(g) Res Ipsa Loquitur

Generally, the complaining party in a malpractice case has the burden of proving that the physician was negligent, but certain conditions may give rise to a shifting of that burden. The doctrine of res ipsa loquitur 89 comes into play when an injury occurs which is of a type that ordinarily does not occur except for someone's negligence, and the conduct or mechanism which caused the injury was within the exclusive control of the person against whom damages are sought. Given these circumstances, the law permits an inference of negligence on the part of the physician and liability will accrue unless the physician (to whom the burden is shifted) proves he was not negligent.

90

91

The doctrine of res ipsa loquitur is of only limited application, however, and while it appears to be gaining in importance in malpractice litigation, it is not ordinarily allowed as a substitute for proof where specific acts of negligence are alleged.92 Some types of cases in which the doctrine has been applied are mentioned here: Leaving of foreign objects in the patient's body after surgery; Burns or other injuries suffered while the patient was under anesthesia; Injuries from defective or unsterile instruments, or from defective hospital or medical equipment.

(h) The Requirement of an Informed Consent

An area of professional conduct which has become increasingly troublesome for many physicians is that which stems from the legal requirement that a physician obtain his patient's consent to medical treatment. It is a basic principle in our society that every man has the fundamental right to the physical security and integrity of his

89

See generally Morris, R. C.: "Res ipsa loquitur-Liability Without Fault," J.A.M.A. 163: 1055 (Mar. 23, 1957); Louisell and Williams, Trial of Medical Malpractice Cases, ch. XIV (1965); Annotation 82 A.L.R. 2d 1262 (1959).

90

Mayor v. Dowsett, 400 P. 2d 234 (Oreg., 1965); Walker v. Distles, 296 P. 2d 452 (Idaho, 1956); Toy v. Rickert, 53 N.J. Super. 27, 146 A. 2d 510 (1958).

91 Seneris v. Haas, 291 P. 2d 915 (Calif., 1955). In the usual malpractice case expert medical testimony is necessary for the plaintiff to prove his case, but where the doctrine of res ipsa loquitur is applicable, expert testimony is not necessary. In view of the advantage thus gained, it is not surprising that plaintiffs frequently seek to invoke the aid of the doctrine in malpractice suits.

92 Ritter v. Sivils, 206 Oreg. 410, 293 P. 2d 211 (1956).

He may, of course,

body and that this right shall remain inviolate.93 freely consent to the commission of an act which otherwise would be tortious. As an illustration, when a person engages a physician to treat him, he impliedly consents to all procedures that form a reasonable and customary part of that treatment. In general, the physician will be protected if he can show that express or implied consent was obtained from one competent in the eyes of the law to give such consent.

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As soon as the proposed medical procedure, diagnostic test, or course of therapy constitutes a departure from merely routine diagnostic procedures, and involves an added element of risk to the patient's welfare, the courts have imposed the requirement that the physician first obtain the patient's informed consent," and his failure to do so will subject him to liability. In recognition of the patient's fundamental right of freedom from an unauthorized invasion of his person, the courts have held that he may refuse to undergo even an admittedly beneficial therapeutic procedure, or essential surgery,

93 Both the common law and the first amendment to the Constitution afford protection of the individual's right to determine what shall be done with his own body. As noted by Mr. Justice Brandeis in Olmstead v. United States, 277 U.S. 438, 478 (1928): “The makers of our Constitution * * sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred the right to be let alone— the most comprehensive of rights and the right most valued by civilized man."

*

"Baxter v. Snow, 78 Utah 217, 2 P. 2d 257 (1931); Shindell, S.: "Survey of the Law of Medical Practice," J.A.M.A. 193: 127 (Sept. 27, 1965). A request for a routine physical examination would constitute the patient's implied consent to the "touching" of his person necessary to take his pulse, check his heartbeat, test his ankle and knee jerk reflexes, take his blood pressure, and take a blood sample.

"The patient's consent may be given either expressly (e.g., by the patient's verbal consent or by his signing a consent form) or impliedly, as when the patient presents himself for treatment and makes no objection to the proposed procedure. Consent is also implied in law when the patient's life is threatened and he is in immediate need of treatment but is physically unable to indicate the consent normally required by law. See cases cited infra, note 137.

