ROCHELLE DITLOW AND HER HUSBAND, ISRAEL DITLOW, APPELLANTS,
v.
DR. ALLAN A. KAPLAN, APPELLEE

Fla. 3d DCA | 1965-12-21
No. 65-69
Before HENDRY, C. J., and TILLMAN PEARSON and CARROLL, JJ.
181 So. 2d 226 Florida District Court of Appeal, Third District (1965) Caution
Cited by 52 cases

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Synopsis

A patient sued her physician for failing to obtain informed consent before performing a gastroscopic procedure that resulted in esophageal perforation. The trial court granted a directed verdict for the defendant doctor after a jury verdict for the plaintiff, and the appellate court affirmed, holding that the standard for informed consent disclosure is whether a reasonable medical practitioner in the community would make such disclosure under similar circumstances.


Holding

The court affirmed the directed verdict for the defendant, holding that the standard for informed consent is whether a reasonable medical practitioner in the community would make disclosure of specific risks under the same or similar circumstances, and the plaintiff failed to present evidence that it was accepted practice among gastroenterologists to advise patients of the specific risk of perforation.


Key Quotes

“the standard to be applied is whether, according to expert testimony, a reasonable medical practitioner in the community would make such a disclosure under the same or similar circumstances”

Establishes the objective community standard for determining what informed consent disclosure is required

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Facts & Procedural History

Mrs. Ditlow consulted a physician about a stomach condition suspected to be cancer, who recommended a gastroscopic procedure with biopsy and referred …

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Opinion of the Court
TILLMAN PEARSON, Judge.

TILLMAN PEARSON, Judge.

The plaintiffs appeal a final judgment which was entered upon a directed verdict for the defendant. The action was against Mrs. Ditlow’s physician for an alleged failure to secure her informed consent for a diagnostic operative procedure which resulted in her injury.

At the conclusion of all the evidence, the defendant renewed his motion for a directed verdict. The trial judge reserved ruling on the motion, and submitted the case to the jury. After a jury verdict for the plaintiffs, the trial judge directed the verdict, and entered the judgment which is appealed. We affirm.

The record indicates that the trial judge had reached his decision that the defendant’s motion for directed verdict should be granted prior to submitting the case to the jury. We commend the use of this practice because in the event we should have determined that it was necessary to reverse the ruling upon the motion for directed verdict it would not have been necessary to retry the case.

Mrs. Ditlow, plaintiff, was a woman of mature years, and had a stomach condition which caused her physician to suspect cancer. This physician advised a gastroscopic procedure which included a biopsy. He recommended the defendant-doctor as a specialist in the procedure. The plaintiff was informed that this surgical procedure entailed some risk, and she signed a consent. During the performance of the procedure, her esophagus was punctured. It was dem-onstated that she did not have cancer, and that remedial surgery for the punctured esophagus was successful. Expert testimony established that there are 16 possible risks involved in the medical procedure followed. The record also reveals that the incidence, of the realization of the risk which occurred, is approximately one in five hundred.

Before operating upon the plaintiff, the defendant-doctor was required to obtain *228her informed consent. Chambers v. Nottebaum, Fla.App.1957, 96 So.2d 716; Zaretsy v. Jacobson, Fla.App.1958, 99 So.2d 730. There is little dispute with regard to the above proposition but the problem arises when a determination is sought to be made as to whether informed consent exists in given factual circumstances.

The plaintiff contends that the defendant failed to obtain the necessary informed consent because he did not advise his patient of the specific risks inherent in the performance of the procedure.

It should be noted at this juncture that the plaintiff is not claiming on this appeal that the defendant was guilty of any negligence in the manner in which the gastros-copy was performed. Nor is there any dispute as to the fact that the plaintiff consented to the gastroscopy, and that she was informed that there were certain risks. The only question is whether, under the doctrine of informed consent, it was necessary to advise her as to the specific risks which might be encountered.

The cases which have dealt with this specific problem have uniformly held that the standard to be applied is whether, according to expert testimony, a reasonable medical practitioner in the community would make such a disclosure under the same or similar circumstances. See Di Filippo v. Preston, 3 Storey 539, 53 Del. 539, 173 A.2d 333 (1961); Williams v. Menehan, 191 Kan. 6, 379 P.2d 292 (1963); Roberts v. Young, 369 Mich. 133, 119 N.W.2d 627, 99 A.L.R.2d 1330 (1963); Govin v. Hunter, 374 P.2d 421 (Wyo.1962).

Our prior decisions indicate that the physician must adequately inform the 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 risk of perforation. We are therefore of the opinion that this case must be affirmed upon the authority of Visingardi v. Tirone, Fla.App. 1965, 178 So.2d 135, and decisions cited therein.

Affirmed.


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Citator

Cited By (26 total)

  • …lar medical community.” § 768.46(3)(a)l. Upon remand, Valcin will be required to establish through expert testimony the information which should have been conveyed to her under the circumstances. Valcin, 473 So. 2d at 1302, citing Ditlow v. Kaplan, 181 So. 2d 226 (Fla. 3d DCA 1965); Ritz v. Florida Patient’s Compensation Fund, 436 So. 2d 987 (Fla. 5th DCA 1983), review denied, 450 So. 2d 488 (Fla.1984). We note, too, that the relevant statute as presently amended will control the resolution of the issue of…
  • ED Ricke & Sons, Inc. v. Green, 468 So. 2d 908 (Fla. 1985)
    …functions before declaring a mistrial. In support of that proposition, the court cited Dysart v. Hunt, 383 So. 2d 259 (Fla. 3d DCA), rev. denied, 392 So. 2d 1373 (Fla.1980); Freeman v. Rubin, 318 So. 2d 540 (Fla. 3d DCA 1975); and Ditlow v. Kaplan, 181 So. 2d 226 (Fla. 3d DCA 1965). However, the use of these cases to support the contention that a judge is empowered to reserve ruling on a motion for a mistrial is questionable since the cited cases deal with motions for a directed verdict as opposed to motions…
  • Dysart v. Hunt, 383 So. 2d 259 (Fla. 3d DCA 1980)
    …disagreed (as we do not) with the court’s ruling on the merits of the issue, would have permitted the final resolution of the case without a second trial or a second appeal. See Freeman v. Rubin, 318 So. 2d 540 (Fla. 3d DCA 1975); Ditlow v. Kaplan, 181 So. 2d 226 (Fla. 3d DCA 1965).…

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