unauthorized writing of narcotic prescription.

[rasbury]

3. In response to the dipstick other poster:
It is YOUR responsibility to know your drugs and understand their use. I have a responsibility to educate you as to why you are taking it, but the burden of healthcare remains on YOU to be educated on your condition and proper care. This means you should be able to give a better explanation when asked "why are you on this" other than "b/c my doc prescribed it for me....DUH!"
Ignorant statements like that show a person who is not taking responsibility fo rtheir own healthcare. You should be well versed in your problems as well as treatments and current medications. You are obviously computer literate enought to find this site so I reasonably believe that you should be able to look up your meds and dx to be better informed....

I wasn't going to post here again, but since you couldn't possibly have read my "tone of voice" you wouldn't know that "b/c my doctor prescribed it for me" was only sarcasm, just like I sarcastically thought, "well there was a guy round back in the alley selling morphine patches, so I figured I'd give it a whirl"--duh. I didn't actually say those things to the e.r. doctor. If you'll go back and read my post, I stated the e.r. doctor was screaming at me for having the duragesic patch, which angered me because I had a legitimate reason for pain meds and I didn't appreciate being treated the way he was treating me. I had explained to him my medical condition in detail. After he realized I wasn't a junkee, his tone softened and he gave me a lecture stating I was killing myself with narcotics and that my brain produces natural endorphines to battle natural pain. Fine and dandy doc, but what about the unnatural pain?

Further, when I was initially prescribed narcotics, many years ago, I didn't have internet access to easily keep myself informed. I ignorantly trusted medical professionals then too.

Over time, I did begin to fear I was killing myself with narcotics. The narcotics did help manage my pain, but I felt terrible all the time. Run down, lethargic, just plain awful. This is specifically why I wanted a hip replacement--to decrease my pain enough so that I could get off narcotics so that I wouldn't feel like crap 24/7. As stated before, my surgeon specifically mentions this conversation in my med record and he said I was the only patient who had ever said that to him before--that they wanted a thr to get off narcotics. Unfortunately, my new painful condition prevents me from decreasing the meds, as I had hoped. I pray this will change.

Again, about my reading the consent, I did read it word for word. I didn't, however, associate foot drop as a risk from the paralysis mention, nor did I know I was a higher risk for this "known" condition (known to medical professionals). And to deter another attack, yes I knew of foot frop as a result of a head injury, not a hip replacement.

I have my medical record and my surgeon specifically spoke of the risks he says we discussed. --(quote)"The risks, benefits, indications, and rationale for thr was discussed with the patient. Distinct possibility of the procedure not relieving her pain as discussed. Potential for dislocation or other mechanical failure as well as infection, bleeding and blood clot events discussed. The patient signs consent after all questions answered"(end quote)--Nothing about nerve damage or foot drop. The only question I had was, "Could anything go wrong that I should be aware of?" He did tell me about the dislocation possibility, but also said I wouldn't have to worry because he was good and it wouldn't happen. He told me the thr should relieve up to 65% of the pain in my hip. I was quite happy with that.

This is a "Discussion" forum, I believe. Whether you all realize it or not, many of you come off as being presumptuous and pious toward people who genuinely feel they may have legitimate cause to question their healthcare and would like to discuss their condition, which may take more than one inconveniencing post. I accept that you think my doctor did nothing wrong. That's your right. I still feel "foot drop" should have been worth a mention. Only my opinion, but then again, it's only my body.

 

[rmet4nzkx]

The ER nurse was right, you can control pain naturally, major surgery can be done without medical anesthesia. The pain signals only go one way, your nerves are asynchronious, you can learn to release your body's endorphins and to block pain. Drug seeking is very dangerous.

 

[rasbury]

The ER nurse was right, you can control pain naturally, major surgery can be done without medical anesthesia. The pain signals only go one way, your nerves are asynchronious, you can learn to release your body's endorphins and to block pain. Drug seeking is very dangerous.

It was an er doctor, and I couldn't agree more--drug seeing is dangerous, not to mention illegal. I have yet to ever ask anyone for the first drug. My doctor prescribed narcotics because nothing else could manage my pain. I was in the e.r. that day because I had an adverse reaction to the duragesic patch.
Maybe major surgery could be performed w/o anesthesia, but I don't think I'd want to try it. I don't know anyone who would either. Ouch. Natural childbirth was bad enough.

