Dispute

Plaintiff brought suit for negligence against Dr. Pence, a neurosurgeon who had performed a laminectomy. Because of inflammation, the laminectomy was unsuccessful and the patient was paralyzed after a fall at the hospital. Defendant did not disclose risk of paralysis and estimated it to be “only 1%” in testimony. Plaintiff only brought adverse witnesses and personal testimony and the trial court granted defendant motions for directed verdict.

Questions of law

What obligation does a physician have to disclose risks of therapy to a patient? Does a physician have discretion to withhold disclosure of risks? On what basis should causality be evaluated?

Conclusion

The court reversed, finding that the trial court had erred in granting directed verdicts, as there was sufficient testimony to put the question of negligence before the jury. A physician has the privilege to withhold information from a patient but not to avoid the disclosure rule; rather, such a decision is a medical decision and is subject to the same standard of malpractice. Causality is based on whether the disclosure of risk would have changed the choice and thereby the outcome. Holding it to be too difficult to make a subjective determination of what a patient would have done, the court rather called for a test based on whether adequate disclosure could reasonably be expected to have caused a prudent person in the patient’s position to decline the treatment.