THE STATE OF SOUTH CAROLINA
In the Court of Appeals
APPEAL FROM CHARLESTON COUNTY
Court of Common Pleas
Mikell R. Scarborough, Presiding Judge
Case No. 2004-CP-10-1001
Nitus Joanne Linog, Appellant,
Mark Yampolsky, DDS and
Eloise Bradham, MD Respondents.
FINAL BRIEF OF APPELLANT
R. Fudenberg, SC Bar#72019
H. Waggoner, SCBar#5766
TABLE OF CONTENTS
Table of Authorities ........................................................................................................... iii
Statement of Issues on Appeal ........................................................................................... 1
Statement of the Case ......................................................................................................... 1
Statement of Facts .............................................................................................................. 2
I. GENERAL PRINCIPLES ............................................................................................. 8
A. Standards Governing Summary Judgment........................................................................ 8
B. The Right To Control Of One's Own Body Is Sacred ..................................................... 8
SUGGESTION THAT SOUTH CAROLINA WILL NOT RECOGNIZE
REVOCATION OF CONSENT AS A BASIS FOR MEDICAL BATTERY IS
ERRONEOUS .................................................................................................................... 9
TRIAL COURT ERRED IN HOLDING THAT EXPERT TESTIMONY WAS
REQUIRED TO MAKE OUT A JURY ISSUE IN THIS REVOCATION-OF-CONSENT
CASE ................................................................................................................................ 10
Trial Court Improperly Used Evidentiary Standards for Informed
Consent / Malpractice Cases
1. Cases involving the absence of consent differ from cases involving consent that
is insufficiently "informed" ........................................................................................... 10
2. Expert testimony is not required to show absence of consent ................................... 10
3. Expert testimony is not required to show a procedure could have been stopped ....... 13
4. Expert testimony is not required to show damages .................................................. 17
Conclusion ........................................................................................................................... 17
The Trial Court's Decision Cannot Be Saved Under the "Right for the Wrong
Doctrine ............................................................................................................................... 18
1.The South Carolina Adult Health Care Consent Act, S.C. Code Ann. § 44-60-10
et seq. (Supp. 2005), aids Linog, not Yampolsky and Bradham .................................. 18
(a) That Act aids Linog because it refuses to limit evidence of the patient's intent ........... 19
(b) That Act aids Linog because it properly puts the burden on Yampolsky and
Bradham .................................................................................................................... 19
Conclusion ............................................................................................................................ 23
Overall Conclusion ................................................................................................................ 25
TABLE OF AUTHORITIES
South Carolina Cases
Fleming v. Rose, 350 S.C. 488, 493-494, 567 S.E.2d 857, 860 (2002)............................... 8
Harvey v. Strickland, 350 S.C. 303, 310, 315, 566 S.E.2d 529, 533, 536 (2002) ........ 9, 17
Helena Chem. Co. v. Allianz Underwriters Ins. Co.,
357 S.C. 631, 594 S.E.2d 455 (2004) ................................................................................. 8
Mali v. Odom, 295 S.C. 78, 81, 367 S.E.2d 166, 168 (Ct. App. 1988) ............................ 16
Sims v. Hall, 357 S.C. 288, 2095-96; 592 S.E.2d 315, 319 (Ct. App. 2003) ................... 16
Stallings v. Ratliff, 292 S.C. 349, 354, 356 S.E.2d 414, 417 (Ct. App. 1987) ............ 13, 16
Other State Cases
Church v. Perales, 39 S.W.3d 149, 159-60 (Tenn. App. 2000) ....................................... 11
Coulter v. Thomas, 33 S.W.3d 522, 524-525 (KY, 2000) .......................... 9, 10, 13, 14, 15
Mims v. Boland, 138 S.E.2d 902, 905, 907-908 (Ga. 1964) ....................... 9, 13, 14, 17, 19
Montgomery v. Bazaz-Sehgal, 742 A.2d 1125, 1130 (Pa. Super. 1999) ..................... 10, 12
Schreiber v. Physicians Ins. Co. Of Wisconsin,
588 N.W.2d 26, 31, 34 (WI 1999) ................................................................... 9, 13, 15, 16
The South Carolina Adult Health Care Consent Act,
S.C. Code Ann. § 44-60-10 et seq. (Supp. 2005) ........................................... 18, 19, 20, 21
STATEMENT OF ISSUES ON APPEAL
|I.||WHETHER SOUTH CAROLINA LAW ALLOWS ONE TO REVOKE CONSENT FOR MEDICAL PROCEDURES|
|II.||WHETHER THE TRIAL COURT ERRED IN HOLDING THAT EXPERT TESTIMONY IS REQUIRED TO MAKE OUT A JURY ISSUE IN THIS REVOCATION-OF-CONSENT CASE|
STATEMENT OF THE CASE
This litigation arises out of three and a half hours Appellant (hereinafter “Linog”) spent in a dental chair. Respondent Yampolsky is the periodontist and Respondent Bradham is the anesthesiologist who would not let her leave (hereinafter “Yampolsky” and “Bradham”). Linog claims Medical Battery.
This action commenced on March 2, 2004, with the filing of a Complaint alleging malpractice against Yampolsky and Bradham. Linog alleged serious injury to her cervical disk. Defendants’ Answers set forth a general denial, and various affirmative defenses. A First Amended Complaint was filed April 20, 2005, alleging an additional cause of action for medical battery.
Bradham served a Motion for Summary Judgment as to all issues on May 20th, 2005, Yampolsky on May 26, 2005. Each defendant supplemented their motion with additional grounds five months later, Bradham on October 20, 2005, and Yampolsky on October 28, 2005. On November 30, 2005, the Honorable Mikell R. Scarborough, Master-in-Equity, granted partial summary judgment, striking the Malpractice Cause of Action, but refusing to strike the Medical Battery Cause of Action.