 

[kathrynne]

Sure, we CAN learn to control pain without drugs. But how many of us are ever actually taught those methods? Most patients don't even know the options are available!

After more than three decades of increasing pain that every GP "blew off" whenever I brought it up, a false diagnosis of carpal tunnel syndrome to handily define my numb and tingling fingers because of degenerative disc disease in my cspine that had ultimately caused spinal cord damage, I finally used the exact term that caused a GP to refer for an MRI. This resulted in a 3-level laminectomy (inadequate post-op instructions that increased the pain, too), followed by a two-level diskectomy/fusion, years of PT and several pain management procedures. Yep, you got it! Years on increasing doses of narcotics, whether I liked it or not.

I had to fight to get the pain management referral, and got my first EVER week being pain-free with their first nerve root block. But it only lasted a couple of weeks, and my health insurance is the only one that still considers the radiofrequency nerve root burning that could have lasted longer term to be experimental.

My PM clinic claims to offer biofeedback and other techniques to control pain, but that was never even presented as an option. If I couldn't have the $15k radiofrequency procedure, I was SOL. I had no choice but to go back to my GP.

Tired of my PA's growing reluctance to write prescriptions and getting NO other answers to end the pain, I had to do intensive research on pain relief. Learned that hypnosis actually CAN work with chronic pain, and researched reputable local hypnotherapists. GP's office had its doubts, as did I, but after a few sessions things HAD improved. I've a tape of the final hypnosis exercise for reinforcement, but don't need to use it often at all to kill what's left of my pain. It has not, however, helped with the tinnittus (another effect of the nerve damage), which that first PM procedure had actually eliminated for a week!

Most pain patients don't learn of hypnosis as an option. I was discouraged by my GP's office, even though they believe in combining western and alternative medicines. They offered chiropractic and acupuncture, but chiro was no longer permitted after surgery and acupuncture hadn't worked before. Yet hypnotherapy was not considered an option? That it worked for me was great, and I hope it's recommended to their future pain patients.

BTW, I've HAD surgery without anesthesia and will never do so again--hypnosis or no. I don't believe in suffering unnecessary pain, and will demand whatever anesthetic I can get for potentially painful procedures. The hypnosis techniques work great for the chronic pain, but I'll take the nitrous and novocaine at the dentist, tyvm!

 

[ellencee]

rasbury: This is a "Discussion" forum, I believe. Whether you all realize it or not, many of you come off as being presumptuous and pious toward people who genuinely feel they may have legitimate cause to question their healthcare and would like to discuss their condition, which may take more than one inconveniencing post. I accept that you think my doctor did nothing wrong. That's your right. I still feel "foot drop" should have been worth a mention. Only my opinion, but then again, it's only my body.

This forum is for discussing the legal aspects of a situation. It is not a forum for discussing "I (still) feel" it's wrong aspects of a situation and handing out a boost on your way to an attorneys office...though I admit, I'd like to be a fly on the wall and watch you as you sit face to face across from IAAL, Belize Breeze, HomeGuru, or JETX, etc. as you hear his/her explanation of legal vs. "I feel".

Just for the jollies, I've found some information for you--unfortunately for you, it is the legal aspect of your situation and really may not be of any real interet to you...but, here goes:
http://orthopedics.about.com/
From Jonathan Cluett, M.D.,
Your Guide to Orthopedics.

What are common problems after hip replacement?
What problems are associated with hip replacement surgery?
This is a major surgery, and there are many potential complications that you should discuss with your doctor. While the success rate of this surgery is very high, the risks must be considered. Some of the more common risks are:

Implant Failure (Loosening)
Over time, implants wear out and may loosen. New technology has helped this problem, but it still happens. Most hip replacements last an average of about 20 years. Some last less than 10, some more than 30. But every implant eventually wears out. This is more of a problem in younger patients, who live longer, and typically place more demands on the implanted joint. Sponsored Links
Less Invasive Hip Surgery
Learn about minimal incision techniques for joint replacement.
www.minimally-invasivehip.com

Minimally Invasive Knee
How computers assist surgeons with minimally invasive knee surgery
www.kneereplacement.com/computers

Hip Pain
The Source for Info on Back Pain. Find the Right Care Options For You
www.spineonline.com
If the joint wears out, a revision replacement (replacement of a replacement) may be performed. This is a more complicated surgery, and with each revision surgery, the life-span of the implant decreases. This is one reason why physicians often delay joint replacement surgery as long as possible.

