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Smith v. Cotter4/30/1991
al cord paralysis or chronology.” Dr. Smith argues that this testimony was “no more than an inappropriate personal opinion” and that Dr. Knoernschild never actually testified that Dr. Smith was guilty of a “deviation from the standard of care.” In answer to this we would note that this was a bench trial, and the mere use of the work “think” by the expert does not place his expression of expert opinion into a category of conjecture or unreliability. Based upon the question he was responding to, the testimony was reasonably taken by the trial court as an expert opinion on what the standard of care is for a general surgeon performing a total thyroidectomy.
The Cotters argue that Dr. Smith's own admission at trial also tended to establish the standard of care in this case. When asked if “vocal cord paralysis is a significant risk that should be disclosed to a patient before undergoing a total thyroidectomy” Dr. Smith responded, “Yes.” It has been held in other jurisdictions that the expert testimony requirement may be met by relying on the testimony of the defendant himself. See Abbey v. Jackson, 483 A.2d 330, 333 (D.C.App. 1984) (citations omitted). The testimony of Dr. Smith with regard to what should have been disclosed was rightfully considered in conjunction with the expert testimony of Dr. Knoernschild in determining the standard of care; and we conclude that sufficient evidence was presented at
[107 Nev. 267, Page 274]
trial to establish a standard of care. The next question is whether substantial evidence was presented to indicate that Dr. Smith failed to inform Cotter of the risk of vocal cord paralysis and thereby deviated from the standard of care.
Dr. Smith's own records presented at trial indicate that he informed Cotter of various risks (“bleeding, infection, recurrent laryngeal nerve and parathyroid”), but no mention is made of vocal cord paralysis or impaired breathing. Dr. Smith testified that the implication of the note regarding recurrent laryngeal nerve “has to include vocal cord paralysis.” He went on to state specifically that vocal cord paralysis was discussed. Mr. Cotter on the other hand testified that prior to surgery Dr. Smith never mentioned the risk of permanently paralyzed vocal cords. Although conflicting evidence was presented with respect to the information given by Dr. Smith, there was sufficient evidence to support the trial court's finding that the doctor failed to inform Cotter of the risk of vocal cord paralysis. The trier of fact was in the best position to sort through the conflicting evidence, and its finding on this issue should not be disturbed.
Dr. Smith also contends that the element of proximate cause has not been established in this case. To establish proximate cause, first there must be a showing that the unrevealed risk which should have been revealed by the doctor actually materialized. Downer v. Veilleux, 322 A.2d 82, 92 (Me. 1974). In the instant case, the unrevealed risk was the risk of vocal cord paralysis and the consequent voice loss and breathing impairment. Although there is conflicting evidence, the district court found that Cotter's vocal cords were paralyzed. Accepting this finding of fact based upon conflicting evidence, the initial requirement for proving proximate cause is fulfilled.
Additionally, it must be shown that Cotter would have refused the surgery if he had been informed of the risk of permanent vocal cord paralysis. Id. The plaintiff's assertion that he or she would have refused the treatment must be reasonable under the circumstances. In determining reasonableness, the court may
[107 Nev. 267, Page 275]
consider the testimony of the patient
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