Opinion
No. 85-684.
Filed June 12, 1987.
1. Summary Judgment. A summary judgment is to be granted where there exists no genuine issue either as to any material fact or as to the ultimate inferences to be drawn therefrom, and the moving party is entitled to judgment as a matter of law. 2. ___. The party moving for summary judgment must make a prima facie showing that if the evidence were uncontroverted at trial, he or she would be entitled to judgment as a matter of law. Such a showing shifts the burden of producing evidence as to a factual issue to the party opposing the motion. The court then views the evidence in a light most favorable to the party opposing the motion, and decides only whether there is an issue of fact, not how such an issue should be decided. 3. Medical Malpractice: Expert Witnesses: Proof. Whether a specific manner of treatment by a physician demonstrates a lack of skill or knowledge or a failure to exercise reasonable care is a matter usually to be proved by expert testimony. 4. Medical Malpractice: Informed Consent: Proof. Before there may be recovery in a medical negligence case based upon the failure of a medical care provider such as a physician to obtain an informed consent to the treatment, the plaintiff must establish that a reasonably prudent person in the plaintiff's position would not have undergone the treatment had he or she been properly informed and that the lack of informed consent was the proximate cause of the injury and damages claimed. Neb. Rev. Stat. § 44-2820 (Reissue 1984). 5. Medical Malpractice: Informed Consent: Words and Phrases. Informed consent is consent to a procedure based on information which would ordinarily be provided to the patient under like circumstances by health care providers engaged in a similar practice in the locality or in similar localities. Neb. Rev. Stat. § 44-2816 (Reissue 1984).
Appeal from the District Court for Douglas County: JAMES A. BUCKLEY, Judge. Affirmed.
Jesse O. Irvin II, for appellant.
Joni R. Kerr of Kennedy, Holland, DeLacy Svoboda, for appellee Weaver.
KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.
Appellant, Evelyn Smith, sued appellee Dr. Michael Weaver, a Nebraska physician qualified under the Nebraska Hospital Medical-Liability Act, Neb. Rev. Stat. § 44-2801 et seq. (Reissue 1984), and practicing at Omaha, alleging that he breached the professional duties he owed her as his patient. The district court sustained Weaver's motion for summary judgment, thereby dismissing Smith's petition as to him. She appeals and assigns that action as error, claiming that there exists a genuine issue of material fact. We affirm.
Smith alleged that Weaver was negligent in a number of respects, but the specific allegation on which this appeal is grounded asserts that Weaver was negligent in failing to warn Smith of the adverse side effects attendant to the taking of the prescribed medication, Clinoril.
The record establishes that Weaver first saw Smith as a patient from August through November of 1977. Smith had been experiencing, among other symptoms, fatigue, itching, hair loss, sores, and facial bumps. After hospitalizing her for a week during this period, Weaver diagnosed Smith's condition as possible systemic lupus erythematosus, a disorder of the connective tissue.
When Smith next saw Weaver, on July 24, 1979, she was experiencing increased swelling of her hands and feet and stiffness of her whole body, and was lightheaded and dizzy. After his examination and study of laboratory tests, Weaver diagnosed joint complaints and, as he had earlier, possible lupus. According to Smith, she had also been diagnosed as having arthritis. Weaver reviewed the situation with Smith on August 7, 1979, and prescribed Clinoril. According to Weaver, he advised Smith of the "primary," or "common," side effects of the drug, being dermatologic and gastrointestinal in character, and instructed her to call him if she experienced any problems. Smith denies being told of any side effect whatsoever, and states she was told only that the drug was new and "good and strong" and that Weaver wanted her to try it.
On August 8, 1979, Smith reported to Weaver by telephone that she had taken two Clinoril tablets as instructed and that her hands were swollen. According to Smith, she had also vomited and her entire body swelled and itched. Weaver believed these manifestations resulted from the disease process, and advised Smith to continue taking the Clinoril but to see him if she did not improve. Smith took two more tablets and saw Weaver the following day, August 9, 1979. Smith reported that her hands and feet were swollen, and itched. It was still Weaver's impression that Smith was most likely experiencing a flareup of the lupus but could not rule out an allergic reaction to the Clinoril. According to Weaver, there exists no test for determining whether one is allergic to Clinoril. He thus instructed her to discontinue the Clinoril, and put her on different medication. During three more telephone calls in August of 1979, Smith reported she was improving somewhat but still had pain, and her hands had peeled. Smith last saw Weaver on September 5, 1979, at which time she complained of a shoulder problem and that her hands had continued to peel.
Smith asserts that following her experience with Clinoril, she lacks energy, has pain, develops sores, has white spots on her head, her cuticles grew over her nails and were pussy, and her mouth has become dry, as the result of which her ability to speak has been adversely affected, as has her ability to eat and sleep. She can no longer work or enjoy life.
Weaver stated that he exercised the reasonable and ordinary care, skill, and knowledge ordinarily possessed and used under like circumstances by members of his profession in Omaha and similar communities, an opinion confirmed by the medical review panel convened pursuant to the Nebraska Hospital Medical-Liability Act. The record contains no countervailing expert evidence.
