GARY L. TRUMAN, JR., a Minor, etc., et al., Plaintiffs and Appellants, v. CLAUDE R. THOMAS, Defendant and Respondent.
S.F. No. 24054
Supreme Court of California
June 9, 1980
27 Cal. 3d 285
Werchick & Werchick and Arne Werchick for Plaintiffs and Appellants.
Leonard & Lyde and Gary L. Gregerson, Gerald Hermansen and Charles Bond for Defendant and Respondent.
Claude H. Smart, Jr., Lowell T. Carruth, Peter W. Davis, Judith R. Epstein, Crosby, Heafey, Roach & May, Hassard, Bonnington, Rogers & Huber, Howard Hassard, David E. Willett and Nancy E. Hudgins as Amici Curiae on behalf of Defendant and Respondent.
OPINION
BIRD, C. J.—This court must decide whether a physician‘s failure to inform a patient of the material risks of not consenting to a recommended pap smear, so that the patient might make an informed choice, may have breached the physician‘s duty of due care to his patient, who died from cancer of the cervix.
I
Respondent, Dr. Claude R. Thomas, is a family physician engaged in a general medical practice. He was first contacted in April 1963 by appellants’ mother, Rena Truman, in connection with her second pregnancy. He continued to act as the primary physician for Mrs. Truman and her two children until March 1969. During this six-year period, Mrs. Truman not only sought his medical advice, but often discussed personal matters with him.
In April 1969, Mrs. Truman consulted Dr. Casey, a urologist, about a urinary tract infection which had been treated previously by Dr. Thomas. While examining Mrs. Truman, Dr. Casey discovered that she was experiencing heavy vaginal discharges and that her cervix was extremely rough. Mrs. Truman was given a prescription for the infection and advised to see a gynecologist as soon as possible. When Mrs. Truman did not make an appointment with a gynecologist, Dr. Casey made an appointment for her with a Dr. Ritter.
Appellants are Rena Truman‘s two children. They brought this wrongful death action against Dr. Thomas for his failure to perform a pap smear test on their mother. At the trial, expert testimony was presented which indicated that if Mrs. Truman had undergone a pap smear at any time between 1964 and 1969, the cervical tumor probably would have been discovered in time to save her life. There was disputed expert testimony that the standard of medical practice required a physician to explain to women patients that it is important to have a pap smear each year to “pick up early lesions that are treatable rather than having to deal with [more developed] tumor[s] that very often aren‘t treatable....”1
Although Dr. Thomas saw Mrs. Truman frequently between 1964 and 1969, he never performed a pap smear test on her. Dr. Thomas testified that he did not “specifically” inform Mrs. Truman of the risk involved in any failure to undergo the pap smear test. Rather, “I said, ‘You should have a pap smear.’ We don‘t say by now it can be Stage Two [in the development of cervical cancer] or go through all of the different lectures about cancer. I think it is a widely known and generally accepted manner of treatment and I think the patient has a high degree of responsibility. We are not enforcers, we are advisors.” However, Dr. Thomas’ medical records contain no reference to any discussion or recommendation that Mrs. Truman undergo a pap smear test.
For the most part, Dr. Thomas was unable to describe specific conversations with Mrs. Truman. For example, he testified that during certain periods he “saw Rena very frequently, approximately once a week or so, and I am sure my opening remark was, ‘Rena, you need a pap smear,‘... I am sure we discussed it with her so often that she couldn‘t [have] fail[ed] to realize that we wanted her to have a complete examination, breast examination, ovaries and pap smear.” Dr. Thomas also testified that on at least two occasions when he performed
Appellants argue that the failure to give a pap smear test to Mrs. Truman proximately caused her death. Two instructions requested by appellants described alternative theories under which Dr. Thomas could be held liable for this failure. First, they asked that the jury be instructed that it “is the duty of a physician to disclose to his patient all relevant information to enable the patient to make an informed decision regarding the submission to or refusal to take a diagnostic test. [¶] Failure of the physician to disclose to his patient all relevant information including the risks to the patient if the test is refused renders the physician liable for any injury legally resulting from the patient‘s refusal to take the test if a reasonably prudent person in the patient‘s position would not have refused the test if she had been adequately informed of all the significant perils.”2 Second, they requested that the jury be informed that “as a matter of law...a physician who fails to perform a Pap smear test on a female patient over the age of 23 and to whom the patient has entrusted her general physical care is liable for injury or death proximately caused by the failure to perform the test.” Both instructions were refused.
