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Murphy v. Berger6/21/2005
formed consent, and the Murphys do not appeal any decision of the trial court premised upon a lack of common law informed consent.
b. Statutory Informed Consent
The Murphys' claims on appeal strictly deal with the trial court's decision regarding the applicability of OCGA § 31-9-6.1. We agree with the trial court that this Code section is inapplicable in the present case.
OCGA § 31-9-6.1 sets forth specified categories of information that must be disclosed by medical care providers to their patients before they undergo certain specified surgical or diagnostic procedures. The statute explicitly applies only to any person who undergoes any surgical procedure under general anesthesia, spinal anesthesia, or major regional anesthesia or any person who undergoes an amniocentesis diagnostic procedure or a diagnostic procedure which involves the intravenous or intraductal injection of a contrast material.
The person must only consent to "such procedure" and be informed of numerous factors, all of which pertain to the surgical procedure. Further, to bring a cause of action under this section, the injury must have been proximately caused by the surgical or diagnostic procedure. It is important to note that the surgical or diagnostic procedure performed in this case is the cataract surgery, not the anesthetic injection.
Because OCGA § 31-9-6.1 is in derogation of the common law rule as it existed at the time of the incident in this case, it must be strictly construed and cannot be extended beyond its plain and explicit terms. "Thus, in situations not covered by the statute's language, the common law rule must still govern, as courts are without authority to impose disclosure requirements upon physicians in addition to those requirements already set forth by the General Assembly." Applying this standard, it follows that, regardless of Berger's alleged negligence at the time he rendered medical services to Thomas Murphy, the trial court correctly concluded that Berger was not under an affirmative obligation, either under statute or common law, to disclose any medical risks associated with the retrobulbar anesthetic injection because the cataract surgery was not performed under any of the three types of anesthesia specified by the statute.
The Murphys argue that OCGA § 31-9-6.1 applies because Thomas Murphy was under general anesthesia and under major regional anesthesia during his cataract surgery. We disagree. Despite some of the language and/or characterizations used by witnesses in this case, it is clear that the cataract surgery was not performed under general anesthesia, spinal anesthesia, or major regional anesthesia as required for application of the statute.
The Georgia Composite State Board of Medical Examiners, pursuant to authority delegated in OCGA § 31-9-6.1 (g), promulgated rules and regulations for the purpose of ensuring physician compliance with OCGA § 31-9-6.1. These rules are contained in the Georgia Administrative Code. In these rules, "general anesthesia" means "a state of unconsciousness and insensitivity to pain affecting the entire body which is produced by the administration of an intramuscular, intravenous or inhalant anesthetic." While Thomas Murphy may have received heavy sedation, there is no dispute that he was not under general anesthesia as defined by the Code. "Spinal anesthesia" is defined as "a state of insensitivity to pain which is produced by the temporary interruption of the sensory nerve conductivity of a major region of the body through the injection of an anesthetic into the subarachnoid space." There is no dispute that Thomas Murphy did not receive any anesthetic injection into the subarachnoid spa
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