Blood Clots (Deep Venous Thrombosis)
Blood clots in the large veins (deep venous thrombosis, or DVT) of the leg and pelvis are common after this type of surgery. To minimize the risk of developing blood clots, your doctor will start you on blood thinning medication which will continue for several weeks following total hip replacement surgery. In addition, you will be given compression stockings to keep the blood in the legs circulating. Early mobilization after the surgery will also help prevent blood clot formation.
The concern is that if a blood clot develops, it is possible that it can travel to the lungs (called a pulmonary embolism), which can be potentially fatal. If your doctor finds evidence of blood clot formation, you will likely be given a higher dose of blood thinning medication for a longer period of time.

Dislocation
Dislocation of a hip replacement occurs when the ball dislodges from the socket. This can occur for many reasons, but often occurs after a fall or in patients with problems such as Parkinson's Disease. Sometimes it occurs just while sitting down on a low seat. For this reason, you will may be instructed to:
Not cross your legs
Use elevated seats
Not bend your hip up more than 90 degrees (towards your chest)
Sleep with a pillow between your legs
Avoid turning your foot inwards

Infection
Infection of a hip replacement is a very serious complication, and may necessitate removal of the implant. Infections sometime occur in the days and weeks following surgery (early infection), or years down the road (late infection). An attempt to surgically clear the infection, and leave the implants in place, is sometimes made, especially in the early infections. However, many infections require removal of the implants, followed by weeks of IV antibiotics. To reduce the risk of this being a problem, once you have a joint replacement you should take antibiotics when invasive procedures (such as dental work or colonoscopies) are performed.
______
DO YOU SEE FOOT DROP LISTED?
_____

NEXT POST: a Supreme Court ruling. I believe some states have passed laws that seek to "tweek" some of the elements in this case; but, I don't believe the Supreme Court's answers have been superceded.

EC

 

[ellencee]

100 Wn.2d 26, SMITH v. SHANNON

CITE: 100 Wn.2d 26, 666 P.2d 351

SMITH v. SHANNON

CAUSE NUMBER: 49142-9

FILE DATE: June 30, 1983

CASE TITLE: Vera M. Smith, Appellant, v. Roger H.
Shannon, et al, Respondents.


[1] Physicians and Surgeons - Malpractice - Informed Consent - Scope of Disclosure. In seeking a patient's consent to a medical treatment a physician need not disclose every possible risk involved but only those risks that are material as determined by the significance attached thereto by a reasonable person in the patient's position.

[2] Physicians and Surgeons - Malpractice - Informed Consent - Materiality of Risk - Determination. In order to establish that a particular risk of medical treatment is material, and therefore should be disclosed under the doctrine of informed consent, expert testimony must be presented to prove the existence, nature, potential consequences involved, and other scientific characteristics of the risk. The decision as to whether a reasonable person in the patient's position would consider the risk a significant factor in deciding to undergo treatment is within the competency of laymen and expert testimony is not required.

[3] Appeal and Error - Review - Ambiguous Findings - Construction. A trial court's written factual determinations will be interpreted to support its judgment, if possible.

[4] Physicians and Surgeons - Malpractice - Informed Consent - Materiality of Risk - Customary Practice. The customary medical practice as to disclosing particular risks prior to treatment may be considered by the trier of fact in deciding the objective materiality of the risk.

[5] Appeal and Error - Findings of Fact - Review - Sufficiency of Evidence. Findings of fact will be sustained on appeal if supported by substantial evidence, I.E., evidence sufficient to persuade a fair minded person.

[6] Appeal and Error - Review - Issues Not Raised in Trial Court - Trial by Court. In order to preserve a claim of error for consideration on appeal the issue must be called to the trial court's attention. When the court is sitting without a jury a party must inform the court of the legal principles it deems applicable and give the court an opportunity to correct perceived errors by a motion for a new trial or other post-judgment remedy.

