DALE BOWERS, A MINOR, BY AND THROUGH HIS FATHER AND NEXT FRIEND, JAMES N. BOWERS, AND JAMES N. BOWERS, INDIVIDUALLY, APPELLANTS,
v.
EDWARD A. TALMAGE, APPELLEE; DALE BOWERS, A MINOR, BY AND THROUGH HIS FATHER AND NEXT FRIEND, JAMES N. BOWERS, AND JAMES N. BOWERS, INDIVIDUALLY, APPELLANTS, V. THEODORE J. VON STORCH, APPELLEE
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Parents of a nine-year-old boy sued two doctors for malpractice after an elective arteriogram procedure resulted in the child's partial paralysis. The court affirmed summary judgment for the anesthesiologist but reversed the directed verdict for the neurologist, finding that the question of whether informed consent was obtained presented a jury issue.
The court affirmed the summary judgment for Dr. Talmage but reversed the directed verdict for Dr. von Storch. Regarding Dr. von Storch, the court held that whether he adequately informed the parents of the operation's dangers was a question for jury determination, as evidence conflicted on whether informed consent was obtained.
“Unless a person who gives consent to an operation knows its dangers and the degree of danger, a "consent" does not represent a choice and is ineffectual.”
Establishes the legal standard for informed consent in medical procedures
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Join FLexlaw to unlock all legal intelligenceA nine-year-old boy experienced spells involving hallucinations. His mother took him to Dr. Baxter, who referred him to Dr. von Storch, a neurologist.…
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These consolidated appeals are from separate judgments in a malpractice case. The questions presented are whether the trial court erred (1) in granting a summary judgment for Dr. Talmage and (2) in directing a verdict for Dr. von Storch at the close of the plaintiffs’ case.
*889Appellants sued appellees (and other doctors who are not involved here) for damages charging malpractice proximately causing injury to the minor plaintiff. We affirm the summary judgment rendered for Dr. Talmage who was the anesthesiologist, but reverse the judgment for Dr. von Storch which was based on a directed verdict.
The injured plaintiff was a nine year old boy. Because he had spells (seeing things, etc.) the boy’s mother took him to a Dr. Baxter, who recommended he be examined by Dr. von Storch, a neurologist. Being in doubt as to whether the boy’s trouble was emotional or organic, Dr. von Storch suggested an exploratory type of surgical process, an arteriogram, rather than to submit him to psychiatric treatment. There was no emergency requiring the operation. It was optional and alternative to treatment without it. The operative procedure suggested by Dr. von Storch was a dangerous one, in which three per centum of cases were known to result in death, paralysis or other injurious outcome. In this instance the operation resulted in the partial paralysis of the boy.
Appellants argue, and this record bears them out, that there were conflicts in the evidence presenting an issue for the jury on the material question of whether informed consent for the operation was obtained from the parents. Their consent to the operation was requisite. Zaretsky v. Jacobson, Fla.App.1958, 99 So.2d 730, Chambers v. Nottebaum, Fla.App.1957, 96 So.2d 716; 25 Fla.Jur., Physicians and Surgeons, § 80. Unless a person who gives consent to an operation knows its dangers and the degree of danger, a “consent” does not represent a choice and is ineffectual. See e. g., Woods v. Brumlop, 71 N.M. 221, 377 P.2d 520, 524; Annot. 79 A.L.R.2d 1028. Cf. Zaretsky v. Jacobson, supra. Dr. von Storch was under a duty to adequately inform the parent or parents of the child as to the dangers to be anticipated as a result of the operation, and not to minimize them, and no grounds for exceptions to that rule were shown. See Williams v. Menehan, 191 Kan. 6, 379 P.2d 292; Woods v. Brumlop, supra. Whether Dr. von Storch complied with that duty was, on this record, a question for. jury determination. Here there was evidence the parents were not informed by Dr. von Storch of the dangers incident to the operation, and there was testimony by neurosurgeons it was customary to inform those who would make such a decision that the operation was a dangerous procedure.
Dr. von Storch arranged for the operation to be made by Dr. Yates who proceeded, as he was entitled to do, on consent having been obtained by Dr. von Storch. Govin v. Hunter, Wyo.1962, 374 P.2d 421, 423-424. The argument of appellees that the verdict in favor of Dr. Yates who performed the operation relieved Dr. von Storch of liability is without merit, as the bases for liability and for nonliability as to them were different.
With regard to the summary judgment for the anesthesiologist Talmage, it has not been shown that the trial judge was m error, and no useful purpose would be served by a discussion of the evidence on that feature.
The judgment entered for Dr. Talmage (appeal No. 62-605) is affirmed.
The judgment entered for Dr. von Storch (appeal No. 62-703) is reversed, and the cause is remanded for a new trial as to that defendant.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Cited By (17 total)
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Rochelle Ditlow and her husband v. Kaplan, 181 So. 2d 226 (Fla. 3d DCA 1965)…patient about the dangers to be anticipated as a result of an operation, and that evidence of the standard prevailing in the community is necessary in order to demonstrate an issue as to the breach of this duty. See Bowers v. Talmage, Fla.App.1963, 159 So. 2d 888; Visingardi v. Tirone, Fla.App.1965, 178 So. 2d 135. The plaintiff offered no evidence that it was the accepted practice in the community, among gastroenterologists and physicians of the defendant’s standing, to advise the patient of the specific r…
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Thomas v. J. R. Berrios, M.D., 348 So. 2d 905 (Fla. 2d DCA 1977)…ed Consent In obtaining the consent to an operation or a course of treatment, a physician has an obligation to advise his patient of the material risks involved. Miriam Mascheck, Inc. v. Mausner, 264 So. 2d 859 (Fla.3d DCA 1972); Bowers v. Talmage, 159 So. 2d 888 (Fla.3d DCA 1964). The extent of the duty is aptly described in ZeBarth v. Swedish Hospital Medical Center, 81 Wash.2d 12, 499 P. 2d 1 (1972), as follows: “The duty of a medical doctor to inform his patient of the risks of harm reasonably to be exp…
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Ritz v. Fla. Patient's Comp. Fund, 436 So. 2d 987 (Fla. 5th DCA 1983)…this it could be inferred that any reasonable discussion by a physician would include the big ones: death and paralysis.6 Since the Ritzes’ testimony established they were not told of these major risks, a jury issue was presented. Bowers v. Talmage, 159 So. 2d 888 (Fla. 3d DCA 1963); see also Calabrese v. Trenton State College, 162 N.J.Super. 145, 392 A. 2d 600 (Ct.App.Div.1978). For the reasons stated, I would reverse the judgment and remand this cause for trial on the issues of informed consent and lack of…
Previewing 3 of 17 citing cases — full citator treatment, depth of discussion, and citing context are member features.
Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- Silas E. Chambers v. Nottebaum, 96 So. 2d 716 (Fla. 3d DCA 1957)
- Zaretsky v. Jacobson, 99 So. 2d 730 (Fla. 3d DCA 1958)