Yampolsky and Bradham jointly filed a Motion to Reconsider on December 7, 2005, asking the Court to strike the remaining claim. A hearing was held Monday, January 30, 2006.
Following the arguments of counsel, Judge Scarborough advised he would grant the Motion. The Order granting the Motion was filed March 15, 2006.
Linog’s Notice of Intent to Appeal was filed and served on April 11, 2006.
STATEMENT OF FACTS
This litigation arises out of three and a half hours Linog spent in a dental chair. Yampolsky and Bradham are the periodontist and anesthesiologist, respectively, who refused to let her leave. Linog claims Medical Battery.
"Periodontistry" simply refers to the subset of dental work concerning the supporting structures of the teeth, such as gums. [R. p. 118, lines 1-5]. A dentist may do every procedure a periodontist may do. [R. p. 119, line 5 - p. 120, line 7]. The only difference between a dentist and a periodontist is one of self-promotion. [Id.] Being licensed in periodontistry simply allows one to promote his practice as being limited to these procedures which every dentist may do. [Id.]
Linog is a dental phobic. [R. p. 316, line 22 - p. 317, line 3]. Her fear of dentists goes beyond the usual.[Id.] Even walking into a dentist's office, she often experienced tremendous anxiety. [R. p. 90, lines 10-22].
It was determined that it would be beneficial to have her gums scraped. The formal name for the procedure is "osseous surgery." Osseous surgery, generally, involves loosening the gums in order to remove debris, bacteria, etc. In Ms. Linog's case, the purpose was "scraping tartar from her gums." [R. p. 215, lines 17-18]. It was to be essentially an "extensive cleaning." [R. p. 216, lines 15-16].
The procedure was elective. [R. p. 123, lines 4-8].
The vast majority of patients do not require intravenous sedation. [R. p. 121, line 15 - p. 122, line 19; R. p. 123, line 22 - p. 124, line 12]. I-V sedation is typically not done unless the procedure is complex. [R. p. 214, lines 14-18]. This procedure was not complex [R. p. 215, lines 1-2].
However, due to Linog’s fear, it was decided instead that she would be put under intravenous sedation. [R. p. 215, lines 4-6; R. p. 138, lines 5-9]. Yampolsky was to perform the operation, and Bradham was to provide the anesthesia.
It is to be emphasized that the sedation was not for pain. It was specifically to ease Linog’s fear of dentists. [R. p. 198; R. p. 131, line 11 - p. 132, line 4; R. p. 132, line 15 - p. 133, line 11; R. p. 214, lines 14-18; R. p. 215, lines 4-6 ("My understanding was that she was very nervous and Dr. Yampolsky asked me to provide services for that reason.)"].
Just visiting Yampolsky's office to plan the future procedure, Linog was "Sweating. Nervous appearance. White knuckles." [R. p. 136, lines 4-6]. "[V]ery apprehensive." [R. p. 134, lines 8-11; see also R. p. 198]. "[E]xtremely anxious." [R. p. 200].
The operation had to be rescheduled several times, because she missed appointments. [R. p. 92, lines 23-25; R. p. 148, lines 10-13].
On the day of the actual procedure, Linog experienced such fear as to be nauseous. [R. p. 98, lines10-20]. She was "very apprehensive." [R. p. 221, lines 23-24]. They were going to call her husband to pick her up at the end of the procedure. [R. p. 99, lines1-4]. Her husband had provided Bradham his telephone and beeper numbers. [R. p. 250, lines 11-19; R. p. 290].
Linog has no independent recollection of the events. (According to her husband, “all she knows is when she went in there she didn't feel like this and when she come out of there she was broke up.” [R. p. 299, lines 8-10]). However, according to Yampolsky’s and Bradham’s own statements:
not sit still and was trying to get out of the chair. During the first 90
minutes of the procedure.” [R. pp. 84-85].
|ii.||She was “in
constant motion during the entire procedure.” [R. p. 86].
combative during the entire procedure" [R. p. 155, line 2], by which is
meant, "Resisting." [Id., line 21].
|iv.||She was physically
restrained, tied to the chair with arm restraints. [R. p. 166, lines 7-14; R.
p. 191, lines 15-23; R. p. 194, line 10 - p. 196, line 2; R. p. 85].
|v.||She made it
"impossible" to do the work. [R. p. 265, line 13].
|vi.||The reason it was
"impossible" is because Plaintiff kept talking, saying "Go
away."; "Let me out of here."; and "Stop." [Id., lines 16-18]. However, other things she said did not always make sense; sometimes what she said was gibberish or like muttering. [R. p. 266,
Yampolsky and Bradham continued working on her for 3.5 hours despite these protests.
They finally terminated the procedure with only one-fourth of her gums being scraped. [R. p. 75 (the procedure was "discontinued"); R. p. 261, lines 7-8 (the procedure was "abandoned or discontinued."); Supp R. p. 2, lines 15-17 (“[T]they were not able to complete the procedure in its entirety, only about 25 percent of it . . . "); R. p. 310, lines 22-24 (similar)].
The medication administered to Ms. Linog that affects memory, Nubain, is typically "metabolized within nine minutes." [R. p. 224, lines 9-11]. Ms. Linog was metabolizing the drugs even faster. [R. p. 226, lines 1-23]. "[S]he was very coherent and very appropriate post-operatively." [R. p. 224, lines 11-12]. The Nubain was to help with the anxiety. [R. p. 241, lines 16-21]. Propofol, which causes sedation, was continuously infused. Bradham adjusted the dosages as the procedure continued. [R. p. 245, lines 8-12; R. p. 251, lines 1-23].
Linog’s resistance was such that Bradham decided never again to sedate someone for dentistry. [R. p. 217, lines 18-24].