NATURE OF ACTION: A patient who suffered phlebitis and other undesirable consequences from a radiological treatment sought damages for malpractice asserting lack of informed consent and negligence.

Superior Court: The Superior Court for Spokane County, No. 79-2-00898-7, Marcus M. Kelly, J., entered a judgment in favor of the defendants on April 17, 1981.

Supreme Court: Holding that no error occurred in the trial court's determination that a valid disclosure was made and that the claimed error in determining negligence had not been preserved for appeal, the court AFFIRMS the judgment.

COUNSEL: HAGAN, VAN CAMP & MCLENDON and W. RUSSELL VAN CAMP, for appellant.

MACGILLIVRAY & JONES, P.S., by DAN W. KEEFE, for respondents.

AUTHOR OF MAJORITY OPINION: Utter, J. -

MAJORITY OPINION: This is a medical malpractice action stating two causes of action, one for negligent treatment and one for failure to obtain the plaintiff's informed consent. The trial court, sitting without a jury, found for defendants on both causes of action. The plaintiff now appeals, claiming error in two respects: (1) application of an incorrect standard in determining what risks must be disclosed to obtain a fully informed consent; and (2) failure to measure the defendants' conduct against a standard of reasonable prudence rather than customary medical practice. We affirm, holding that the trial court did apply the proper standard governing risk disclosure and that plaintiff failed to preserve for appeal her second claim of error.

In February 1976, plaintiff, Vera Smith, contacted her attending physician, Dr. Raymond Lynberg, regarding possible kidney complications. Dr. Lynberg referred Ms. Smith to defendant Roger Shannon, a radiologist with defendant Radiology Associates of Spokane. Dr. Shannon was to administer an intravenous pyelogram (IVP) to Ms. Smith and take X-rays of her kidneys and ureters, the ducts that carry urine away from the kidneys to the bladder. An IVP is the injection of a radiopaque contrast agent, in this case, Renographin-60, into the veins of a patient. Its purpose is to enhance X-rays of the kidneys and ureters.

Prior to administering the IVP, Dr. Shannon informed Ms. Smith that her body might become flushed, that she might become nauseous and, finally, that she might become unconscious. Dr. Shannon apparently told Ms. Smith of no other risks. In particular, he did not inform her of 10 other risks which are mentioned in the PHYSICIANS' DESK REFERENCE (PDR). The PDR is a book published by drug manufacturers which describes the uses, effects, and dangers of various drugs. One of the risks of using Renographin-60, described by the PDR, is thrombophlebitis, a type of inflammation of the vein.

After informing Ms. Smith of the risks which he did mention, Dr. Shannon began the IVP. As he did so, Ms. Smith began to sneeze and experienced a shooting pain down her arm. Apparently viewing the sneezing as insignificant and unaware of Ms. Smith's pain, Dr. Shannon completed the IVP and took the X-rays.

The pain in Ms. Smith's arm persisted and soon a dark streak appeared. A week after the IVP, she visited Dr. Lynberg, who diagnosed reactive phlebitis. Reactive phlebitis is an inflammation of the vein in reaction to some irritant. Renographin-60, the contrast agent used in the IVP, is an irritant.

Ms. Smith's pain has continued and she has seen several physicians and been through related surgery twice. Specialists have diagnosed her pain as caused by damage to the nerves in her arm, however, and the record does not disclose whether or how this damage is related to Dr. Lynberg's initial diagnosis of phlebitis.

At trial, the court, weighing all of the evidence as trier of fact, dismissed Ms. Smith's cause of action for negligence on the ground that she had not demonstrated any deviation by Dr. Shannon from the established standard of medical practice. The court also rejected Ms. Smith's claim that Dr. Shannon had failed to obtain her informed consent, on the ground that Dr. Shannon had informed Ms. Smith of all material risks. While the court recognized that Dr. Shannon had not informed Ms. Smith of all of the risks described in the PDR, it concluded that Ms. Smith had failed to prove that any of these "were in fact medically significant or recognized risks." Clerk's Papers, at 94, 102. In so concluding, the court noted in particular that Ms. Smith had failed to produce sufficient expert testimony on this issue and indicated that it considered such testimony necessary.