"An informed consent may generally be described as one given by a patient when he understands (1) the nature of his condition, (2) the nature of the proposed treatment or procedure, (3) the alternatives to such course of action, (4) the risks involved in both the proposed and the alternative procedures, and (5) the relative chances of success or failure of the proposed and alternative procedures. There is authority for the proposition that even after authorized treatment has begun, the patient may withdraw his previously given consent, and the physician will be liable if treatment is thereafter continued, unless his withdrawal would endanger the life or health of the patient. See Mims v. Boland, 110 Ga. App. 477, 138 S.E. 2d 902 (1964).

regardless of the attending physician's opinion as to the value or necessity for such measures."7

The failure to obtain the patient's consent has been the basis for holding a physician liable for battery, on the ground that there was an unauthorized touching of the patient," as well as for negligence in failing to inform the patient of the risks of harm involved, and thereby not giving him the choice of living with his illness or consenting to the treatment and accepting its hazards.99 In view of the FTCA's exclusion against claims based on battery,' a cause of action predicated on this theory will not give rise to liability against the United States, but a cause of action for negligence in failing to explain the risks of treatment might well be the basis of Governmental liability.

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In the decided cases, the courts have emphasized the legal requirement that the consent given be an intelligent and informed one, with

97 Woods v. Brumlop, 71 N.M. 221, 377 P. 2d 520 (1962); Church v. Adler, 350 Пll. App. 471, 113 N.E. 2d 327 (1953). The subject of refusal to consent to lifesaving medical treatment is beyond the scope of this manual. Suffice to say that the authorities are not in accord as to the patient's right to determine what shall be done to his body when his life is at stake. The most noteworthy cases have involved unauthorized blood transfusions given to members of the Jehovah's Witnesses, whose religious convictions prohibit the "drinking of blood." See Acts 15: 28-29. A leading case is Application of President of Georgetown College, Inc., 331 F. 2d 1000 (D.C. Cir., 1964); cert. denied 377 U.S. 978 (1964); Cf. In re Estate of Brooks, 32 Ill. 2d 361, 205 N.E. 2d 435 (1965); Erickson v. Dilgard, 44 Misc. 2d 27, 252 N.Y.S. 2d 705 (Sup. Ct. 1962). An excellent note discussing the general subject appears in 53 Calif. L. Rev. 860 (1965).

98 Garratt v. Dailey, 46 Wash. 2d 197, 279 P. 2d 1091 (1955), second appeal, 49 Wash. 2d 499, 304 P. 2d 681 (1956); Franklyn v. Peabody, 249 Mich. 363, 228 N.W. 681 (1930). See generally McCoid, "A Reappraisal of Liability for Unauthorized Medical Treatment," 41 Minn. L. Rev. 381 (1957). Negligence is not an element of the tort of battery, and a plaintiff can recover nominal damages even though the defendant physician may be able to show that his (unauthorized) treatment was given with the highest degree of skill and actually benefited the patient. Church v. Adler, note 97.

Aiken v. Clary, 396 S.W. 2d 668 (Mo., 1965); Scott v. Wilson, 396 S.W. 2d 532 (Tex. Civ. App., 1965); Mitchell v. Robinson, 334 S.W. 2d 11 (Mo., 1960); Bowers v. Talmadge, 159 So. 2d 888 (Fla., 1964; Patrick v. Sedwick, 391 P. 2d 453 (Alaska, 1964). Kloss, D.: "Consent to Medical Treatment," Med. Sci. Law, 5: 89 (April 1965); Note, "Surgery Without Consent-Malpractice or Battery?" 29 Albany L. Rev. 342 (1965). 28 U.S.C. 2680 (h), discussed supra, page 8.

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101 There are no Federal cases directly in point. It might be argued that the failure to inform the patient of all the risks involved, or assuring him that no risk is involved, would constitute a misrepresentation, and therefore within the FTCA's exclusion against claims arising out of misrepresentation (28 U.S.C. 2680 (h)). However, it is not likely that the courts would adopt this reasoning as a basis for dismissal of the action, particularly where plaintiff has suffered substantial harm.

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the patient understanding what is to be done and the significant risks involved.102 A physician violates his duty to his patient and subjects himself to liability if he withholds any facts which are necessary to form the basis of an intelligent consent by the patient, or minimizes the known dangers of a procedure or operation in order to induce his patient's consent. At the same time, the physician must place the welfare of his patient above all else, and he sometimes must choose between two alternative courses of action. The first is to explain to the patient every risk attendant upon the proposed procedure, no matter how remote, thereby possibly alarming the patient (who may be already unduly apprehensive) to the point where he may refuse to undergo treatment which, in fact, involves only a minimal risk.1o4 The other alternative is to recognize that each patient presents a distinct problem and that his mental and emotional state is important, to the extent that in discussing with him the potential risks involved, a certain discretion must be employed, consistent with the full disclosure necessary to an informed consent. In the final

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102 Govin v. Hunter, 374 P. 2d 421 (Wyo., 1962). See also cases cited in note 99. The use of the standard form of consent will not alone satisfy the legal requirement of an informed consent. If the patient can prove that the nature and risks of the treatment were not fully explained to him, and that a reasonable and prudent practitioner would have given him the information he lacked, he may establish the breach of the accepted standard of care, notwithstanding his execution of a consent form.

