606 P.2d 554
Mrs. Scott’s physician advised her she had several fibroid tumors on her uterus and referred her to defendant surgeon. Defendant admitted her to the hospital where she signed a routine consent form prior to defendant’s performing a hysterectomy.1
After surgery, Mrs. Scott experienced problems with incontinence. She visited another physician who discovered she had a vesico-vaginal fistula which permitted urine to leak from her bladder into the vagina. This physician referred her to an urologist who, after three surgeries, succeeded in correcting her problems.2
Mrs. Scott, joined by her husband, filed the present action alleging medical malpractice, claiming defendant failed to advise her of the risks involved or of available alternatives to surgery. She further maintained had she been properly informed she would have refused the surgery.3
The case was submitted to the jury with instructions to which plaintiffs objected. The jury found for defendant and plaintiffs appeal.4
In plaintiffs’ amended appeal brief it is suggested that the trial court erred in failing to instruct the jury on the issue of defendant’s abandonment of plaintiff post surgery. Although plaintiffs did offer two requested instructions on this issue, not given, they did not set them out in their brief as required by the rules of this Court, 12 O.S. 1971, Ch. 15, App. 1, Rule 15.5
Whether the trial court erred in failing to instruct the jury on the issue of defendant’s abandonment of plaintiff post surgery?6
Abandonment constitutes an indicia of negligence that is adequately covered by the court's general instructions on negligence and proximate cause; a separate instruction is not required absent evidence of willful abandonment, and requested instructions must be properly presented in the appellate brief under 12 O.S. 1971, Ch. 15, App. 1, Rule 15.7
No. Plaintiffs offered two requested instructions on abandonment that were not given by the trial court.8 Plaintiffs failed to set out those instructions in their amended appeal brief as required by court rules.9 Review of the established facts reveals no evidence of willful abandonment by the defendant surgeon after the hysterectomy.10 The general instructions on negligence and proximate cause sufficiently addressed any potential abandonment claim arising from post-surgical care.11
The trial court did not err in failing to give a separate instruction on abandonment.12
Whether Oklahoma adheres to the doctrine of informed consent as the basis of an action for medical malpractice?13
Oklahoma adopts the doctrine of informed consent grounded in the principle of self-determination, under which a physician owes a duty to disclose material risks of proposed treatment, risks of foregoing treatment, available alternatives, and material risks of those alternatives; breach sounds in negligence rather than battery when consent is obtained but disclosure is inadequate, with causation determined by a subjective standard of whether the particular patient would have refused treatment if informed and with the action made prospective only.14
Yes. The court expressly recognizes that consent must stem from an understanding decision based on adequate information.15 It imposes a duty measured by the patient's need to know enough to make an intelligent choice rather than by professional custom.16 The three required elements are failure to disclose a material risk, that the patient would not have consented if informed, and that the undisclosed risk materialized causing injury.17
The court rejects the objective reasonable-patient standard for causation in favor of a subjective inquiry focused on the individual plaintiff's decision, while recognizing limited privileges for nondisclosure such as emergencies or detriment to the patient.18
Oklahoma adheres to the doctrine of informed consent as the basis of a medical malpractice action.19
Related opinions on this issue
Joined by Irwin, V. C. J., Simms, J., And Reynolds, Special Justice
Justice Barnes concurs with the majority opinion in all respects except for the standard used to determine causation in informed consent cases.20 He would adopt the reasonable man test set out in Canterbury v. Spence rather than the subjective test.21
Justice Barnes is authorized to state that IRWIN, V. C. J., SIMMS, J., and REYNOLDS, Special Justice, join in his views.22
Whether the instructions given to the jury adequately advised them of defendant’s duty to disclose material risks and alternatives?23
Instructions are sufficient if, when considered as a whole, they fairly present the law applicable to the issues raised by the evidence.24
Yes. The trial court gave broad instructions directing that the defendant should have disclosed material risks of the hysterectomy and the feasibility of alternatives.25 These instructions adequately covered the newly recognized duty of disclosure even though they did not track the precise language of the plaintiffs' requested instruction.26 The jury returned a verdict for the defendant after receiving these instructions.27
The instructions given to the jury adequately advised them of defendant’s duty.28