Yampolsky has been in practice since 1989. [R. p. 82-83]. Among his hundreds of patients yearly [R. p. 125, line 24 - p. 126, line 4], Yampolsky had seen "Nothing like this." [R. p. 173, line 11]. By this, he means "the patient's behavior . . . the movement . . . [T]he combativeness." [Id., lines11-18].
Nor has he heard of a partner or other dentist who has encountered such resistance. [Id., line 25 - p. 174, line 25].
Yampolsky, the periodontist, was insistent that the restraints were emplaced at the decision of Bradham, the anesthesiologist; that he had no role in that. [R. p. 191, line 15 - p. 196, line 19]. Bradham was equally clear that she did not inform Ms. Linog that restraints might be used. [R. p. 242, lines 19-21].
No signed consent form was requested or obtained by Yampolsky or Bradham; Yampolsky does not recall informing Linog orally of the risks involved; [R. p. 145, line 16 - p. 146, line 2]; but is certain that she "accept[ed] the risk . . . that there may need to be extractions [of teeth]." [R. p. 147, lines 8-15]. Nor was she informed that restraints would be used. However, the failure to obtain initial consent is not the subject of this Appeal.
Linog’s protests began at the initiation of the procedure. Yampolsky’s and Bradham’s response was to give her more drugs. [R. p. 260, line 21 - p. 261, line 1 ("Q: . . . . [W]hen in the course of this three and a half hour time line did you first determine it would be a difficult sedation? A: When Dr. Yampolsky started she began talking and I deepened her level of sedation")].
Linog’s protests continued until the termination of the work.
Bradham’s medical expert, Dr. Charles Wallace, has admitted that consent may be withdrawn even after medication has been provided. "And we take the position, probably because you lawyers have told us to take this position, that even though you've been given medication, you can withdraw consent. You can't give consent once you've been medicated." [Supp. R. p. 2, lines 14-18].
When Linog pressed Yampolsky for information about what had been done, he told her only that "the anesthesia didn't work and that I had become combative;" and similarly that "things didn't go well and that I became combative . . . ." [R. p. 103, line 25 - p. 105, line 8; see also R. p. 108, line 3 - p. 109, line 7 (similar); R. p. 110, lines 2-9 (similar)].
Linog brought a claim for medical battery based on the continuation of the procedure in face of her protests. This claim is the subject of the current appeal.
In Linog's words,
I thought it was strange that if I had this reaction in the beginning, why would she continue to give me this, you know, why -- why didn't they stop it, why give me shot after shot after shot?
[R. p. 107, lines 4-9].
Linog had also brought a claim for malpractice, for which summary judgement was granted to Yampolsky and Bradham. The Hon. Mikell R. Scarborough found that Linog had failed to provide expert testimony. He held that the question of whether Ms. Linog's cervical injury occurred in the dentist's office or was due to a degenerative process brought the issue out of the "common knowledge" exception. [R. pp. 6-9].
The trial court initially rejected Yampolsky’s and Bradham’s Motion for Summary Judgment on the medical battery claim. Noting that "Plaintiff relies on the deposition testimony of the Defendants, as well as the other evidence referenced in her memorandum of law," he found that "a question of fact exists as to whether the Plaintiff withdrew her consent and whether there was a medical battery." [R. p. 8].
Yampolsky and Bradham jointly filed a Motion to Reconsider on December 7, 2005. A hearing was scheduled for Monday, January 30, 2006, at 2:00 p.m. Yampolsky and Bradham served their Memorandum of Law on Linog by facsimile at 5:15 p.m. the Friday before. At the hearing, Judge Scarborough indicated that he would grant the motion, but was doing so "not with relish." [R. p. 61, lines 4-5]. He further indicated he expected the case to be remanded. [Id., lines 12-13].
The trial court's rationale for denying Linog the opportunity to bring her medical battery case to the jury was that she had failed to provide an expert.
I. GENERAL PRINCIPLES
A. Standards Governing Summary Judgment
Summary judgment is a drastic remedy that should be cautiously invoked See, e.g., Helena Chem. Co. v. Allianz Underwriters Ins. Co., 357 S.C. 631, 594 S.E.2d 455 (2004). When reviewing an order granting summary judgment, the appellate court is to apply the same standard as the trial court. Fleming v. Rose, 350 S.C. 488, 493, 567 S.E.2d 857, 860 (2002). Summary judgment is appropriate only when there is no genuine issue of material fact such that the moving party must prevail as a matter of law. Rule 56(c), SCRCP. In determining whether any triable issues of fact exist, the court must view the evidence and all reasonable inferences that may be drawn from the evidence in the light most favorable to the non-moving party. Fleming, 350 S.C. at 493-94, 567 S.E.2d at 860.
B. The Right To Control Of One's Own Body Is Sacred
As the Supreme Court has noted,
The right to be free of unwanted medical treatment has long been recognized in this country. More than one-hundred years ago, in Union Pacific Ry. Co. v. Botsford, 141 U.S. 250, 251, 35 L. Ed. 734, 11 S. Ct. 1000 (1891), the United States Supreme Court perceived that 'no right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person.' In Schloendorff v. New York Hosp., 211 N.Y. 125, 105 N.E. 92, 93 (N.Y. 1914), Justice Cardozo stated, 'every human being of adult years and sound mind has a right to determine what shall be done with his own body. . . .' More recently, it has been noted that 'the individual's right to make decisions vitally affecting his private life according to his own conscience . . . is difficult to overstate . . . because it is, without exaggeration, the very bedrock on which this country was founded.' Wons v. Public Health Trust, 500 So. 2d 679, 687 (Fla. Dist. Ct. App. 1987), aff'd 541 So. 2d 96 (Fla. 1989 ). The right to control the integrity of one's own body spawned the doctrine of informed consent. In re Duran, 2001 PA Super 52, 769 A.2d 497 (Pa. 2001). Accordingly, the United States Supreme Court has held that a competent adult patient has the right to decline any and all forms of medical intervention, including lifesaving or life-prolonging treatment. Cruzan v. Director, Missouri Dep't of Mental Health, 497 U.S. 261, 111 L. Ed. 2d 224, 110 S. Ct. 2841 (1990).
