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Kenny v. Wepman6/19/2000
fore, the trial justice was neither clearly wrong, nor did she overlook or misconceive material evidence in granting a new trial on the claim of negligent recommendation of surgery.
The defendant next contended that the trial justice was clearly wrong in granting a new trial on plaintiff's allegation that defendant failed to obtain plaintiff's informed consent to the surgery. In reaching this conclusion, the trial justice reasoned that plaintiff could not have given informed consent because defendant never advised her that surgery is appropriate only when the cataract causes visual problems or interferes with a patient's lifestyle. The defendant did not take issue with this rationale; rather, he argued that plaintiff's alleged desire to have "perfect vision" in her left eye justified the surgery.
Under the doctrine of informed consent, a physician must communicate to a patient "the material risks associated with and the viable alternatives to a recommended surgical procedure." Flanagan v. Wesselhoeft, 712 A.2d 365, 371 (R.I. 1998). To recover under this doctrine, a plaintiff must also prove that if he or she had been informed of the material risks and alternative methods of treatment, he or she would not have consented to the procedure. Wilkinson v. Vesey, 110 R.I. 606, 628-29, 295 A.2d 676, 690 (1972).
Here, the trial justice was not clearly wrong in concluding that defendant failed to apprise plaintiff of viable alternatives. He did not advise plaintiff that cataract surgery would be justified only if she were experiencing vision loss or detrimental effects on her lifestyle. Additionally, it was not error to find that plaintiff would have chosen to forgo surgery had she been so advised. Therefore, the trial justice was not clearly wrong in granting a new trial on the issue of informed consent.
For these reasons, we deny and dismiss the appeal and affirm the judgment of the Superior Court, to which the papers of the case may be returned.
Justice Goldberg did not participate.
COURT: Supreme Court
Appeal from County: SOURCE OF APPEAL: Superior Washington JUDGE FROM OTHER COURT: Vogel, J.
JUSTICES: Weisberger, C.J., Lederberg, Bourcier, Flanders, JJ Concurring
NOT PARTICIPATING Goldberg, J.
Page 1 2 Rhode Island Personal Injury Attorneys
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