(con't)

 

[ellencee]

I

A

The doctrine of informed consent refers to the requirement that a physician, before obtaining the consent of his or her patient to treatment, inform the patient of the treatment's attendant risks. The doctrine is premised on the fundamental principle that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body". SCHLOENDORFF v. SOCIETY OF N.Y. HOSP., 211 N.Y. 125, 129, 105 N.E. 92 (1914) (Cardozo, J.), OVERRULED ON OTHER GROUNDS, BING v. THUNIG, 2 N.Y.2d 656, 667, 143 N.E.2d 3, 163 N.Y.S.2d 3 (1957). A necessary corollary to this principle is that the individual be given sufficient information to make an INTELLIGENT decision. SEE CANTERBURY v. SPENCE, 464 F.2d 772, 783 (D.C. Cir. 1972).

The seminal case on informed consent in this state is MILLER v. KENNEDY, 11 Wn. App. 272, 522 P.2d 852 (1974), AFF'D PER CURIAM, 85 Wn.2d 151, 152, 530 P.2d 334 (1975). This Court of Appeals opinion bears the strong stamp of approval by this court, which unanimously and unequivocally affirmed it. SEE MILLER v. KENNEDY, 85 Wn.2d 151, 152, 530 P.2d 334 (1975) ("[w]e can add nothing constructive to the well considered opinion of that court and, accordingly, approve and adopt the reasoning thereof").

In MILLER, the Court of Appeals emphasized that it is for the patient to evaluate the risks of treatment and that the only role to be played by the physician is to provide the patient with information as to what those risks are. «1»



--------------------------------------------------------------------------------

«1» Certain special circumstances, none of which are pertinent here, may justify nondisclosure, however. SEE HOLT v. NELSON, 11 Wn. App. 230, 241-42, 523 P.2d 211 (1974).


--------------------------------------------------------------------------------


"Once it has been established by expert medical testimony that a risk existed, then the existence of the risk is the patient's business; and it is not for the medical profession to establish a criteria [SIC] for the dissemination of information to the patient based upon what doctors feel the patient should be told.

MILLER, at 285-86. «2»



--------------------------------------------------------------------------------

«2» All references and citations to MILLER hereafter will be to the Court of Appeals opinion.


--------------------------------------------------------------------------------


To allow physicians, rather than patients, to determine what information should be disclosed would be in direct conflict with the underlying principle of patient sovereignty. CANTERBURY v. SPENCE, SUPRA at 784.

[1] On its face, this seems to imply that every risk, no matter how minute, must be disclosed. Such an interpretation goes too far, however. As one pair of commentators has noted, a physician "need not disclose every risk which COULD be disclosed, if only because of the time required to disclose every remote risk." Waltz & Scheuneman, INFORMED CONSENT TO THERAPY, 64 Nw. U. L. Rev. 628, 635 (1970). The informed consent doctrine "does not place upon the physician a duty to elucidate upon all of the possible risks, but only those of a serious nature." ZEBARTH v. SWEDISH HOSP. MED. CTR., 81 Wn.2d 12, 25, 499 P.2d 1 (1972). SEE ALSO GATES v. JENSEN, 92 Wn.2d 246, 251, 595 P.2d 919 (1979) ("high risk"); MEEKS v. MARX, 15 Wn. App. 571, 578, 550 P.2d 1158 (1976) ("grave risks"); MILLER, at 293 (quoting American Hosp. Ass'n, STATEMENT OF A PATIENT'S BILL OF RIGHTS (1972)) ("medically significant risks"); MASON v. ELLSWORTH, 3 Wn. App. 298, 313, 474 P.2d 909 (1970) ("physician [does not] ha[ve] an obligation to detail ALL risks of a given procedure" but only "reasonably foreseeable" risks). The guide for disclosure is materiality. MILLER, at 287. The test of materiality is an objective one incorporating the underlying concept of patient sovereignty.

" The patient is endowed with the right to know each hazard which the usual person would utilize in reaching his decision. When a reasonable person in the patient's position probably would attach significance to the specific risk in deciding on treatment, the risk is material and must be disclosed.

MILLER, at 287.