Harvey v. Strickland, 350 S.C. 303, 310; 566 S.E.2d 529, 533 (2002).
II. ANY SUGGESTION THAT SOUTH CAROLINA WILL NOT RECOGNIZE REVOCATION OF CONSENT AS A BASIS FOR MEDICAL BATTERY IS ERRONEOUS.
The trial court found it important that "medical battery based on a withdrawal of consent is a novel question in South Carolina." [R. p. 5]. But any suggestion that the Supreme Court would find that one may never withdraw consent is erroneous. Medical consent, once given, is not irrevocable, and every state we are of that has considered the issue has so held. Coulter v. Thomas, 33 S.W.3d 522 (KY, 2000) (recognizing cause of action for medical battery based on revocation of consent); Mims v. Boland, 138 S.E.2d 902, 905, 907-908 (Ga. 1964) (same); Schreiber v. Physicians Ins. Co. Of Wisconsin, 588 N.W.2d 26, 31 (WI 1999) (same).
As the Wisconsin Court explained, id. at 31 (emphasis supplied),
There is little doubt that consent, once given, is not categorically immutable. See Mack v. Mack, 329 Md. 188, 618 A.2d 744 (Md.1993) ('a corollary to [informed consent] is the patient's right, in general, to refuse treatment and to withdraw consent to treatment once begun').
III. THE TRIAL COURT ERRED IN HOLDING THAT EXPERT TESTIMONY WAS REQUIRED TO MAKE OUT A JURY ISSUE IN THIS REVOCATION-OF-CONSENT CASE.
A. The Trial Court Improperly Used Evidentiary Standards for Informed Consent / Malpractice Cases.
1. Cases involving the absence of consent differ from cases involving consent that is insufficiently "informed"
The distinction between "informed consent" on the one hand, and "no consent" or "revocation of consent" cases on the other, has at times caused confusion. As one court has noted,
[A]s a result of Holton and the Kentucky Informed Consent Statute an action for a physician's failure to disclose a risk or hazard of a proposed treatment or procedure is now undisputedly one of negligence and brings into question professional standards of care. However, the physicians, as did the trial court, confused the issue of informed consent, i.e., the failure to disclose a risk or hazard of the surgeries, with the issue of no consent, or whether any valid consent was obtained prior to [the doctor's] performance of the surgeries.
Coulter v. Thomas, 33 S.W.3d 522, 525 (KY, 2000) (quoting Vitale v. Henchey, Ky., 24 S.W.3d 651 (2000) (emphasis is court's).
As another court has stated, "The differences between a medical malpractice informed consent case grounded in negligence (commonly referred to as an 'informed consent' case) and one based on battery are at the heart of this case and must be kept clearly in mind." Montgomery v. Bazaz-Sehgal, 742 A.2d 1125, 1130 (Pa. Super. 1999).
2. Expert testimony is not required to show absence of consent.
In a standard medical malpractice action, in which the plaintiff argues that the doctor failed to perform up to the standard of care, expert medical testimony is sensibly required to establish what that standard of care was. Similarly, in a typical informed consent case, an undisputed medical consent form is entered into evidence. It shows risks the doctor warned about that can occur even if the operation is performed properly. There, a plaintiff argues that the scope of the warning was inadequate because a reasonably competent physician would have warned of the additional risk that came to fruition. The question of which risks are sufficiently likely to occur and sufficiently serious that a competent medical professional would warn the patient is again a quintessentially expert question, requiring expert testimony.
However, where the question is whether consent was revoked, or whether consent was given, expert testimony is not required. The question is not whether the undisputed scope of a warning was reasonable, but whether consent exists.
The differences were explained by the Tennessee Appeals Court in Church v. Perales, 39 S.W.3d 149, 159-60 (Tenn. App. 2000) (emphasis supplied):
The first cause of action is one for medical battery; the second is one for failing to obtain the patient's informed consent. See Blanchard v. Kellum, 975 S.W.2d 522, 524 (Tenn.1998). While these causes of action share a common ancestry, the differences between them are more than academic.
A medical battery occurs when a physician performs an unauthorized procedure. Typically, a medical battery involves a physician performing a procedure that the patient did not know the physician was going to perform or a physician performing a procedure on a part of the body other than the one described to the patient. See Ashe v. Radiation Oncology Assocs., 9 S.W.3d 119, 121 (Tenn.1999). The controlling factual issues in these cases are whether the patient knew the physician was going to perform the procedure and whether the patient authorized the physician to perform it. According to the Tennessee Supreme Court, if the answer to either of these questions is no, a medical battery has been committed. See Blanchard v. Kellum, 975 S.W.2d at 524. Because the answers to these questions focus on the patient's knowledge and awareness, patients pursuing a medical battery claim need not present expert evidence to support their claim. See Blanchard v. Kellum, 975 S.W.2d at 524.