The jury rendered a special verdict, finding Dr. Thomas free of any negligence that proximately caused Mrs. Truman‘s death. This appeal followed.
II
The central issue for this court is whether Dr. Thomas breached his duty of care to Mrs. Truman when he failed to inform her of the potentially fatal consequences of allowing cervical cancer to develop undetected by a pap smear.
In light of these factors, the court held that “as an integral part of the physician‘s overall obligation to the patient there is a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each.” (Id., at p. 243.) The scope of a physician‘s duty to disclose is measured by the amount of knowledge a patient needs in order to make an informed choice. All information material to the patient‘s decision should be given. (Id., at p. 245.)
Material information is that which the physician knows or should know would be regarded as significant by a reasonable person in the patient‘s position when deciding to accept or reject the recommended medical procedure. (Sard v. Hardy (1977) 281 Md. 432, 444 [379 A.2d 1014]; Wilkinson v. Vesey (1972) 110 R.I. 606, 627 [295 A.2d 676, 69 A.L.R.3d 1202].) To be material, a fact must also be one which is not commonly appreciated. (See Canterbury v. Spence (D.C. Cir. 1972) 464 F.2d 772, 788.) If the physician knows or should know of a patient‘s unique concerns or lack of familiarity with medical procedures, this may expand the scope of required disclosure. (Waltz & Scheuneman, Informed Consent to Therapy (1970) 64 Nw. U.L.Rev. 628, 639-640.)3
Nevertheless, Dr. Thomas contends that Cobbs does not apply to him because the duty to disclose applies only where the patient consents to the recommended procedure. He argues that since a physician‘s advice may be presumed to be founded on an expert appraisal of the patient‘s medical needs, no reasonable patient would fail to undertake further inquiry before rejecting such advice. Therefore, patients who reject their physician‘s advice should shoulder the burden of inquiry as to the possible consequences of their decision.
This argument is inconsistent with Cobbs. The duty to disclose was imposed in Cobbs so that patients might meaningfully exercise their right to make decisions about their own bodies. (Cobbs, supra, 8 Cal.3d at pp. 240-241, 243.) The importance of this right should not be diminished by the manner in which it is exercised. Further, the need for disclosure is not lessened because patients reject a recommended procedure. Such a decision does not alter “what has been termed the ‘fiducial qualities’ of the physician-patient relationship,” since patients who reject a procedure are as unskilled in the medical sciences as those who consent. (Id., at p. 246.) To now hold that patients who reject their
Dr. Thomas next contends that, as a matter of law, he had no duty to disclose to Mrs. Truman the risk of failing to undergo a pap smear test because “the danger [is] remote and commonly appreciated to be remote.” (Cobbs, supra, 8 Cal.3d at p. 245.) The merit of this contention depends on whether a jury could reasonably find that knowledge of this risk was material to Mrs. Truman‘s decision.