A summary judgment is to be granted where there exists no genuine issue either as to any material fact or as to the ultimate inferences to be drawn therefrom, and the moving party is entitled to judgment as a matter of law. Naidoo v. Union Pacific Railroad, 224 Neb. 853, 402 N.W.2d 653 (1987); Bohannon v. Guardsman Life Ins. Co., 224 Neb. 701, 400 N.W.2d 856 (1987); Witherspoon v. Sides Constr. Co., 219 Neb. 117, 362 N.W.2d 35 (1985). The party moving for summary judgment must make a prima facie showing that if the evidence were uncontroverted at trial, he or she would be entitled to judgment as a matter of law. Such a showing shifts the burden of producing evidence as to a factual issue to the party opposing the motion. The court then views the evidence in a light most favorable to the party opposing the motion, and decides only whether there is an issue of fact, not how such an issue should be decided. Marshall v. Radiology Assoc., ante p. 75, 402 N.W.2d 855 (1987); Naidoo v. Union Pacific Railroad, supra.
Applying those principles in Hanzlik v. Paustian, 211 Neb. 322, 318 N.W.2d 712 (1982), we reversed the summary judgment entered in favor of the defendant physician, where the plaintiff patient's esophagus was perforated during a dilation procedure and the physician had offered no evidence that he had met the requisite standard of care. In doing so, we held that whether a specific manner of treatment by a physician demonstrates a lack of skill or knowledge or a failure to exercise reasonable care is a matter usually to be proved by expert testimony. Accord Marshall v. Radiology Assoc., supra. On remand, the physician in Hanzlik v. Paustian, 216 Neb. 575, 344 N.W.2d 649 (1984), cert. denied 469 U.S. 854, 105 S.Ct. 179, 83 L.Ed.2d 113, again moved for summary judgment and on this occasion filed an affidavit to the effect he had followed the generally accepted and recognized standard of care or skill in the relevant and similar communities. We concluded that in the absence of countervailing evidence the affidavit established the physician's entitlement to a summary judgment dismissing the plaintiff patient's petition.
Smith contends, however, that the Hanzlik cases have no application when the claim is that a physician failed to warn of the possible side effects of a drug, thereby rendering the patient's consent to the treatment an uninformed one. She argues, in effect, that in such a situation the conclusion to be drawn from the facts does not require specific, technical, or scientific knowledge and that since the circumstances surrounding the injury are within the common experience, knowledge, and observation of laymen, expert testimony is not required. Reifschneider v. Nebraska Methodist Hosp., 222 Neb. 782, 387 N.W.2d 486 (1986).
In so arguing, she places heavy reliance upon Mitchell v. Robinson, 334 S.W.2d 11 (Mo. 1960), which stated that because the insulin shock therapy used was a rather new and radical procedure producing a high incidence of serious and permanent injuries, the treating physician had a duty to warn the plaintiff patient generally of the risks attendant to the treatment and that a jury question was presented as to whether the physicians had properly executed their respective duty in that regard. As Smith acknowledges, however, Aiken v. Clary, 396 S.W.2d 668 (Mo. 1965), disapproved Mitchell. The Aiken court did so on the basis that there had been no expert testimony to establish what the patient should have been told. Aiken held that where the nature and sufficiency of the warning given the patient is in issue, expert evidence is required to show what disclosures a reasonable medical practitioner would have given under the same or similar circumstances. The Aiken court, however, distinguished the situation in which no warning was given from the situation in which the issue relates to the sufficiency of a warning which was given.
With all due respect, it seems to us that such a distinction is illusory. The question of whether, under a particular set of circumstances, anything at all should be said to a patient is no different in character than the question of how much should be said. Nonetheless, as Woolley v. Henderson, 418 A.2d 1123 (Me. 1980), details, there are two views on the nature of the duty of a physician to disclose the risks of a particular treatment. The "professional" theory holds that the duty is measured by the standard of the reasonable medical practitioner under the same or similar circumstances, and must be determined by expert medical testimony establishing the prevailing standard and the defendant practitioner's departure therefrom. On the other hand, the "material risk" theory holds the duty to disclose is measured by the patient's need for information to balance the probable risks against the probable benefits in making the decision to either undergo or forgo the treatment proposed. Although under this theory expert medical testimony may be necessary to establish the undisclosed risk as a known danger of the procedure, expert testimony is not required to establish the physician's duty to disclose, and the fact finder can decide, without the aid of a medical expert, whether a reasonable person in the patient's position would have considered the risk significant in making his or her decision.
The Legislature of this state has declared that before there may be recovery in a medical negligence case based upon the failure of a medical care provider, such as a physician, to obtain an informed consent to the treatment, the plaintiff must establish that a "reasonably prudent person in the plaintiff's position would not have undergone the treatment had he or she been properly informed and that the lack of informed consent was the proximate cause of the injury and damages claimed." 44-2820.
Informed consent is defined in 44-2816 as "consent to a procedure based on information which would ordinarily be provided to the patient under like circumstances by health care providers engaged in a similar practice in the locality or in similar localities." Nebraska has therefore been committed by its Legislature to the "professional" theory, under which expert evidence is indispensable to establish what information would ordinarily be provided under the prevailing circumstances by physicians in the relevant and similar localities.
That being so, the uncontradicted evidence that Weaver followed the generally accepted and recognized standard of care or skill in the relevant and similar communities renders the genuine factual issue as to whether he gave Smith any warning an immaterial one, for there is no competent evidence that he was required to give any warning at all.
The district court's judgment, being correct, is affirmed.
AFFIRMED.