Case Note – When common law medical negligence instruction given, no need for separate failure to consent instruction (Horsley vs. Dr. Kenneth Smith and KS Eyeworks, COA Published, 2/13/2015)

New Adair County Judicial Center, Columbia, Kentucky.

New Adair County Judicial Center, Columbia, Kentucky.

COA affirmed jury verdict in favor of defendant, Dr. Kennth R. Smith and KS Eyeworks in a medical negligence and informed consent claim. The basic facts were that Dr. Smith advised he should have cataract surgery on both eyes, explained the risks, and indicated he would anesthetize the eyes either with eye drops or an injection. Surgery on right eye was successful with Dr. Smith injecting the anesthetic which was his usual practice. Surgery on the second eye did not go so well when the needle ruptured a blood vessel in Horsley left eye resulting in blindness in the left eye.

The allegation in the complaint were common law negligence and informed consent. The informed consent claim was based upon Dr. Smith not explaining the alternative risks of eye drops versus injections.  After a 3-day trial, the jury returned a defense verdict.

The complaint stated:

4. [I]t was the duty of [Dr. Smith] to exercise that degree of learning, skill, ability, care, attention, diligence, prudence, common sense and vigilance ordinarily possessed by physicians, surgeons and ophthalmologists, practicing under the same or similar circumstances and to obtain [Horsley’s] informed consent regarding the surgical procedures to be performed . . . .

5. [Dr. Smith was] negligent in the care and treatment of [Horsley] in that [he] failed to use the same degree of skill, diligence and care as is possessed by prudent, skillful, careful and knowledgeable physicians, surgeons and ophthalmologists under the same or similar circumstances and otherwise deviated from the standard of care applicable thereto.

6. [Dr. Smith] failed to obtain [Horsley’s] informed consent regarding the surgical procedures performed upon [Horsley].

7. As a direct and proximate result of [Dr. Smith’s] negligence, deviations from the standard of care and lack of informed consent, [Horsley] sustained severe, permanent and disabling injuries . . . .

The case culminated in a three-day jury trial. Horsley argued both that Dr.
Smith negligently administered the anesthesia, and that he failed to adequately
explain the anesthesia could have been administered by using numbing drops
instead of injection. Horsley claimed that had Dr. Smith made him aware of these alternative methods, his decision to undergo surgery may have been different.

On cross-examination, Horsley’s counsel presented Dr. Smith with a page
from the American Medical Association (AMA) website. Dr. Smith agreed with
the statement there that, depending on the situation, it is appropriate to inform a patient of alternatives to the proposed course of treatment and associated risks.

Dr. Smith admitted further that although there are several ways to administer
anesthesia before cataract surgery, his standard practice was to perform an
injection. While Dr. Smith recalled discussing with Horsley the different ways of
administering anesthesia, he conceded that he did not give Horsley the option of selecting his choice of anesthesia.

Horsley also tendered a second instruction which he attributed to Palmore,
Kentucky Instructions to Juries, Fifth Ed., § 23.10. The instruction stated: “With
respect to disclosing to [Horsley] the risks of the surgical operation he proposed to perform on him, it was the duty of [Dr. Smith] to exercise the degree of care and skill expected of a reasonable competent practitioner specializing in ophthalmology and acting under similar circumstances.” (Plaintiff’s Tendered
Instruction No. 2). Except for the introductory clause regarding disclosing risks, the two proposed instructions are substantively identical. However, Horsley did
not offer this instruction as an alternative, but in addition to the first instruction.

Largely consistent with Horsley’s first instruction and paragraph 4 of his complaint, the circuit court instructed the jury as follows:

It was the duty of Dr. Kenneth Smith in treating Wilbert Horsley to exercise the degree of care and skill of a reasonably competent ophthalmologist acting under similar circumstances. If you are satisfied from the evidence that Dr. Smith failed to comply with this duty, and further satisfied that such failure was a substantial factor in causing the injuries complained of by Wilbert E. Horsley, then you will find Dr. Smith at fault.

The jury found for Dr. Smith. Horsley’s motions for a new trial or judgment notwithstanding the verdict were denied, and the trial court entered judgment in accordance with the verdict. Horsley now brings this appeal.

The COA disagreed with Horsley’s claim the doctor had a duty to alert his patient to alternative anesthesia methods and then the duty to obtain consent.

Specifically, the COA “*conclude[d] that informing the patient of risks and options and obtaining consent to surgery are just a few of the many medical responsibilities expected of physicians who must abide by a standard of care defined by the medical profession itself, the failure of which constitutes the breach of a legal duty. All such medical responsibilities can be adequately addressed in a single duty instruction. They always have been and they were in this case.”*

With but one exception which we shall discuss later [Oghia v. Hollan, 363 S.W.3d 30 (Ky. App. 2012)], we have never deviated from the approach in VanMeter, but followed it through an evolving jurisprudence and despite legislative tinkering (as also discussed infra). As discussed below, we have steadfastly applied the bare-bones approach and stuck with a single instruction defining the whole duty of the physician to his patient whether the breach alleged was a physician’s:

(1) “failure to consider the history given by the patient[,]” Mackey v. Greenview Hosp., Inc., 587 S.W.2d 249, 254 (Ky. App. 1979);

(2) “failure to timely diagnose and treat” the patient’s disease, Dennis v. Fulkerson, 343 S.W.3d 633, 634 (Ky. App. 2011);

(3) “improperly administer[ing] anesthesia[,]” Cohen v. Alliant Enters., Inc., 60 S.W.3d 536, 538 (Ky. 2001) (citing Copeland v. Humana of Kentucky, Inc., 769 S.W.2d 67 (Ky. App. 1989);

(4) “failure adequately to inform the patient” of risks associated with treatment, Keel v. St. Elizabeth Medical Ctr., 842 S.W.2d 860, 862 (Ky. 1992);

(5) “negligence . . . in performing the surgery[,]” Engle v. Clarke, 346 S.W.2d 13, 15 (Ky. 1961).

(6) “improper treatment[,]” Johnson v. Vaughn, 370 S.W.2d 591, 597 (Ky. 1963);

(7) “get[ting] beyond the field of the operation and injur[ing] some sound portion of the patient’s body not involved in the operation,” Fields v. Rutledge, 284 S.W.2d 659, 661 (Ky. 1955); or

(8) “negligence . . . in postoperative care[,]” Engle v. Clarke, 346 S.W.2d 13, 15 (Ky. 1961).

In none of these cited cases did the court give a separate jury instruction, specific to the identified medical responsibility, to supplement the general legal duty instruction. A second, more specific instruction risks improperly “giv[ing] undue prominence to certain facts and issues.” Fields, 284 S.W.2d at 662.

However, Horsley points us to a particular passage in Campanell “that instructions should not blend distinct legal concepts. Liability can be premised separately based on lack of informed consent and deviation from the standard of care.” Id. We interpret this bit of unpublished dicta consistently with established case law and our analysis that lack of informed consent is not a separate tort. At most, this passage is an unartful way of saying what was first said more than a hundred years ago in VanMeter, supra.

The COA spent a significant portion of their efforts in affirming the defense verdict addressing what some refer to as a malpractice crisis and Defendant’s expert Dr. Smith who sent newspaper articles to Horsley anonymously and then testified falsely at trial.  The Trial Court’s sanction of denying a default judgment but ordering the disclosure of the false testimony was admissible at trial.

COA affirmed the defense verdict.

Click on “continued reading” for the full text of the opinion.

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