STATEMENT OF THE CASE
Amicus adopts Respondents’ statement of the case.
STATEMENT OF FACTS
This is not an informed consent case. Rather, this case addresses whether or not a patient can maintain a medical battery cause of action for allegedly revoking informed consent after surgery has commenced and while the patient is under the influence of mind-altering intravenous anesthesia.
The goal of anesthesia is to alter consciousness; to either alter it to the level of unconsciousness or to alter it to a level of reduced concern, anxiety, and awareness of what is taking place during a medical procedure. Paul G. Borash, Bruce F. Cullen, & Robert K. Stoelting, Clinical Anesthesia, p. 234 (J.B. Lippincott Co. 1989). “Intravenous anesthetics primarily modify activity within the CNS [Central Nervous System], alter consciousness, produce anti-recall effects, and, in [some cases], produce analgesia as well.” Id.
Three drugs were administered intravenously to Appellant in this case: Propofol, Versed, and Nubain. R. pp. 71-72. One of the three drugs administered intravenously, Versed, is a benzodiazepine. R. p. 245, line 13. Benzodiazepines are described generally as sedative hypnotic, anti-anxiety drugs. Sanford L. Klein, A Glossary of Anesthesia and Related Terminology, p. 73 (Medical Examination Publishing Co. 1986). In addition to its sedative effect, Versed also has an anti-recall or amnesic effect, which prevents the patient from remembering the procedure, as was the case here. R. p. 241, lines 16-21. The benzodiazepine class of drugs are popular anesthetics because they induce central nervous system depression and reduce anxiety at lower dosages than other drugs. Klein, A Glossary of Anesthesia and Related Terminology, p. 73.
The second drug administered intravenously to Appellant was Propofol, which is also a member of the sedative hypnotic group. Clinical Anesthesia, p. 1349. Propofol may be administered in doses which render the patient unconscious, or as in this case, in doses which render the patient sedated but not unconscious. R. p. 245, lines 8-11; Clinical Anesthesia, pp. 242-43.
Appellant, a self-described dental phobic, required intravenous anesthesia for this procedure, as opposed to a local anesthetic, because of her anxiety. R. pp. 132, lines 22-25 and p.133, lines 1-5. The particular combination of intravenous drugs administered to her – Versed, Propofol and Nubain - was selected both because of the collective sedative, anti-anxiety, amnesic, and pain-relieving affect of the drugs and because all three are quickly metabolized, and, therefore allow a patient a quick return to “street fitness.” R. p. 246, lines 2- 23, p. 244, lines 24-25, and p. 247, lines 1-4. When as here, the patient is sedated, but is not completely asleep or unconscious, it is common for patients to move, talk or mutter as they come out of sedation. R. p. 267, lines 2-5. Given these characteristics, using layman’s terms, Respondent Dr. Bradham compared Appellant’s condition while under the influence of these drugs to being “legally drunk.” R. p. 245, lines 1-4. As such, it is Dr. Bradham’s practice to advise patients not to drive or sign legal documents for a 24 hour period following the procedure. R. p. 245, lines 1-4. This description is confirmed by the package insert for Propofol, which provides the following in the “Information for Patients” section:
Information for Patients: Patients should be advised that performance of activities requiring mental alertness, such as operating a motor vehicle, or hazardous machinery or signing legal documents may be impaired for some time after general anesthesia or sedation.
AstraZeneca package insert for Diprivan 1% (Propofol) Injectible Emulsion; see also http://www.anaesthesia-az.com/article/509638.aspx#4. (containing similar warnings to patients, but not identical as that contained in the package insert quoted verbatim above) Appellant was under the influence of both Propofol and Versed at the time she claims to have revoked her consent. Although she does not remember revoking her consent, she bases this claim on deposition testimony of Respondents that she made mutterings during the procedure and turned her head to the side, away from Dr. Yampolosky’s instruments, during the procedure.
The outcome of this case will affect both the well-being of patients and the ability of doctors to function safely and effectively in the operating room. In affirming the lower court’s grant of summary judgment in favor of Respondents, Amicus respectfully asks this Court to refuse recognition of a medical battery claim where the claim is based on withdrawal of consent by a patient who is under anesthesia of mind-altering drugs such as Propofol and Versed. If the Court adopts a rule which allows litigation on a case-by-case basis over whether consent has been withdrawn under these conditions, the operating room will become dysfunctional. A physician will have to interpret a babble or rant by a patient, or a headshake from side to side as being made by a person with capacity and the procedure stopped lest a lawsuit result. If the procedure is stopped, the physician is not protected, as the patient may then file a lawsuit on the basis that her protest should have been ignored because it was made without comprehension of the nature and consequences of what it was she was saying. Faced with this conundrum, inevitable harm will result not only to the functioning of the operating room, but also to patients themselves. It is for these public policy reasons that Amicus files this brief.