103 See cases cited in note 99.

10 The disclosure of too many details could so unduly alarm the patient that it might be held to constitute bad medical practice. Ferrara v. Galluchio, 5 N.Y. 2d 16, 152 N.E. 2d 249 (1958); Furniss v. Fitchett, N.Z.L.R. 398 (1958). "The physician should neither exaggerate nor minimize the gravity of a patient's condition. He should assure himself that the patient, his relatives or his responsible friends have such knowledge of the patient's condition as will serve the best interests of the patient and the family." Opinions and Reports of the Judicial Council, AMA, Sec. 9, 69 (1960 ed.).

105 Shetter v. Rochelle, 409 P. 2d 74 (Ariz., 1965); Ditlow v. Kaplan, 181 So. 2d 226 (Fla., 1965); Roberts v. Wood, 206 F. Supp. 579 (S.D. Ala., 1962); Salgo v. Leland Stanford Jr. Univ. Bd. of Trustees, 154 Cal. App. 2d 560, 317 P. 2d 170 (1957); DeFilippo v. Preston, 53 Del. 539, 173 A. 2d 333 (1961). “The duty of the physician to disclose, however, is limited to those disclosures which a reasonable medical practitioner would make under the same or similar circumstances. How the physician may best discharge his obligation to the patient in this difficult situation involves primarily a question of medical judgment. So long as the disclosure is sufficient to assure an informed consent, the physician's choice of plausible courses should not be called into question if it appears, all circumstances considered, that the physician was motivated only by the patient's best therapeutic interests and he proceeded as competent medical men would have done in a similar situation." Natanson v. Kline, 186 Kans. 393, 350 P. 2d 1093 (1960). See Note, “Duty to Advise of Possible Adverse Effects of Treatment Depends Upon General Practice Followed by the Medical Profession in the Community," 75 Harv. L. Rev. 1445 (1962).

analysis, the judicial standard is always the same: Did the physician act as other reasonable practitioners would have acted under the circumstances?

There are two areas of special concern in discussing the matter of consent. The first relates to the treatment of minors and incompetents, and the second relates to consent where experimental procedures are involved.

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(1) Treatment of minors and incompetents—Under the general rule, minors are considered incapable of giving or withholding consent. Accordingly, an operation upon a minor requires the consent of the minor's parent or legal guardian, except when an emergency exists and a delay in commencing treatment, in order to obtain the necessary consent, would endanger the patient's life.107 The law is still unsettled with regard to whether or not a valid consent may be given by a minor who is legally considered emancipated under the provisions of a State law. The problems in this area stem from the fact that there is no uniformity among the States with regard to (1) who is deemed a minor, (2) what constitutes "emancipation,' " 109 and (3) the legal effect of "emancipation" on the matter of

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108 Zoski v. Gaines, 271 Mich. 1, 260 N.W. 99 (1935); Stetler and Moritz, Doctor and Patient and the Law, ch. 9, 142 (4th ed., 1962). Parent means the patient's father or mother. In case the parents are divorced, consent should be obtained from the parent who has custody of the child. If the child does not live with his parents, and has no legally appointed guardian, consent should be obtained from whoever stands in loco parentis (in place of the parent), such as an adult relative.

107 Smith v. Yohe, 412 Pa. 94, 194 A. 2d 167 (1963); Jackovach v. Yocom, 212 Iowa 914, 237 N.W. 444 (1931). (See note 95.) PHS regulations follow the general rule and provide that, except in an emergency, no operative procedure shall be undertaken unless the natural or legal guardian of a minor patient gives his consent. 42 CFR 35.15. The regulation makes no exception for emancipated or married minors. For a more comprehensive discussion, see pp. 48–51.

108 A male, and in many State a female also, attains his or her majority on the day before the 21st anniversary day of his or her birth. Nelson v. Sandkamp, 34 N.W. 2d 640 (Minn., 1948). In some States, however, the age of majority for a female is 18 (Alabama, Arkansas, Idaho, Illinois, Montana, Nevada, North Dakota, Oklahoma, Utah).

109 In some States the law provides that the marriage of a minor constitutes his or her emancipation from parental control (females-Nebraska, Texas. Males and females-California, Florida, Iowa, Kansas, Louisiana, Oregon, Utah). Emancipation has also been effected by judicial decision: Inakay v. Sun Laundry Corp., 42 N.Y.S. 2d 344 (1943); Kirby v. Gilliam, 28 S.E. 2d 40 (Va., 1943).