In contrast, a lack of informed consent violation occurs when the patient is aware that a procedure is going to be performed but is unaware of the potential risks associated with the procedure. See Ashe v. Radiation Oncology Assocs., 9 S.W.3d at 121; Blanchard v.. Kellum, 975 S.W.2d at 524. The tort does not relate to the manner in which the procedure was performed, but rather to the manner in which the physician obtained the patient's consent to perform the procedure. See German v. Nichopoulos, 577 S.W.2d 197, 202 (Tenn.Ct.App.1978), rev'd on other grounds, Seavers v. Methodist Med. Ctr., 9 S.W.3d 86 (Tenn.1999). These claims are part of the medical malpractice statutes. See Tenn.Code Ann. ß 29-26-118 (1980). Accordingly, patients seeking damages for lack of informed consent must prove that the physician's conduct fell below the applicable standard of care
The inquiry in lack of informed consent cases is whether the physician provided the patient sufficient information to enable the patient to make an intelligent and informed decision either to refuse or consent to the procedure. See Shadrick v. Coker, 963 S.W.2d 726, 732 (Tenn.1998). To prove that the information was insufficient, a patient must present evidence that his or her physician failed to disclose information about the risks of the proposed procedure that a reasonable physician would have disclosed under similar circumstances. See Ashe v. Radiation Oncology Assocs., 9 S.W.3d at 121. This evidence must take the form of expert testimony because it is clearly beyond the common knowledge of laypersons. See Bryant v. HCA Health Servs. of Tenn., Inc., 15 S.W.3d 804, 808-09 (Tenn.2000); Blanchard v. Kellum, 975 S.W.2d at 524; Harris v. Buckspan, 984 S.W.2d 944, 948 (Tenn.Ct.App.1998).
See also Montgomery v. Bazaz-Sehgal, 742 A.2d 1125, 1130 (Pa. Super. 1999) (similarly comparing the two causes of action, holding that expert testimony is not required in a medical battery case); Starozytnyk v. Reich, 871 A.2d 733, 742 (N.J. Super. 2005) (same).
Thus, in a standard "informed consent" case, the question is about whether the physician's disclosures meet the standard of a reasonable medical expert, and a medical expert is required to testify to that. When the question is whether consent was given, no medical expert testimony is required. For example, when the question is whether the signature on an informed consent form is actually the patient's, or was forged by a hospital staff member after the operation, it would be ridiculous to hold medical testimony to be required. It would similarly be ridiculous to hold that, when the question is whether the doctor orally told the patient of a risk, the doctor saying he did and the patient saying he did not, that medical expert testimony would be required.
This Court has properly so held even in a traditional "informed consent" action. Stallings v. Ratliff, 292 S.C. 349, 356 S.E.2d 414 (Ct. App. 1987). There, the questions were (1) whether the risk was one that should have been warned about, and (2) whether the risk was in fact warned about. On the first question, the Court accepted expert testimony as to whether a competent medical professional would have so warned. On the second, this Court held that lay witness testimony sufficed. The patient and her friend, who witnessed the conversation between doctor and patient, testified that no such risk was warned of. The doctor testified to the reverse. The Court held this made out a "classic jury issue," id., 292 S.C. at 354, 356 S.E.2d at 417, and reversed, directing the trial court to send the case to the jury.
Nor have courts considering a revocation of consent required expert testimony to show the revocation. Coulter v. Thomas, 33 S.W.3d 522 (KY, 2000) (question of revocation is a jury question); Mims v. Boland, 138 S.E.2d 902 (Ga. 1964) (same); Schreiber v. Physicians Ins. Co. Of Wisconsin, 588 N.W.2d 26 (WI 1999) (same).
3. Expert testimony is not required to show a procedure could have been stopped.
The trial court cites Mims v. Boland, 138 S.E.2d 902 (Ga. 1964) for the proposition that expert testimony is necessary. Mims, the first case to actually deal with revocation of medical consent, declared that expert testimony is required to show that the procedure could have been halted without serious medical damage to the patient. State courts considering the issue since Mims have distinguished that case on grounds applicable here.
They have done so on grounds that the procedure was in fact actually stopped, and the cessation did not harm the patient. Since the procedure was in fact stopped, there was no need for medical testimony as to what hypothetically would have happened had the procedure not been stopped.
In Mims, by contrast, the procedure (a barium enema) was not halted. The court there held that "[t]o constitute an effective withdrawal of consent as a matter of law after treatment or examination is in progress," it must be "medically feasible" for the doctor to desist. The Mims court held that to establish the "medical feasib[ility]" of desisting requires medical testimony. Id. at 907-08.
(The trial court notes that Linog cited Mims. She did so in her Memorandum in Opposition to Summary Judgment. But obviously, she cited Mims simply for the obvious proposition that consent may be revoked, and did not intend to import Mims' evidentiary requirements into a situation for which they were not designed).
When the Kentucky Supreme Court addressed the issue in Coulter v. Thomas, 33 S.W.3d 522 (KY, 2000), it explicitly looked to Mims for direction, and explicitly distinguished Mims. In Coulter, the plaintiff had consented to a procedure that entailed use of an automatic blood pressure cutoff (ABPC) cuff on her arm. After the procedure began, when the cuff first inflated, she complained about the cuff and demanded to have it removed. It reinflated almost immediately; she again demanded it be removed, but it was not until several minutes later that the cuff was removed. Id. at 523.
"[S]he requested a jury instruction on the claim of battery, arguing that any initial consent to use the cuff was expressly revoked when she demanded the ABPC to be removed. The trial court declined to give the instruction, and the jury returned a verdict for the defendants." Id.
Having set the stage, the Kentucky Court then explicitly cited Mims. It distinguished the case on grounds applicable here. Coulter, 33 S.W.3d at 524-25:
There is no question the plaintiff could easily prove the [medical feasibility] prong, as the cuff was actually removed during the surgery without any sort of complication. Therefore, we hold that, on remand, the jury should be allowed to determine if Appellant's consent was effectively revoked.
Similarly, the Wisconsin Supreme Court, in a revocation of consent case, albeit going to another aspect, discussed the absurdity of asking the jury to determine that what indisputably happened could have happened. Schreiber v. Physicians Ins. Co. Of Wisconsin, 588 N.W.2d 26, 34 (WI 1999):
The traditional informed consent case necessarily requires a fact finder to do more than find facts; it requires the fact finder to be prophetic. The fact finder is not only asked to determine what actually did happen but is also asked to determine what would have happened . . . . The fact finder is asked to construct a puzzle with pieces missing and, where missing, to create them so that the puzzle is complete. Yet, in this case, the fact finder is asked only to determine what did occur and to put the existing pieces of the puzzle together.
