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Keomaka v. Zakaib5/14/1991
iscussion, and decisionmaking between physician and patient. If physicians come to believe (often incorrectly) that their obligation to obtain the patient's informed consent can be satisfied by securing a signature -- even that of a drowsy, drugged, or confused patient on an abstruse, jargon-ridden, and largely unintelligible preprinted consent form -- the law's reliance on written documentation may come to pervert its central purpose in requiring informed consent.
Weisbard, Informed Consent: The Law's Uneasy Compromise With Ethical Theory , 65 Neb. L. Rev. 749, 756-57 (1986) (footnote omitted).
In our view, Keomaka's failure to read the consent form before signing it clearly did not constitute contributory negligence. Assuming a patient has a duty to read, the form itself did not disclose anything other than that a repair would be done on Keomaka's left long finger's nerve with a possible graft from his ankle. There was nothing on the form concerning the possible effects or risks of the August 1, 1984 surgery or alternative forms of treatment, assuming such were available. As a lay person, Keomaka had neither the knowledge nor the duty to ask specific questions to obtain from Dr. Zakaib the information the doctor was required to disclose.
Accordingly, the trial court reversibly erred in giving the jury instructions on contributory negligence.
At oral argument, Dr. Zakaib stated that interrogatory 3 in the special verdict form dealt with Keomaka's negligence. Since the jury answered "no" to interrogatory 2 (causation regarding Dr. Zakaib's negligence), the jury never got to interrogatory 3. Therefore, Dr. Zakaib argued, even if the contributory negligence instructions were improperly given, the error was harmless. We disagree.
During his closing argument to the jury, Dr. Zakaib's counsel paraphrased the instructions on contributory negligence to be given by the court. He then argued that Keomaka was himself negligent not only by failing to read the consent form before signing it, but also by (1) causing the infection to his leg by "dirty bandages, dirt on his leg," Transcript, Vol. 38 at 53, and (2) starting the whole incident when "Keomaka fell off the ladder." Id. at 54. We are not convinced that such argument and the improper contributory negligence instruction did not prejudice Keomaka's case.
VI. Conclusion
"Erroneous instructions are presumptively harmful and are a ground for reversal unless it affirmatively appears from the record as a whole that the error was not prejudicial." Turner v. Willis , 59 Haw. 319, 326, 582 P.2d 710, 715 (1978). Upon a review of the entire record, we conclude that the giving of improper jury instructions on superseding cause and contributory negligence was prejudicial to Keomaka. We therefore vacate the judgment and remand the case for a new trial.
Judgment vacated and case remanded for a new trial.
Disposition
Judgment vacated and case remanded for a new trial.
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