The record indicates that the pap smear test is an accurate detector of cervical cancer. Although the probability that Mrs. Truman had cervical cancer was low, Dr. Thomas knew that the potential harm of failing to detect the disease at an early stage was death.4 This situation is not analogous to one which involves, for example, “relatively minor risks inherent in [such] common procedures” as the taking of blood samples. (Cobbs, supra, 8 Cal.3d at p. 244 Little evidence was introduced on whether this risk was commonly known. Dr. Thomas testified that the risk would be known to a reasonable person. Whether such evidence is sufficient to establish that there was no general duty to disclose this risk to patients is a question of fact for the jury. Moreover, even assuming such disclosure was not generally required, the circumstances in this case may establish that Dr. Thomas did have a duty to inform Mrs. Truman of the risks she was running by not undergoing a pap smear. Dr. Thomas testified he never specifically informed her of the purpose of a pap smear test. There was no evidence introduced that Mrs. Truman was aware of the serious danger entailed in not undergoing the test. However, there was testimony that Mrs. Truman said she would not undergo the test on certain occasions because of its cost or because “she just didn‘t feel like it.” Under these circumstances, a jury could reasonably conclude that Dr. Thomas had a duty to inform Mrs. Truman of the danger of refusing the test because it was not reasonable for Dr. Thomas to assume that Mrs. Truman appreciated the potentially fatal consequences of her conduct. Accordingly, this court cannot decide as a matter of law that Dr. Thomas owed absolutely no duty to Mrs. Truman to make this important disclosure that affected her life. The instruction proposed by appellants was a modification of BAJI No. 6.11 (1975 rev.), which was adopted to describe a physician‘s duty of reasonable disclosure as established by this court in Cobbs. Appellants’ instruction correctly indicated that a physician has a duty to disclose all material information to a patient. The instruction also stated that breach of this duty renders the physician liable for any “legally resulting [injury]... if a reasonably prudent person in the patient‘s position would not have refused the test if she had been adequately informed of all the significant perils.” The term “legally resulting” was defined for the jury in accordance with BAJI No. 3.75. The jury was instructed that a “proximate cause of an injury is a cause which, in natural and continuous sequence, produces the injury, and without which the injury would not have occurred.” Obviously, this test could not be satisfied if the jury were to conclude that even given adequate disclosure Mrs. Truman would have refused to take the recommended test in time to save her life. Thus, the rejected instruction would have correctly indicated that satisfaction of the prudent person test for causation established in Cobbs was necessary but not sufficient for plaintiffs to recover. If the jury were to reasonably conclude that Mrs. Truman would have unreasonably refused a pap smear in the face of adequate disclosure, there could be no finding of proximate cause. Though awkwardly phrased, the rejected instruction accurately reflected the law and a theory of liability applicable to the facts of this case.5 Refusal to give the requested instruction meant that the jury was unable to consider whether Dr. Thomas breached a duty by not disclosing the danger of failing to undergo a pap smear. Since this theory finds support in the record, it was error for the court to refuse to give the requested instruction. (Hasson v. Ford Motor Co. (1977) 19 Cal.3d 530, 543 [138 Cal.Rptr. 705, 564 P.2d 857]; Phillips v. G. L. Truman Excavation Co. (1961) 55 Cal.2d 801, 806 [13 Cal.Rptr. 401, 362 P.2d 33].) If the jury had been given this instruction and had found in favor of the appellants, such a finding would have had support in the record before us. Reversal is therefore required. (Cal. Const., art. VI, § 13; see also Phillips v. G. L. Truman Excavation Co., supra, 55 Cal.2d at p. 808.)* III The other contentions of instructional and evidentiary error urged by appellants are considered because these matters probably will arise at any retrial of the case. First, the trial court refused to instruct the jury that “as a matter of law...a physician who fails to perform a Pap smear test on a female patient over the age of 23 and to whom the patient has entrusted her general physical care is liable for injury or death proximately caused by the failure to perform the test.” In support of this instruction plaintiffs relied on the decision of the Supreme Court of Washington in Helling v. Carey (1974) 83 Wn.2d 514 [519 P.2d 981, 67 A.L.R.3d 175]. That decision involved a suit against two physicians specializing in ophthalmology who failed to recommend a test for glaucoma. The court held as a matter of law that the exercise of due care required the administration of that test. That holding has no application to this case since the evidence presented showed that the physician recommended the appropriate test but failed to inform the patient