Legal Aspects Of Health Care Administration 11th Edition by George Pozgar

Exercise 8

Facts
On July 29, 1987, Mr. Greynolds suffered from a transient ischemic attack (TIA), a sudden loss of neurologic function caused by vascular impairment to the brain. As a result of the TIA, Greynolds had garbled speech and expressive and perceptive aphasia (a medical term used to describe the loss of the power of expression by speech, writing, or signs, or of comprehending spoken or written language). Greynolds was taken to an emergency department, where he was met by Dr. Litman. At Litman's request, Dr. Rafecas, a cardiologist, examined Greynolds. Rafecas determined that because of Greynold's past medical history, which included previous TIAs, he was at a high risk for a stroke and sought to pinpoint the exact source of vascular insufficiency to the brain.
On August 3, 1987, after receiving the results of noninvasive tests, Rafecas ordered a cerebral angiogram. Dr. Kurman performed the angiogram. During the procedure, Greynolds suffered a stroke that left him severely disabled.
Greynolds and his wife filed a medical malpractice action against Rafecas and Kurman, asserting that Rafecas negligently recommended the procedure and that Kurman performed the procedure without obtaining the informed consent of the patient.
Kurman argued that the trial court erred by refusing to enter judgment for him consistent with the answer to jury question number 3 ( Id. at 949):
Question No. 1: Do you find there was a failure to obtain informed consent?
Answer: Yes.
Question No. 2: If you answered Interrogatory No. 1 yes, then state specifically in what manner Dr. Kurman's care fell below the recognized standards of the medical community.
Answer: Mr. Greynolds was not in our estimation capable of comprehending the consent form. Therefore, Dr. Kurman should have obtained consent from the next-of-kin, specifically, Mrs. Greynolds.
Question No. 3: If you answered yes to interrogatory No. 1 and you found that Mr. Greynolds did not consent to the procedure, do you find that a reasonable person would have consented to the procedure?
Answer: Yes.
Kurman moved the trial court to grant him a judgment notwithstanding the verdict because the jury's answer to interrogatory question number 3 was inconsistent with the jury's general verdict. The trial court overruled Kurman's motion and entered judgment for the plaintiffs, and Kurman appealed.
Issue
Was there sufficient evidence to support a judgment for the plaintiffs?
Holding
The court of appeals held that the evidence was sufficient to support a judgment in favor of the patient and his wife.
Reason
The jury needed to determine that the risks involved in the cerebral angiogram were not disclosed to Greynolds, that the risks involved in the procedure materialized and caused his stroke, and that a reasonable person in the position of Greynolds would have decided against having the angiogram had the risks associated with the procedure been disclosed to him. The jury concluded that Greynolds did not consent to the angiogram because he "was not... capable of comprehending the consent form," and further noted that Kurman should have sought consent from the next of kin, specifically, the spouse. Given the evidence of Greynolds's condition when he signed the consent forms, his past medical history, and the fact that he was at an increased risk to suffer complications during an angiogram, the court found that there was sufficient evidence to support a finding of lack of informed consent.
Who should describe the risks associated with a procedure to the patient?