in physician,” the case sub there was no judice showing that the In requirements of the statute were met. Yarn, Young supra, a signed was written and was, however, form which in imperfect not the disclosing general terms of treatment. This consent was obtained by physician the who did disclose such general terms of Here, treatment. there is not an iota of evidence that the hospital the gave plaintiff any in- regard blood, formation with to the it nor that obtained his written consent.
Where a doctor instructs the hospital provide blood for the patient, and the hospital takes the blood sample patient, the provides the laboratory analysis, then selects the type blood, either from donor or commercial both, or patient, administers the blood to the and (not doctor) bills the patient the the disclaimer of the hospital that it was merely a service to the providing doctor will not suffice.
The testimony of the was that he the told (patient) that the plaintiff should obtain blood from the blood bank and that the plaintiff would need to replace Thus, it. construing evidence in favor of the party motion, opposing the blood was furnished to the and not Hence, to the doctor. any relation that existed with regard the blood was between hospital and patient, not doctor-patient.
Under the applicable statute, 88-2906, Code Ann. if the doctor is in required to "disclose terms the general treatment or course of treatment . . . duly evidenced and writing signed by the then patient” why should the hospital be entitled protection of this statute without meeting the minimal the statute? requirements contained §Ann. of Code protection asserts
When compliance must, necessity, 88-2906 it show medical any to show It have statute. would patient, furnished the service or medical procedure, duly evidenced . . . [and] "in terms disclosed A will . .” patient. writing signed on the negligence from its to insulate itself permitted be of the hospital patient grounds "doctor-patient” doctor, violating be they would medical or procedure the medical by explaining privilege *6 patient. provided by service its re- plain: The terms of the statute are where conclusively shall be are met then quirements Where, here, none of the essential presumed to be valid. as elements are shown then a should summary judgment public considerations merely impose be granted compliance cannot be policy separated the statute.
I would hold that it was error to defendant’s grant motion for summary judgment.
I am to state that Deen Presiding Judge authorized joins this dissent. BELL
52353. v. BREWTON. Judge.
Webb, Melvin filed suit Althea Bell against Brewton December, 1964, alleging operating she was his, thereby causing automobile which collided with damage person property, sought to his for which he recovery. operating Althea Bell denied that she was automobile, at the that she was a asserting passenger collision, injuries time of the and filed a cross action for alleged to have resulted from Brewton’s on Brewton’s driving. The trial was twice continued of the Soldiers and request stay provisions for Ann Act, June, 1975, Sailors Civil and in Frances Relief in her as capacity Catterton was substituted as Brewton, who had administratrix of the estate of Melvin died A year jury following earlier. trial was held