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Potter v. Wisner9/12/1991
This is an appeal from a directed verdict in favor of the defendant in a medical malpractice case. The sole issue is whether the testimony of the defendant, H. Kern Wisner, M.D., was sufficient to establish the standard of care in disclosing the possible risks connected with the operation. For the reasons which follow, we hold that the testimony was sufficient to submit the issue to the jury for determination and we therefore reverse and remand the case for further proceedings.
FACTS
The plaintiff (Potter), suffered from painful lumps in both breasts, a condition diagnosed as fibrocystic disease. She went to the defendant (Dr. Wisner), a plastic surgeon , for a bilateral mastectomy with reconstruction and implants. Dr. Wisner's plan was to remove as much of the breast tissue as possible and to rebuild the breasts using prosthesis, a procedure medically referred to as bilateral subcutaneous mastectomy with subpectoral augmentation and reconstruction. After the surgery, Potter had complications with her left breast. The breast blackened and the nipple eventually scabbed off. She left Dr. Wisner's care after he recommended further reconstruction by "borrowing" some of the right nipple. Potter sued Dr. Wisner for medical malpractice. Eventually, Potter dropped all allegations except her claim that Dr. Wisner failed in his duty to properly disclose the risks associated with the operation and to obtain her informed consent to the surgery.
PROCEDURAL HISTORY
Potter proceeded first before a Medical Liability Review Panel pursuant to A.R.S. ยง 12-567. The panel found in favor of Potter and concluded that the defendant had fallen below the standard of care by failing to obtain plaintiff's informed consent.
At the close of the plaintiff's evidence, the defendant moved for a directed verdict based on plaintiff's failure to establish the standard of care in disclosing the potential hazards of the operation. The motion was taken under advisement and argument continued the next day. The judge again continued the "hearing," and the plaintiff moved to reopen her case to elicit testimony from the defendant and one of his witnesses, Dr. Wingate. The court granted the motion to reopen, allowing examination of the defendant only. After the defendant's testimony, the court granted the motion for directed verdict. The court signed a formal order granting the motion for directed verdict "on the issues of (1) informed consent and, (2) res ipsa loquitur and, (3) standard of care in performance of surgery, and (4) standard of care in the management of Mrs. Potter post-operatively . . . ." The plaintiff filed a motion for reconsideration and motion for new trial both of which were denied.
ISSUES
This appeal raises two issues:
1. Whether the plaintiff in a medical malpractice case can meet her burden of proof of the standard of care through the defendant doctor's own testimony.
2. If so, whether the defendant doctor's testimony in this case was sufficient to establish the standard of care.
Discussion
We must decide whether the defendant doctor's own testimony regarding what he believed must be divulged to the patient was sufficient to establish the standard of care for obtaining informed consent for this type of medical procedure.
A motion for directed verdict should be granted only when, without weighing the credibility of the witnesses, there is no difference of opinion over the factual issues in controversy. Orme School v. Reeves, 166 Ariz. 301, 308, 802 P.2d 1000, 1007 (1990). Orme
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