I. WHETHER SOUTH CAROLINA LAW ALLOWS ONE TO REVOKE CONSENT FOR A MEDICAL PROCEDURE
In its order granting Respondents’ motion for summary judgment on Plaintiff’s medical battery claim, the lower court found as a matter of law that “[t]here is no legal precedent in South Carolina allowing a claim for medical battery based on a patient’s withdrawal of consent during surgery.” R. p. 3. The lower court reached this conclusion by analyzing South Carolina’s seminal case on informed consent: Hook v. Rothstein, 281 S.C 541, 316 S.E.2d 697 (Ct. App. 1984) and on out of state case law discussing medical battery causes of action. R. pp. 1-5. The Hook court limited the medical battery theory to two situations: (1) where the physician performs a procedure to which the patient has not consented, or (2) where the patient gives consent to perform one procedure and the physician performs another. Hook.
The Appellant’s claim does not fall into either one of these two categories. The Appellant asserts Respondents committed a medical battery against her, not because they failed to obtain her consent, but because she revoked her consent during surgery and Respondents did not immediately discontinue the procedure. App. Br. at p. 6. Appellant does not deny that South Carolina has not previously recognized a battery cause of action under these facts, but instead argues that South Carolina courts should allow it as courts in other jurisdictions have. See App. Br. at pp. 8-9 (citing Mims v. Boland, 138 S.E.2d 902 (Ga. App. 1964); Coulter v. Thomas, 33 S.W.3d 522 (KY 2000); Schreiber v. Physicians Ins. Co. of Wisconsin, 588 N.W.2d 26 (WI 1999).
The Appellant does not address, however, the very significant fact that she was under intravenous anesthesia at the time of her alleged revoked consent. She does not deny that significant amounts of three drugs - Propofol, Versed, and Nubain - had been administered to her intravenously over the course of this three and a half hour procedure. R. p. 244, lines 1-10. In fact, she admits that she has no memory of the procedure or of her alleged attempts to revoke her consent during the procedure. App. Br. at p. 4. Appellant’s claim is based solely on the deposition testimony of the Respondent doctors in which Dr. Bradham stated that Appellant made mutterings such as “Stop” and “Go Away” during the procedure, but concluded that these statements did not amount to a protest against the procedure. R. p.265, lines 13-19, p. 266, lines 4-12. Appellant does not contend and has not produced any evidence in support of a contention that she did not give informed consent for the osseous gum surgery performed on her by Dr. Yampolosky. App. Br. at p. 6. Accordingly, her cause of action for battery turns on the question of whether she revoked her consent to that procedure while she was under intravenous anesthesia after commencement of the surgery.
Amicus respectfully asserts that Appellant cannot maintain a cause of action under these circumstances. To allow such a claim would harm the public interest and society at large. Appellant gave consent in a lucid state, prior to administration of any drugs, and cannot revoke that consent once she has been given medication which makes her the equivalent of “legally drunk.” There is no question that, in non-emergent situations, physicians are required to obtain the informed consent of a patient prior to initiating any physical contact with that patient. If a physician fails to obtain consent or fails to warn of certain risks, the patient may have a battery or negligence cause of action against the physician. See Hook. Appellant is not seeking to recover for either of the above errors here, and is instead seeking to recover under a strict liability battery theory, for an alleged revocation of consent she does not remember making while she was under the influence of three intravenously infused anesthetic agents. If she succeeds, physicians will be required to give an altered, semi-conscious mind the ability to trump a decision made by a rational, sober, lucid mind prior to initiation of surgery or else risk lawsuits against them. Amicus urges this court to prevent this absurdity from occurring and raises the following scenarios by way of analogy to explain why the court should feel comfortable doing so.
For public policy reasons there are certain types of information which are absolutely protected from the judicial process and scrutiny despite an undeniable relevance to the underlying judicial dispute. Among these are evidence of communications between lawyers and clients; evidence of communications between husband and wife; and evidence of communications between priest and penitent. Although the application of privilege should be applied carefully, a privilege is justified when the privilege promotes “a public good transcending the normally predominant principle of utilizing all rational means for ascertaining the truth.” Elkins v. The United States, 364 U.S. 206, 234 (1960)(Frankfurter, J., dissenting).
Additionally, there are certain persons by virtue of the positions they hold who are absolutely immune from civil liability and/or criminal prosecution on account of statements made or actions taken during the course of the protected undertaking. These immunities are based on a societal recognition that the functions they undertake are too important to society to have their vigorous pursuit chilled by the threat of lawsuits and/or prosecution. Among these are absolute immunity for legislators who speak, write, argue, tortfease, or utter arguably seditious statements on the floor of the legislature; Guardians ad litem in private custody proceedings who may be guilty of malfeasances; and prosecutors. Others, because of their position, also enjoy such immunity, including the judiciary.
Finally, there are types of evidence the very nature of which is too shaky to be deemed competent to prove or disprove matters in dispute in the courts. Among these are polygraph evidence and scientific expert opinion evidence not based on a body of known facts or ideas inferred from such facts or accepted as true on good grounds and developed in accordance with a scientific method.