of the risks entailed in refusing to follow his advice. The suggestion that a physician must perform a test on a patient, who is capable of deciding whether to un-dergo the proposed procedure, is directly contrary to the principle that it is the patient who must ultimately decide which medical procedures to undergo. Accordingly, the trial court did not err in refusing this instruction. Second, the court refused to admit evidence that Dr. Thomas was convicted in Utah in June 1976 of intentionally falsifying a medical prescription in order to obtain a controlled drug for his own use. (Utah Ann. Code, § 58-37-8, subd. (4)(a)(ii).) A foreign conviction may not be admitted for impeachment purposes unless it is shown to be a felony under the law of the jurisdiction in which it was sustained. (People v. Moore (1970) 13 Cal.App.3d 424, 437 [91 Cal.Rptr. 538]; People v. Washington (1967) 248 Cal.App.2d 470, 477 [57 Cal.Rptr. 487]; People v. Miller (1961) 188 Cal.App.2d 156, 170 [10 Cal.Rptr. 326]. See Evid. Code, §§ 787, 788.) Utah law classifies the offense for which Dr. Thomas was convicted a felony. (Rammell v. Smith (Utah 1977) 560 P.2d 1108.) However, section 76-3-402 of the Utah Criminal Code provides that “[w]henever a conviction is for a felony, the conviction shall be deemed to be a misdemeanor if... [t]he imposition of the sentence is stayed and the defendant is placed on probation...and he is thereafter discharged without violating his probation.” After Dr. Thomas’ conviction, the Utah court placed him on probation for two years and continued pronouncement of judgment for an identical period. Prior to the trial in this case, the court granted Dr. Thomas’ request that his probation be terminated. The conviction was thus rendered a misdemeanor. Since the conviction was not a felony, it is not admissible for purposes of impeachment. (Evid. Code, §§ 787, 788.)6 The judgment is reversed. Tobriner, J., Mosk, J., and Newman, J., concurred. CLARK, J.—I dissent. The consent instruction demanded by plaintiffs will impose upon doctors the intolerable burden of having to explain diagnostic tests to healthy patients. To meet their new burden doctors will have to spend the greater part of their day not examining or treating patients, but explaining to them all information relevant to the purposes of diagnostic examinations and tests. Such burden is unreasonable, and the trial court properly refused the instruction. Further, the proposed instruction is erroneous because it is confusing. Counsel‘s failure to clarify the instruction at the trial court‘s request should preclude any claim of error. After the birth of her child, Mrs. Truman underwent a routine six-week checkup on 7 January 1964. Defendant had not suggested a pap smear prior to that time because Mrs. Truman stated she had had a pap smear within one year. When defendant suggested she have another, she “put it off.” In February 1964 she consulted defendant for a cyst on her cheek and requested a prescription for birth control pills. In July 1966, defendant treated her for an upper respiratory infection and again for flu a few months later. In March 1968, she received treatment for asthma, and in January and March 1969 for a urinary tract infection. In addition, Mrs. Truman visited defendant several times when her children needed treatment and to discuss family problems. During her visits, defendant and his staff repeatedly advised Mrs. Truman to have a complete physical examination, particularly a pap smear. On those occasions she either declined or put off their suggestions, limiting her requests to her most immediate health problems. Defendant never explained the purpose of a pap smear to Mrs. Truman believing that any intelligent woman of child bearing age was aware of its purpose. Mrs. Truman died of cervical cancer in July 1970. At trial expert witnesses testified the disease is often curable if detected in its early stages. Plaintiffs requested the jury be instructed that it “is the duty of a physician to disclose to his patient all relevant information to enable the patient to make an informed decision regarding the submission to or refusal to take a diagnostic test. [¶] Failure of the physician to disclose to his patient all relevant information including the risks to the patient if the test is refused renders the physician liable for any injury legally re-sulting from the patient‘s refusal to take the test if a reasonably prudent person in the patient‘s position would not have refused the test if she had been adequately informed of all the significant perils.” I. DUTY A primary consideration in determining whether a new duty should be imposed upon a defendant is the “extent of the burden to the defendant and consequences to the community” in imposing the duty. (Rowland v. Christian (1968) 69 Cal.2d 108, 113 [70 Cal.Rptr. 97, 443 P.2d 561, 32 A.L.R.3d 496]; Coulter v. Superior Court (1978) 21 Cal.3d 144, 153 [145 Cal.Rptr. 534, 577 P.2d 669]; Lipman v. Brisbane Elementary Sch. Dist. (1961) 55 Cal.2d 224, 229-230 [11 Cal.Rptr. 97, 359 P.2d 465].) The burden of explaining the purposes of a pap smear and the potential risks in failing to submit to one may not appear to be great, but the newly imposed