In the present case, therefore, liability cannot per se be predicated on Dr. Shannon's failure to inform Ms. Smith of all of the risks described in the PDR. The trial court properly moved on to consider whether any of the undisclosed risks were material. Ms. Smith apparently concedes the propriety of this analysis, but claims that the trial court applied an erroneous test of materiality.

 

[ellencee]

B

[2] One important practical issue in informed consent cases is whether expert testimony is necessary to show materiality. Problems inherent in requiring such testimony include lack of a uniform community standard, relegation of the patient's rights to secondary importance, and the oft-described "conspiracy of silence". MASON v. ELLSWORTH, SUPRA at 308-09; WILKINSON v. VESEY, 110 R.I. 606, 623-24, 295 A.2d 676 (1972); Comment, A NEW STANDARD FOR INFORMED CONSENT IN MEDICAL MALPRACTICE CASES - THE ROLE OF THE EXPERT WITNESS, 18 St. Louis U. L.J. 256, 260-63 (1973). On the other hand, expert testimony is generally of great assistance, and very often necessary, in enabling a lay trier of fact to make a reasoned decision. 51 Wash. L. Rev. 167, 177 (1975).

We have concededly shifted to an extent on the issue of an expert testimony requirement. In ZEBARTH v. SWEDISH HOSP. MED. CTR., SUPRA, we noted that "in most instances, and as a general rule, the duty to inform the patient must be established by expert medical testimony or reasonable inferences to be drawn from it." ZEBARTH, at 24. In ZEBARTH, however, we enunciated a test for materiality based on the standard of disclosure in the medical profession. SEE ZEBARTH, at 26-27. That test has since been replaced by the "reasonable patient" test enunciated in MILLER and set out above, as we recognized in KEOGAN v. HOLY FAMILY HOSP., 95 Wn.2d 306, 318, 622 P.2d 1246 (1980). Where the focus of the materiality test is on the patient rather than the profession, expert testimony is of secondary importance.

" The jury is capable of deciding whether the doctor did not tell the patient about something that should have been revealed. The jury does not need testimony from physicians about the norm of disclosure in the community.

The usual conduct of doctors in this matter is not relevant to the establishment of the liability which is imposed by law. The jury, as lay people, are equipped to place themselves in the position of a patient and decide whether, under the circumstances, the patient should have been told.

MILLER, at 288-89. SEE ALSO KEOGAN, at 318.

MILLER does not completely obviate the need to present expert testimony, however. While the court generally stated that "[t]he testimony of medical experts is not necessary to establish the duty to disclose" (MILLER, at 285), its reasoning indicates that it was simply applying general rules regarding expert testimony. A trier of fact does not require expert testimony to determine whether a reasonable patient would consider a given risk material. On the other hand, expert testimony is necessary, for example, to establish the existence of a risk, and this was expressly recognized in MILLER, at 285, 288 n.10. The MILLER analysis of expert testimony requirements in informed consent cases is simply a particular application of the general rule that expert medical testimony is REQUIRED on only those matters "strictly involving medical science". 2 J. Wigmore, EVIDENCE 568, at 779 (rev. 1979). The basic question is whether the particular fact sought to be proved is such as is "observable by [a layperson's] senses and describable without medical training". BENNETT v. DEPARTMENT OF LABOR & INDUS., 95 Wn.2d 531, 533, 627 P.2d 104 (1981). Whether a reasonable patient would want to know of a given risk is such a fact; however, the existence, magnitude, and other scientific characteristics of the risk are not.

Understood in this context, MILLER's seemingly absolute language must be qualified somewhat. The determination of materiality is a 2-step process. Initially, the scientific nature of the risk must be ascertained, I.E., the nature of the harm which may result and the probability of its occurrence. SEE CANTERBURY v. SPENCE, SUPRA at 787-88; Waltz & Scheuneman, at 641; Comment, INFORMED CONSENT IN MEDICAL MALPRACTICE, 55 Calif. L. Rev. 1396, 1407 n.68 (1967). The trier of fact must then decide whether that probability of that type of harm is a risk which a reasonable patient would consider in deciding on treatment.

