Day on Torts
Here is an unusual case out of California – a unique application of the "reasonable person test" when applying the causation standard in an informed consent case.
Wilson was paralyzed from spinal surgery for scoliosis, rendering him a paraplegic. He was wheelchair bound and needed to use his arms and shoulders to get in and out of the wheelchair. Some five years ago Wilson had a stroke, and thereafter developed adhesive capsulitis in his shoulder. His doctor referred him to a chiropractor, who recommended manipulation under anesthesia. Wilson asked his doctor questions about the risk associated with the procedure, and allegedly was told by his doctor that the only risk was an infection secondary to an injection that was part of the procedure. His doctor was present at the procedure performed by the chiropractor. Wilson suffered a fractured shoulder and a torn rotator cuff during the procedure. As a result, he had to undergo surgery to repair the damage.
Wilson sued the doctor, the chiropractor and others, saying that he never gave informed consent to the procedure. The case went to trial against the doctor, but the trial judge dismissed this case on several grounds, including the failure of Wilson to prove causation in the informed case.
In California (as in Tennessee), "causation must be established by an objective test: that is, the plaintiff must show that reasonable ‘prudent person[s]’ in the patient’s position would decline the procedure if they knew all significant perils."
The Court of Appeals reversed the dismissal of the action, saying that Wilson "must show that a reasonable, prudent paraplegic, who had been largely paralyzed by a prior surgery and was dependent upon the use of his arms and shoulders for any mobility at all, and who, at that point, had already achieved about a 20 percent improvement in his adhesive capsulitis condition based on physical therapy alone, would have declined the procedure if informed that it could result in a torn rotator cuff and a fractured bone. There was sufficient evidence for a jury to conclude that, under the circumstances, a reasonable, prudent paraplegic would indeed have passed up the opportunity."
The case is Wilson v. Merritt, No. G035929 (Cal. App. 4th Dis. 9/11/06). Read it here.