So too here. The fact-finder is not asked to determine what would have happened had the procedure been halted, because the procedure was halted. There is no need for testimony -- medical or otherwise -- on what would have happened.
Testimony, be it expert or other, is sought only on issues in dispute. Here, it is undisputed that ceasing the procedure did not damage the health of Ms. Linog. With no issue in dispute, with it agreed that the procedure was terminated before its contemplated completion, and that the termination was medically feasible, there is simply no need for any testimony.
To hold otherwise, to require an expert to opine that what did happen could have happened, would needlessly prolong and complicate litigation.
This Court has similarly held that, even in situations that generally require expert medical testimony, if it is not needed, it is not required. Stallings v. Ratliff, 292 S.C. 349,353; 356 S.E.2d 414, 417 (Ct. App. 1987).
In a medical malpractice case, expert testimony is often needed to aid the jury in deciding the issue of breach of duty, because it involves questions of medical knowledge and judgment not within the comprehension or experience of laymen. In such circumstances, the purpose of expert opinion is to aid the finder of fact in matters which are outside the range of common knowledge and experience. Hughes v. Children's Clinic, P.A., 269 S.C. 389, 237 S.E.2d 753 (1977); Staudinger v. Sooner Pipe & Supply Corp., 208 Kan.100, 490 P.2d 619 (1971); Metropolitan Ice Cream Co. v. Union Mutual Fire Insurance Co., 358 Mo. 727, 216 S.W.2d 464 (1949). However, where the evidence permits the jury to recognize or infer a breach of duty without the aid of expert testimony, such testimony is not required in order for the case to go to the jury. See Bessinger v. DeLoach, 230 S.C. 1, 94 S.E.2d 3 (1956); Welch v. Whitaker, supra; Botehlo v. Bycura, supra.
Similarly, in Mali v. Odom, 295 S.C. 78, 81, 367 S.E.2d 166, 168 (Ct. App. 1988) and later in Sims v. Hall, 357 S.C. 288, 295-96; 592 S.E.2d 315, 319 (Ct. App. 2003), this Court held that expert testimony is not required to prove a fact not in dispute.
Thus, under Mali, Sims, and Stallings, as well as under Schreiber and Coulter, expert testimony is not required to prove a fact not in dispute.
Moreover, under Stallings, a jury could use its common sense to find that having one's gums scraped is not a "medical emergency" or that it was "medically feasible" to stop the operation.
Finally, the evidence from Bradham is that Linog began protesting immediately upon Yampolsky beginning work. [R. p. 260, line 25 - p. 261, line 1]. There simply cannot be any rational dispute as to whether Yampolsky could have ceased working at that time.
4. Expert testimony is not required to show damages.
Nor is expert testimony required to show damages. The reasoning is identical. This is a battery claim, not a malpractice claim. There is no need to show damages in a battery claim. As the Supreme Court observed in a medical battery case, Harvey v. Strickland, 350 S.C. 303, 315 n.4; 566 S.E.2d 529, 536 n.4 (2002):
Dr. Strickland asserts, as an additional sustaining ground, directed verdicts were appropriate as Harvey suffered no legally cognizable injury. We disagree. We find the matter of damages was for the jury's determination. See Stevens v. Allen, 342 S.C. 47, 536 S.E.2d 663 (2000) (recognizing that every violation of a legal right imports damage and authorizes the maintenance of an action and the recovery of at least nominal damages, regardless of whether any actual damage has been sustained). See also Boan v. Blackwell, 343 S.C. 498, 541 S.E.2d 242 (2001) (analyzing damages for 'loss of enjoyment of life' and 'pain and suffering'); Gathers v. Harris Teeter, 282 S.C. 220, 317 S.E.2d 748 (Ct. App. 1984)(physical injury is not an element of a battery). . . .
Since there is no need for any testimony on damages, there is no need for expert testimony.
One is not required to have an expert testify that she never consented or that she revoked her consent. Nor is expert testimony required to show a fact not in dispute.
One Georgia case – Mims – held that, when a procedure was not stopped, for the revocation to be legally effective, the plaintiff must show that the procedure could have been stopped. Later jurisdictions encountering situations where the procedure was stopped have wisely refrained from requiring expert testimony on the issue. South Carolina courts have consistently held that the requirement of expert testimony does not extend so far as to require experts to testify as to undisputed facts. Nor is expert testimony required to establish matters that are presumed, such as damages stemming from battery.
The trial court erred in requiring expert testimony.
B. The Trial Court's Decision Cannot Be Saved Under the "Right for the Wrong Reasons" Doctrine.
The operative part of the trial court's opinion has been dealt with above. That part is,
Based on the grounds that (1) Plaintiff's claim for medical battery based on a withdrawal of consent is a novel question under South Carolina law; (2) Plaintiff failed to provide an expert to establish her theory, and (3) the Mims case, cited by the Plaintiff, requires an expert and is consistent with South Carolina law on informed consent, I find there is no genuine issue of material fact with regard tot he Plaintiff's cause of action for medical battery and the Defendants' motions should be granted.
[R. p. 5].
(The remainder of the opinion consists of (1) the final paragraph, granting Defendants' motion, id.; (2) the initial two paragraphs, setting forth the case and the standards for summary judgment, id. at 1-2, and (3) the bulk, which begins with the paragraph, "The Defendants set forth the following grounds in support of their Motion:", id. at 2, and ends on page 5 [R. p. 5]. Thus, the preponderance of the Order simply sets forth Defendants' arguments, without adopting them.)
Nevertheless, were the Court inclined to consider the "right for the wrong reasons" doctrine, Linog would make the following observation:
1. The South Carolina Adult Health Care Consent Act, S.C. Code Ann. § 44-60-10 et seq., aids Ms. Linog, not Yampolsky and Bradham.