duty upon physicians created by today‘s majority opinion goes far beyond. The instruction requires disclosure of all “relevant information to enable the patient to make an informed decision regarding the submission to or refusal to take a diagnostic test.” In short, it applies not only to pap smears, but to all diagnostic procedures allegedly designed to detect illness which could lead to death or serious complication if not timely treated. Carried to its logical end, the majority decision requires physicians to explain to patients who have not had a recent general examination the intricacies of chest examinations, blood analyses, X-ray examinations, electrocardiograms, urine analyses and innumerable other procedures. In short, today‘s ruling mandates doctors to provide each such patient with a summary course covering most of his or her medical education. Most medical tests—like pap smears—are designed to detect illness which might prove fatal absent timely treatment. Explaining the purposes of each procedure to each such patient will obviously take hours if not days. Few, if any, people in our society are unaware that a general examination is designed to discover serious illness for timely treatment. While a lengthy explanation may result in general examinations for some patients who would otherwise decline or defer them, the onerous duty placed upon doctors by today‘s decision will result in reduced care for others. Requiring physicians to spend a large portion of their time teaching medical science before practicing it will greatly increase the cost of medical diagnosis—a cost ultimately paid by an unwanting public. Persons desiring treatment for specific complaints will be deterred from seeking medical advice once they realize they will be charged not only for treatment but also for lengthy lectures on the merits of their examination. The great educational program the majority embark upon, even if justifiable, is a question of public policy for the Legislature to determine: whether the cost warrants the burden, and whether the duty to educate rests with doctors, schools or health departments. Requiring individual doctors to enlighten the public may be found through legislative hearings to be inefficient, not reaching those who need it most—the ones hesitant to consult doctors. When a patient chooses a physician, he or she obviously has confidence in the doctor and intends to accept proffered medical advice. When the doctor prescribes diagnostic tests, the patient is aware the tests are intended to discover illness. It is therefore reasonable to assume that a patient who refuses advice is aware of potential risk. Moreover, the physician-patient relationship is based on trust, and forcing the doctor into a hard sell approach to his services can only jeopardize that relationship. The new duty to explain, imposed by the majority as a matter of law, creates an undue burden on both the doctor and society and should be rejected. Strict tort liability does not extend to professional services. The ordinary duty in medical practice cases calls for determining the community standard of care, the appropriate duty in the instant case. (Barton v. Owen (1977) 71 Cal.App.3d 484, 494-499 [139 Cal.Rptr. 494].) Doctors—or at least the Legislature—rather than judges are in the best position to balance the professional relationship between doctors and patients, to determine how far a doctor should go in selling his services without alienating the patient from all medical care, and to promote the highest level of diagnostic care for the community. In the instant case, evidence as to community medical standard was appropriately received, the case was tried on this basis, and we should not reverse the judgment. Nothing in Cobbs v. Grant (1972) 8 Cal.3d 229 [104 Cal.Rptr. 505, 502 P.2d 1] warrants imposition of such an onerous duty—to the con-trary, that case expressly rejected any such duty. In Cobbs, a doctor performed risky ulcer surgery on a patient which resulted in severe complications. While the surgeon explained the nature of the operation to the patient, he did not discuss the inherent risks. We pointed out that bodily intrusion is actionable either on the basis of battery or negligence unless the patient consents. (Id., at pp. 239-241.) The court reasoned that because patients ordinarily are unlearned in medical science, an adult of sound mind “in the exercise of control over his own body” has a right to determine for himself whether to submit to proposed medical treatment, and that consent to intrusion must be informed to be effective. (Id., at p. 242.) We held that the physician who ordinarily has superior knowledge had a “duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each.” (Id., at pp. 242-243.) In Cobbs, we expressly circumscribed the duty of the doctor, holding that a “mini-course in medical science is not required,” that “there is no physician‘s duty to discuss the relatively minor risks inherent in common procedures, when it is common knowledge that such risks inherent in the procedure are of very low incidence,” that as to common procedures “no warning” is “required as to the remote possibility of death or serious bodily harm,” and that recovery