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Ashe v. Radiation Oncology Associates12/27/1999
COURT OF APPEALS AFFIRMED
CASE REMANDED
OPINION
We granted this appeal to address the appropriate standard to be employed when assessing the issue of causation in a medical malpractice informed consent case. We find that the objective standard as set forth in this opinion best balances a patient's right to self-determination with the need for a realistic framework for rational resolution of the issue of causation. We hold that the standard to be applied in informed consent cases is whether a reasonable person in the patient's position would have consented to the procedure or treatment in question if adequately informed of all significant perils. The decision of the Court of Appeals is affirmed, and the case is remanded to the trial court for a new trial.
BACKGROUND
The plaintiff, Patricia P. Ashe, was diagnosed with breast cancer in 1988. She ultimately underwent a double mastectomy and chemotherapy as treatment for her breast cancer. In 1993, she began experiencing problems with a cough and a fever. She returned to her oncologist, Dr. Michael Kuzu, where she presented symptoms of fever, cough, pain in the abdomen, weight loss, decreased appetite, and irritability. A chest x- ray and a CT scan revealed the presence of a mass in the medial left apex of her left lung.
The record indicates that the lung tumor could possibly have been metastatic cancer from the breast. Ms. Ashe underwent surgery, and the upper portion of her left lung was removed. She underwent chemotherapy and was referred to the defendant, Dr. Steven L. Stroup, for consideration of radiation therapy. Dr. Stroup testified that chemotherapy alone would be indicated if the lung tumor were metastasized breast cancer. He, however, opined that radiation therapy would be indicated if the lung cancer were primary as opposed to secondary cancer.
Dr. Stroup prescribed radiation treatment for Ms. Ashe. She received a daily dose of 200 centigray for twenty-five days. He described the dose as a "midplane dose." Ms. Ashe sustained "radiation myelitis" caused by a permanent radiation injury to her spinal cord. She is now a paraplegic.
Dr. Stroup did not inform Ms. Ashe that the radiation treatment might result in a permanent injury to her spinal cord. According to Dr. Stroup, the risk that she would sustain a spinal cord injury was less than one percent. Mrs. Ashe proffered the testimony of her expert, Dr. Carlos Perez. Dr. Perez opined that the risk of spinal cord injury was one to two percent. Dr. Perez testified that the applicable standard of care required physicians to warn patients about the risk of radiation injury to the spinal cord.
Ms. Ashe filed the present action alleging claims for medical malpractice and lack of informed consent. At trial, she testified that she would not have consented to the radiation therapy had she been informed of the risk of paralysis. Defense counsel on cross-examination pointed out that the plaintiff did equivocate in her deposition on the issue of consent. Her deposition testimony indicated that she did not know what she would have done had she been warned about the risk of spinal cord injury . She then testified on redirect examination as follows:
True, but the risk of being paralyzed and put in a wheelchair for the rest of your life was not one of the items, if there was any discussed, because had he said that within a six-month period-which they said that would be the time frame for it to happen-had he said, `Patty, if you do this there is a risk that you will be in a wheelchair six months from now,' I would have told him, `I will take my chances.' I would not have it done.
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