(a) That Act aids Linog because it refuses to limit evidence of the patient's intent.
Yampolsky and Bradham relied on the South Carolina Adult Health Care Consent Act, S.C. Code Ann. § 44-60-10 et seq. (2005), to argue that Mims' evidentiary requirements should be incorporated into South Carolina law. [R. p. 5]. There, the trial court cites Yampolsky’s and Bradham’s argument that Mims' "high threshold" for sending a case to the jury "comports with" that Code Section.
However, that Section specifically states, Section 44-66-60(C):
This section does not limit the evidence on which a court may base a determination of a patient's intent in a judicial proceeding.
Linog argued that her intent was to revoke her consent. Any attempt to limit the evidence she may provide runs counter to the Code. Thus, the argument that the Court may not consider evidence because an expert did not provide his opinion of that evidence is counter to the Code.
(b) That Act aids Linog because it properly puts the burden on Yampolsky and Bradham.
Moreover, if the Adult Health Care Consent Act controls, this Court must reverse. Linog understood this Statute to refer to people who were mentally incompetent to consent to treatment in the first place, not to those who competently consented. Linog has understood Yampolsky and Bradham to be arguing all along that the evidentiary standards once one has consented differ from those in that Act. However, that Act puts the burden on Yampolsky and Bradham, not on Linog.
i. The Act provides that, for a physician to take decisions into his or her own hands, § 44-66-20(E):
A patient's inability to consent must be certified by two licensed physicians, each of whom has examined the patient. However, in an emergency the patient's inability to consent may be certified by a health care professional responsible for the care of the patient if the health care professional states in writing in the patient's record that the delay occasioned by obtaining certification from two licensed physicians would be detrimental to the patient's health. A certifying physician or other health care professional shall give an opinion regarding the cause and nature of the inability to consent, its extent, and its probable duration. If a patient unable to consent is being admitted to hospice care pursuant to a physician certification of a terminal illness required by Medicare, that certification meets the certification requirements of this item.
Since no such certification occurred, and since that Act puts the evidentiary burden on one claiming incompetence, the trial court obviously erred in placing that burden on Linog.
ii. The Act further provides, in § 44-66-30, a list of persons who, in priority, are allowed to make decisions for a patient unable to consent. It provides for a "spouse" of the person to make those decisions. § 44-66-30(A)(4). The "spouse" has priority over the doctors. Thus, even had the doctors properly certified that Linog was incompetent, their proper course of action was to ask her spouse. Testimony was that Linog’s spouse’s phone numbers and beeper number had been provided to Yampolsky and Bradham, and were written on the chart Bradham had in the room with her during the procedure.
That same section provides that if a spouse is not available, the next persons, in order of priority are, § 44-66-30(A)
(5) a parent or adult child of the patient;
(6) an adult sibling, grandparent, or adult grandchild of the patient;
(7) any other relative by blood or marriage who reasonably is believed by the health care professional to have a close personal relationship with the patient.
The same section provides only limited reasons for the health care provider to fail to consult one of the statutorily responsible persons. § 44-66-30 (C):
Priority under this section must not be given to a person if a health care provider responsible for the care of a patient who is unable to consent determines that the person is not reasonably available, is not willing to make health care decisions for the patient, or is unable to consent as defined in Section 44-66-20(6).
There is no indication in the Record that the health care providers "determined" that parents, grandparents, siblings, and grandchildren were not reasonably available, and the testimony from Yampolsky and Bradham is that they were in actual communication with the spouse. Again, if the Adult Health Care Consent Act controls, the trial court erred.
iii. That same Act provides, § 44-66-40:
Provision of health care without consent where there is serious threat to health of patient, or to relieve suffering; person having highest priority to make health care decision.
A. Health care may be provided without consent to a patient who is unable to consent if no person authorized by Section 44-66-30 to make health care decisions for the patient is available immediately, and in the reasonable medical judgment of the attending physician or other health care professional responsible for the care of the patient, the delay occasioned by attempting to locate an authorized person, or by continuing to attempt to locate an authorized person, presents a substantial risk of death, serious permanent disfigurement, or loss or impairment of the functioning of a bodily member or organ, or other serious threat to the health of the patient. Health care for the relief of suffering may be provided without consent at any time that an authorized person is unavailable.
B. Health care decisions on behalf of a patient who is unable to consent may be made by a person named in Section 44-66-30 if no person having higher priority under that section is available immediately, and in the reasonable medical judgment of the attending physician or other health care professional responsible for the care of the patient, the delay occasioned by attempting to locate a person having higher priority presents a substantial risk of death, serious permanent disfigurement, loss or impairment of the functioning of a bodily member or organ, or other serious threat to the health of the patient.
(a) This Section contemplates a reasonable attempt to locate a person authorized to make health care decisions, and that the only reason to fail to so attempt is that delay in attempting to locate such a person "presents a substantial risk of death, serious permanent disfigurement, or loss or impairment of the functioning of a bodily member or organ, or other serious threat to the health of the patient." Here, there is no evidence of such substantial risk of death or like injury. Rather, the final decision was that Yampolsky and Bradham would just wait, and complete the operation under general anesthesia, with unconscious sedation, at a hospital. Since they could wait to clean the gums on Linog’s other quadrants, they could similarly wait to clean the gum section they were working on.
(b) Physicians must first attempt to locate the persons in the priority chain, and are prohibited from considering the opinion of someone lower if someone higher can be found. Only if the chain is exhausted, or if imminent death or like injury will result, are doctors entitled by our law to do what the doctors did here.
iv. The same statute delineates, in § 44-66-70 (2005), where a health care provider might escape civil liability for proceeding against a patient's wishes:
C. A health care provider who in good faith relies on a health care decision made by a person authorized under Section 44-66-30 is not subject to civil or criminal liability or disciplinary penalty on account of his reliance on the decision.
