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Smith v. Cotter4/30/1991
requires the surgeon to inform the patient of the risks of surgical injury to the recurrent laryngeal nerve and of permanent vocal cord paralysis and airway obstruction. There is ample evidence to support these findings.
The trial court also specifically found that “Dr. Smith acted negligently by failing to comply with the requirements of NRS
[107 Nev. 267, Page 271]
41A.110 and NRS 449.710. ” On its face, NRS 41A.110 requires nothing of a doctor. The statute states only that if its provision are followed, consent has been conclusively obtained; the statute does not state that valid consent can only be obtained by following its provisions. Based upon a plain reading of NRS 41A.110, the district court's finding that the statute sets out “requirements” for a doctor to follow is incorrect; nevertheless, the district court's conclusion that the doctor failed to inform Cotter about the surgery in a proper professional manner is justified under the professional standard of care discussed below.
With respect to NRS 449.710, known as the “patient's bill of rights,” Dr. Smith correctly points out that the patient's bill of rights does not require written consent. Dr. Smith argues that the district court held him in violation of this statute because he did
[107 Nev. 267, Page 272]
not get consent in writing. This is not an accurate reading of the lower court's findings. The district court found that the risks of nerve paralysis, permanent vocal cord paralysis and permanent airway obstruction are “significant medical risks” as that term is used in NRS 449.710(6). The district court correctly concluded that Dr. Smith failed to comply with the patient's bill of rights, not by failing to get written consent, but by failing to inform Cotter of these “significant medical risks” prior to obtaining consent.
The standard relating to informed consent that has been adopted by a majority of jurisdictions, including Nevada, is a “professional” standard under which a doctor has a duty to disclose information that a reasonable practitioner in the same field of practice would disclose. Karp v. Cooley, 493 F.2d 408, 420 (5th Cir. 1974) (applying Texas law); Guebard v. Jabaay, 452 N.E.2d 751, 755 (Ill.App. 1983). Generally, under the majority rule the professional standard must be determined by expert testimony regarding the custom and practice of the particular field of medical practice. Di Filippo v. Preston, 173 A.2d 333, 339 (Del. 1961); Wooley v. Henderson, 418 A.2d 1123, 1130 (Me. 1980). This court has specifically adopted the “professional,” standard stating that “the physician's duty to disclose is measured by a professional medical standard, which the plaintiff must establish with expert testimony.” Beattie v. Thomas, 99 Nev. 579, 584, 668 P.2d 268, 271 (1983). In following the rule in Beattie this court recently declared that a lack of informed consent must be demonstrated through expert testimony based upon NRS 41A.100, which requires expert testimony to prove negligence in medical malpractice actions. Brown v. Capanna, 105 Nev. 665, 669, 782 P.2d 1299, 1302 (1989).
[107 Nev. 267, Page 273]
The only expert who testified on behalf of the Cotters on the issue of informed consent was Dr. Knoernschild. When asked his opinion, “based upon reasonable medical probability,” as to the proper information to be given by a general board certified surgeon preparing to perform a thyroidectomy, Dr. Knoernschild testified that he “thinks” that the surgeon should “inform the patient of the most hazardous complication of a thyroidectomy: that is, the division of one or both of the recurrent laryngeal nerves and the bilateral voc
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