This court can notice that medical care is fast becoming among the most compelling issues in our society. Costs soar. People live longer and suffer the complications of age. Remarkable new medical procedures proliferate improving not only the quality of lives but the saving of them. As noted above, courts have a long history of molding protections against claims when the public good is promoted by the protection molded. A holding by this court that a person under the influence of mind-altering anesthesia may not bring an action for battery on the basis that she has withdrawn her consent to the procedure while under the mind-altering drugs would be a very limited holding. Under such a precedent, the patient still would have claims for malpractice if the doctor botched the procedure by not following the standard of care, and the patient still would have a claim on account of a doctor’s failure to give a full explanation of the risks when obtaining a sober informed consent prior to initiation of the procedure.
To adopt a rule which would allow a determination of whether consent was withdrawn on a case-by-case basis when a patient is under mind-altering anesthesia would render an increasingly important and increasingly accessed place, the operating room, a dysfunctional place. It would place the doctors in the same position as that of the legislator who would be the lesser public servant if the threat of liability hovered over her head; or the prosecutor who would be an impotent protector of the State’s interest if concerned about liability arising from the undertaking of his duties; or the Guardian ad litem who may be compelled to spurn the instinct to protect the child in favor of protecting herself if the specter of liability were to loom over her.
A holding by this
Court that a claim for battery is never actionable in the circumstances of a
case such as this would comport with the judiciary’s long and historic role of
carving out exceptions to liability in favor of a greater public good and would
also preclude an action based on information which by its nature is unreliable.
To deny the existence of a claim for medical battery in these limited
circumstances would promote a greater societal good and promote the
concentrated, undistracted efforts of a doctor in the operating room. A
holding less broad will disrupt medical practice in operating rooms and require
doctors to take, at face value, utterances which are inherently unreliable, and
in contradiction to reliable, pre-operative statements and decisions from the
same mouth, all at the expense of good medical practice and patient safety.
For the foregoing reasons, Amicus respectfully urges this court to affirm the lower court’s grant of summary judgment in Respondents’ favor by holding that South Carolina does not recognize a cause of action for medical battery based on revocation of informed consent by a patient while under the influence of mind altering anesthesia.
|April 26, 2007||HAYNSWORTH
SINKLER BOYD, P.A.
for Amicus Curiae
 The third drug, Nubain, is an analgesic, or painkiller, and does not affect mental function. Appellant’s statement in her brief to the contrary is wrong.
 Dr. Bradham testified that she routinely advises patients following administration of anesthesia of the type administered here that “they are considered legally drunk 24 hours post-op,” and that “[t]hey should not drive or sign any documents.” R. p. 282, lines 17-22. In addition, the package insert for Propofol provides in the “Information for Patients” section that performance of activities “requiring mental alertness, such as operating a motor vehicle . . . signing legal documents may be impaired for some time after general anesthesia or sedation.”
 “The privilege is based, … upon the realization by society that justice can not be done in court unless litigants are free to disclose all relevant information to their lawyers without fear that it will be divulged.” James H. Dreher, A Guide to Evidence Law in South Carolina, p. 45 (South Carolina Bar – C.L.E. Division 1979).
 “[T]he second Report of 1853 of the commissioners on common law procedure… calls attention to the special danger of ‘alarm and unhappiness occasioned to society by… compelling the public disclosure of confidential communications between husband and wife…’ and declares that ‘[a]ll communications between them should be privileged.’ ” John W. Strong, McCormick on Evidence, Vol. 1, p. 324 (5th ed. West 1999).
 “Legislators are immune from deterrents to the uninhibited discharge of their legislative duty, not for their private indulgence but for the public good. One must not expect uncommon courage even in legislators. The privilege would be of little value if they could be subjected to the cost and inconvenience and distractions of a trial upon a conclusion of the pleader, or the hazard of a judgment against them based upon a jury’s speculation as to motives.” Tenney v. Brandhove, 341 U.S. 367, 377 (1951)(emphasis added).
 “To safeguard the best interests of children, however, the Guardian’s judgment must remain impartial, unaltered by the intimidating wrath and litigious penchant of disgruntled parents. Fear of liability to one of the parents can warp judgment that is crucial to vigilant loyalty for what is best for the child; the Guardian’s focus must not be averted to appeasement of antagonistic parents.” Fleming v. Asbill, 326 S.C. 49, 56, 483 S.E.2d 751 (1997) (citations omitted).
 “[Q]ualifying a prosecutor’s [absolute] immunity would disserve the broader public interest. It would prevent the vigorous and fearless performance of the prosecutor’s duty that is essential to the proper functioning of the criminal justice system.” Williams v. Condon, 347 S.C. 227, 242-243, 553 S.E.2d 496 (Ct. App. 2001).
 See United States v. Ruhe, 191 F.3d 376, 387-388 (1999)(applying Fourth Circuit’s per se ban on admission of polygraph evidence).
 See Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579, 590 (1993).