D. A health care provider who in good faith provides health care pursuant to Sections 44-66-40 or 44-66-50 is not subject to civil or criminal liability or disciplinary penalty on account of the provision of care. However, this section does not affect a health care provider's liability arising from provision of care in a negligent manner.
In short, the Legislature has stated where a health care provider may escape liability for medical battery: when the health care provider has determined the person is incompetent, and has taken reasonable steps to find the person closest to the patient to make that decision. (Even still, the health care provider may be liable for malpractice.) The section also provides, in Parts (A) and (B), that a spouse, sibling, etc. who in good faith authorizes a procedure is not liable for medical battery. Parts (C) and (D) provide that a health care provider who in good faith relies on that spouse's or sibling's decision is not liable for medical battery.
Thus, if this Act controls, then because Yampolsky and Bradham took none of the steps the Legislature has mandated to escape liability for medical battery, they are liable for medical battery.
If Yampolsky’s and Bradham’s references to the Adult Health Care Consent Act are meant to indicate that the Act controls, then the trial court erred, for there is nothing in the Record to suggest that Yampolsky and Bradham even tried to contact Linog's spouse, much less her parents, siblings, children, grandparents, etc., nor that waiting to clean all of her gums would be life-threatening or substantially certain to produce serious injury. Nor that two physicians certified the prerequisite question that she was incompetent, so as to allow the options above.
That Act attempts to recognize the dignity of patients, by requiring health care providers who would maintain that they are authorized to override the patient's wishes to first put in writing, by two physicians, that the patient is incompetent. Then, if the patient is incompetent, they must next attempt to locate persons in the patient's community, not in the health care community, who may speak for the patient. The Act creates a very limited exception, that when, in the reasonable judgment of the health care provider, the delay in contacting such a person creates a substantial risk of death, or of injury akin to death, the medical provider may proceed. Gum scraping is not what the Legislature had in mind.
If Yampolsky’s and Bradham’s claims mean that Mims' evidentiary requirements comport with the general spirit of the Act, then they misapprehend the spirit of that Act. The entire thrust of that Act is to redress the balance of power between patients and physicians. It directs health care providers not to play God, but to defer to the patient's wishes, unless serious procedural guidelines are complied with. Those guidelines require a second physician to sign off, in writing, that the person is incompetent. Even when those serious procedural guidelines are complied with, and the health care provider determines that the patient cannot be trusted to make her own decisions, it orders health care providers not to step in as God, but to defer to an extensive system of people who are presumably emotionally closer to the patient: her spouse, her parents, her children, her siblings, her grandparents, her grandchildren, any one else she has directed to be consulted.
Finally, and almost incredibly, given the facts of this case, the Act provides, "This section does not limit the evidence on which a court may base a determination of a patient's intent in a judicial proceeding." Yampolsky’s and Bradham’s argument is that it "comports with" this Act to limit the evidence which a patient may present of her intent. The argument is erroneous.
All other grounds raised by Yampolsky and Bradham in their Motion, as quoted by the Court in its Order, have been dealt with above.
The right to control one's own body is one of the most sacred and deeply held rights a person has. It is an important part of the bedrock of our system. Any impediment to vindicating that right should come from the Legislature, not the Courts.
In the most closely analogous statute, the legislature took pains to state that it did not wish to limit evidence that could be provided in a "judicial proceeding" to vindicate the person's intent as to how to exercise that right.
One is not required to have an expert testify that she refused to consent or revoked her consent. Nor should this Court hold that, before one can present evidence that she revoked consent, she must have an expert testify that it was medically feasible to stop the procedure. Nor, more specifically, should the Court hold that she must present an expert to testify that the procedure could have been stopped without harm, when it was undisputed that the procedure was stopped without harm. Nor should the Court hold, contrary to statute, that she is precluded from presenting evidence from which the jury may, using its common sense, decide that the procedure could have been halted.
The procedure dragged on, taking virtually the four hours stated for the entire procedure to complete one-fourth of what was promised. Linog directed that the procedure "Stop;" that she be let "out of here." The dentist and the doctor decided that they were authorized to play God, to determine what they thought the patient's best interests were, to ignore what she was saying, and to ignore the plain language of the statute, which requires them to ask her next of kin what would be best.
While South Carolina values its medical professionals, the one thing we do not want them to do, if they are to maintain a lucrative practice here, is to override our wishes. We insist, as the State Supreme Court has noted with approval, and as the U.S. Supreme Court has noted with approval, that a patient is in charge of his or her own body. An adult may refuse even life-saving transfusions if his or her religion demands it. We put those decisions squarely in the hands of the person whose body it is.
Yampolsky and Bradham admit that they continued for three and a half hours, against Linog's stated wishes, with Linog strapped down. They state that they decided the health benefits of the procedure could be attained by bringing her to a hospital and sedating her to the point of unconsciousness, and that this was their plan to cure her entire problem.
Yampolsky and Bradham may feel entitled to operate on persons "for their best benefit" whichever way they like. They may feel entitled to keep someone strapped down, protesting "Stop," "Go away," "Let me out of here."
Our law says otherwise. Our law says that if a medical provider thinks the patient does not know what is best for her, the medical provider must put that in writing, and get another medical provider to put it in writing. Then, they must find a person related to the patient to make the decision. The medical provider might have been right; it might have been better in a medical sense to take the transfusion against one's religious views; it might have been better to take the artificial forearm than to forego the operation; but that is a decision for the person whose body it is.
The admissions from Yampolsky and Bradham are that -- among the roughly 400 procedures Yampolsky performs annually (and he has been in practice since 1989) -- he has never seen a patient so strongly oppose further treatment. Nor does he know of a colleague who has had a patient so strongly opposed.
What more can a patient do?
|November _______, 2006||
R. Fudenberg, SC Bar #72019
H. Waggoner, SC Bar #5766