While the second step of this determination of materiality clearly does not require expert testimony, the first step almost as clearly does. King, THE STANDARD OF CARE AND INFORMED CONSENT UNDER THE TENNESSEE MEDICAL MALPRACTICE ACT, 44 Tenn. L. Rev. 225, 288 (1977). Only a physician (or other qualified expert) is capable of judging what risks exist and their likelihood of occurrence. The central reason for requiring physicians to disclose risks to their patients is that patients are unable to recognize the risks by themselves. Just as patients require disclosure of risks by their physicians to give an informed consent, a trier of fact requires description of risks by an expert to make an informed decision.

Some expert testimony is thus necessary to prove materiality. Specifically, expert testimony is necessary to prove the existence of a risk, its likelihood of occurrence, and the type of harm in question. Once those facts are shown, expert testimony is unnecessary.

 

[ellencee]

C

Ms. Smith contends that the trial court in the present case failed to properly apply the standards described above. Her central contention is that the trial court improperly based its rejection of her informed consent claim on her failure to produce sufficient expert testimony. She also claims that the court erroneously defined materiality in terms of the risks customarily disclosed by other physicians.

Regarding the need for expert testimony, Ms. Smith was required to present some expert testimony to show the magnitude and other scientific characteristics of the risks described in the PDR. No further expert testimony was necessary, however.

The trial court did indicate in its memorandum opinion that the basis for its rejection of Ms. Smith's informed consent claim was insufficient expert testimony.

"[T]he elements of the doctrine which are in the province of the medical profession must be established by testimony of medical experts. In other words, expert medical testimony is required to establish that in fact a material risk exists before the question of whether there is a duty to disclose is raised. Plaintiff has failed to produce this necessary evidence. She has not established by expert testimony that any of the 10 items on the list were in fact medically significant or recognized risks. She has failed to show that there was a duty imposed upon defendant to make any disclosures to her other than those made.

Clerk's Papers, at 93-94. The court's reference to "medically significant or recognized risks" appears to refer to the likelihood of occurrence, proof of which does require expert testimony. Yet the general tenor of its reasoning is concededly somewhat vague.

[3] The judgment of a trial court is presumed to be correct, however. MATTICE v. DUNDEN, 193 Wash. 447, 450, 75 P.2d 1014 (1938). In particular, "when the language of findings is equivocal and susceptible of . . . another construction, the findings will be given that meaning which sustains the judgment, rather than one which would defeat it." SHOCKLEY v. TRAVELERS INS. CO., 17 Wn.2d 736, 743, 137 P.2d 117 (1943). SEE, E.G., REDMOND v. KEZNER, 10 Wn. App. 332, 343, 517 P.2d 625 (1973) (construing "material" as used in findings of fact differently than as used in law governing anticipatory repudiation). Especially in light of this presumption, we are convinced that the trial court properly applied expert testimony requirements.

[4] Ms. Smith also points to other language in the trial court's memorandum opinion, claiming that it defined materiality as the standard of disclosure in the medical profession rather than as a function of the needs of a reasonable patient. The trial court did note that a number of physicians testified that informing a patient of the risk of phlebitis resulting from an IVP was not customary practice in 1976. Nowhere, however, is there any indication that the trial court viewed this testimony as dispositive rather than merely considered it as some evidence. MILLER expressly recognizes that customary practice may be considered as evidence. MILLER, at 288 n.10. This claim of error must thus be rejected as well.

D

[5] While Ms. Smith does not expressly challenge the sufficiency of the evidence, a review of it is appropriate to assure that we have correctly interpreted the trial court's application of the law. In undertaking such review, however, it must be recalled that our review is limited to the determination of whether the findings are supported by substantial evidence. BROWN v. SAFEWAY STORES, INC., 94 Wn.2d 359, 372-73, 617 P.2d 704 (1980). Evidence is substantial if it is sufficient to persuade a fair-minded person. BROWN, at 373.