would be permitted only if a “prudent person in the patient‘s position” adequately informed of the perils would have declined treatment. (Id., at pp. 244-245.) Thus, Cobbs is not helpful to the majority because the duty of disclosure in that case was imposed to assure consent to the intrusion would be effective. When no intrusion takes place, no need for consent—effective or otherwise—arises.1 Furthermore, contrary to the express limitations in Cobbs, today‘s decision requires not only an explanation of the risks of a single procedure but also a “mini-course in medical science,” if not a maxi-course. Simi-larly, because discovery of serious illness in a general examination of an apparently healthy person is remote, the doctor, contrary to Cobbs, is now required to disclose remote possibilities of illness. Moreover, the Cobbs duty to warn in cases where an adequately informed prudent person would have declined treatment shows a concern for preventing over-selling of services by physicians. By contrast, today‘s duty appears designed to increase selling of medical services. II. THE INSTRUCTION A trial court has no duty to modify or edit an instruction offered by either side in a civil case. If the instruction is incomplete or erroneous the trial judge may, as he did here, properly refuse it. (Shaw v. Pacific Greyhound Lines (1958) 50 Cal.2d 153, 158 [323 P.2d 391]; Tossman v. Newman (1951) 37 Cal.2d 522, 525 [233 P.2d 1]; Estate of Dopkins (1949) 34 Cal.2d 568, 575 [212 P.2d 886]; Nelson v. Southern Pacific Co. (1937) 8 Cal.2d 648, 653 [67 P.2d 682]; Ernest W. Hahn, Inc. v. Sunshield Insulation Co. (1977) 68 Cal.App.3d 1018, 1024 [137 Cal.Rptr. 732]; Anaheim Bldrs. Supply, Inc. v. Lincoln Nat. Life Ins. Co. (1965) 233 Cal.App.2d 400, 413 [43 Cal.Rptr. 494].) The majority opinion and the record reveal factual issues remain to be resolved even if the new duty is imposed. The offered instruction made no mention of those issues. Thus the instruction was deficient and erroneous. Moreover, as the trial court appropriately pointed out the instruction is confusing. The majority recognize there exists “a question of fact for the jury” whether the risks resulting from refusal to have a pap smear would be known to a reasonable person. (Ante, p. 293.) But nothing in the proposed instruction would advise the jury that the duty to disclose was inapplicable and that liability should not be imposed if the jury found the risks were known to a reasonable person. The majority also recognize there exists a question of fact whether Mrs. Truman would have taken the test had she been fully informed. (Ante, p. 294.) However, the jury was not advised of this question of fact. Rather, it was told that failure to disclose made the physician “liable for any injury legally resulting from the patient‘s refusal to take the test.” The term “legally resulting” was not defined in the instruction or in any other instruction. While “proximate cause” was generally defined by another instruction and some lawyers might equate “legally result-ing” with “proximate cause,” there is little reason to believe that laymen would equate the two terms. Rather, laymen would anticipate that “any injury legally resulting” would refer to some technical rule of damages, allowing recovery for all injuries excepting certain ones. Therefore, because the trial court is not required to correct instructions, refusal of the instruction furnishes no basis for reversal. Before refusing the instruction, the trial judge indicated he was sympathetic to its theory but felt it confusing. He pointed out that a duty to disclose “all relevant” information was too broad, substituted “proximate cause” for “legally resulting,” and made an effort to rewrite the last portion of the instruction to avoid confusing the jury. When his attempts at simplification failed, he advised counsel he would consider a revised version of the instruction. However, counsel presented no revision. The trial judge also pointed out that the jury would be instructed on general negligence and proximate cause principles, including the community standard of medical care. The trial judge‘s observations were correct. The majority state that the burden is “significant” risks rather than “all relevant” information. (Ante, p. 293.) As demonstrated, “legally resulting” is confusing. A mere reading of the instruction shows how confusing the last portion is, and it would be more confusing to jurors who, unlike us, listen to but are not permitted to ponder a written draft. Finally, conflicting evidence exists as to whether community medical standards required explanation of the risks inherent in refusing a pap smear. As noted above, the majority recognize that whether such explanation is required depends upon factual circumstances. Clearly, the issue was properly before the jury under standard negligence instructions, including instructions on community medical standards. Refusal to give the requested instruction does not warrant reversal. I would affirm the judgment. Richardson, J., and Manuel, J., concurred. Respondent‘s petition for a rehearing was denied July 17, 1980. Clark J., Richardson, J., and Manuel, J., were of the opinion that the petition should be granted.