In the instant case, there was sufficient evidence to support the trial court's findings. Of the five witnesses who testified about the likelihood of occurrence of the undisclosed risks, four characterized their occurrence as "remote", "very rare", or "occasional". The fifth simply concluded that the undisclosed risks were not "material". The only statistical evidence presented regarding the undisclosed risks was (1) that the chance of death was about 8.6 in 1 million and (2) that one study showed an occurrence of phlebitis in only .05 percent of over 21,000 cases. These small probabilities compare quite favorably with those in other cases where nondisclosure has been held justified. SEE, E.G., STOTTLEMIRE v. CAWOOD, 213 F. Supp. 897 (D.D.C. 1963) (1/800,000 chance of aplastic anemia); YEATES v. HARMS, 193 Kan. 320, 393 P.2d 982 (1964) (1.5 percent chance of loss of eye); STARNES v. TAYLOR, 272 N.C. 386, 158 S.E.2d 339 (1968) (1/250 to 1/500 chance of perforation of esophagus); CF. BOWERS v. TALMAGE, 159 So. 2d 888 (Fla. Dist. Ct. App. 1963) (3 percent chance of death, paralysis or other injury required disclosure); SCOTT v. WILSON, 396 S.W.2d 532 (Tex. Civ. App. 1965), AFF'D, 412 S.W.2d 299 (Tex. 1967) (1 percent chance of loss of hearing required disclosure). Moreover, no evidence at all was presented of the dangers which phlebitis presents, other than Dr. Shannon's testimony that "ordinarily it is a self-limited problem with no further difficulty." «3»



--------------------------------------------------------------------------------
_______
This sited case seems worth reading since as it relates to paralysis (foot drop is a form of paralysis).
CF. BOWERS v. TALMAGE, 159 So. 2d 888 (Fla. Dist. Ct. App. 1963) (3 percent chance of death, paralysis or other injury required disclosure)

EC

 

[zippysgoddess]

Great information there ellencee. I would also like to point out that sometimes it is the insurance company that requires a doctor's only signature on prescriptions for narcotics and opiates. When I go to my doc for my pain management, I often see the CNP, she can only sign my regular scrips for items such as birth control, antidepressants, and ibuprofen. Any time I have needed something stronger, she has to take the prescriptions out to the Doctor himself, she has to show him my chart as well as explain why they are needed, then he signs them. If she signs them, my insurance will not pay for them.

So there are various reasons a scrip might not be filled if someone other than a Doc signs it. It could be due to pharmacy policy, docs office policy, or insurance policy. While it is sad that you did without necessary meds for so long, it was not physically damaging and caused you no harm. You can live with pain, it is annoying and inconvenient but pain itself does not kill.

ellencee knows what she is talking about, the reason docs and scrip meds cost so much these days is because of people filing so many frivilous lawsuits and it really needs to stop.

I am not sure if this applies in all states, but in PA, everytime I need a prescription for a Schedule II or higher drug, I have to see my doc, they are no longer allowed to provide us with more than one refill at a time. It is abuse and stupid lawsuits that have caused these hassles for the rest of us.

 

[zippysgoddess]

I would also like to ask why you contradict yourself? No one here will help you at all if you don't tell us the whole truth. First you say she told you she couldn't write it and did, then you mailed it in, then you say she mailed it in and you didn't know who wrote it until later. Make up your mind.

 

[NEIASD]

Who Mailed the Script?

I don't know to what extent you would have a "legal" case--but I will give you my common sense nursing point of view.

Your posts contradict each other.

SD laws are similar to ND..and in SD a PA or a RNP cannot sign a script for Oxycontin.


I can relate to using a mail order pharmacy--it was mandatory under one of our insurance plans. It was cheap--but the service was awful!!!

However, I have some questions for you. Did you wait until you were nearly out of pain medication to go to the office to have the script written? Once out--and realizing that you had not recieved your supply, why didn't you call the mail order pharmacy? They could have told you over the phone that the script was not properly signed. You could have then called the physician--asked for a new script for a 10 day supply to fill at your local pharmacy, and another for a 20 day supply to mail to the place you normally get your drugs. You could have even mailed this "overnight" and demanded that they expidite the process. If you could not afford to pay out of pocket for the drugs at the local pharmacy, you could have pleaded your case with your physician. If you would have told him what had happened, I assume that he may have provided you samples--or maybe even had the pharmacy bill him for a 10 day supply.

I fully believe that the consumer should take on some responsibility their health. In this case there were other things you could have done. In otherwords it was not mandatory that you suffer because of someone elses mistake.