Charles Murray Haupt v. Udaya Kumar, M.D.
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ARKANSAS COURT OF APPEALS
DIVISION III
No. CA08-229
Opinion Delivered
CHARLES MURRAY HAUPT
APPELLANT
October 29, 2008
APPEAL FROM THE PULASKI COUNTY
CIRCUIT COURT, SEVENTH DIVISION
[NO. CV-2003-5543]
V.
HONORABLE BARRY SIMS, JUDGE
UDAYA KUMAR, M.D.
REVERSED AND REMANDED
APPELLEE
JOHN MAUZY PITTMAN, Chief Judge
VERDICT & FINDINGS – M EDICAL M ALPRACTICE – DIRECTED VERDICT WAS ERROR – APPELLANT DID NOT
CONSENT TO PROCEDURE.– The trial court erred in granting a directed verdict to the appellee
physician in this medical malpractice case where there was evidence that appellant did not consent
to the procedure that was performed; in light of the evidence that appellant was informed that the
appellee physician would not be comfortable performing the proposed surgery without a general
surgeon in attendance; that appellee wrote a letter affirming that a general surgeon would in fact be
in attendance; that a general surgeon was specifically named in the consent that appellant executed;
and the expert testimony that it was good medical practice for a urologist to associate a general
surgeon to assist in such circumstances, it was for the jury to decide whether a reasonable and
prudent patient would have withheld consent to the surgery in the absence of the misrepresentation
that a general surgeon would be present.
The Brad Hendricks Law Firm, by: Lamar Porter; and James Swindoll, for appellant.
Anderson, Murphy & Hopk ins, LLP, by: Overton S. Anderson and Brett D. Watson, for
appellee.
This is an appeal from a directed verdict granted to the defendant-appellee
in a medical malpractice case.
physician
The plaintiff-appellant patient asserts that the trial court erred
in granting a directed verdict because he had established a prima facie case and because
material questions of fact remained for the jury with respect to negligence and proximate
cause. We agree, and we reverse and remand.
In determining whether a directed verdict was properly granted, we view the evidence
in the light most favorable to the party against whom the verdict was sought and give it its
highest probative value, taking into account all reasonable inferences deducible from it.
Mankey v. Wal-Mart Stores, Inc., 314 Ark. 14, 858 S.W.2d 85 (1993); Lytle v. Wal-Mart
Stores, Inc., 309 Ark. 139, 827 S.W.2d 652 (1992). A motion for a directed verdict should
be granted only if there is no substantial evidence to support a jury verdict. Boykin v. Mr. Tidy
Car Wash, Inc., 294 Ark. 182, 741 S.W.2d 270 (1987). Where the evidence is such that
fair-minded persons might reach different conclusions, then a jury question is presented, and
the directed verdict should be reversed. Mankey v. Wal-Mart Stores, Inc., supra.
Appellant presented as a patient to appellee, Dr. Kumar, a urologist.
Dr. Kumar
diagnosed appellant as suffering from a fistula, as well as communication between the bladder
and the bowel resulting from multiple diverticula in the sigmoid colon where it overlapped the
bladder.
Dr. Kumar recommended that appellant undergo surgery and anticipated that it would
be necessary to remove part of the bowel and possibly to perform a colostomy during the
procedure. There was evidence that Dr. Kumar also told appellant that, as a urologist, he would
not be comfortable performing the procedure without the assistance of a general surgeon, and
that a general surgeon would therefore perform the bowel portion of the surgery and would be
present in the operating theater during the entire procedure.
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Dr. Kumar then wrote a letter to
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appellant’s family doctor stating that he was enlisting the help of general surgery colleagues
to assist in appellant’s surgery.
At Dr. Kumar’s direction, a hospital resident obtained a
consent form from appellant that expressly authorized Drs. Kumar and Heaton to perform the
surgery. Dr. Heaton was a general surgeon at the facility, but no effort was made to contact
him; therefore, he was not present when the surgery was performed, and no other general
surgeon helped with the surgery.
During the surgery, appellant suffered an injury to his ureter as the result of an
obstruction. A CT scan showed that a surgical clip had been left in his body posterior to the
ureter.
Dr. Kumar admitted at trial that the injury was probably iatrogenic, i.e., caused by a
physician, and that the surgical clip was a possible cause of the obstruction.
Subsequent
surgical attempts to repair appellant’s injured ureter failed, and ultimately it was necessary to
remove the kidney attached to that ureter and transplant it to the other side of appellant’s body
to retain its functionality.
The pivotal issue in this case is whether appellant consented to the procedure that was
performed. Clearly, there was evidence that he did not. Appellant testified that he was assured
by Dr. Kumar that a board-certified surgeon would assist him in performing abdominal surgery
on appellant. The surgeon who was to assist Dr. Kumar was named on the consent sheet that
appellant signed. It is uncontested that Dr. Kumar did not contact the named surgeon to request
that he assist in the procedure, and there was evidence to support a jury finding that Dr. Kumar
completed the entire surgery himself; that appellant was injured as the result of Dr. Kumar’s
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performance of the surgery; and that appellant required extensive medical treatment, including
an auto-transplant of one of his kidneys, as a result of an iatrogenic injury during the surgery.
Dr. Kumar raises questions concerning the certainty of the expert medical testimony
regarding the standard of care, but this is a chimera. In addition to the testimony of appellant’s
expert that consent based on false and misleading information violated the standard of care, Dr.
Kumar himself testified that a consent obtained under the facts and circumstances alleged by
the appellant would be invalid, and that a procedure performed without a valid consent would
be outside the standard of care. Dr. Kumar also argues that there was no proof that the failure
to employ a general surgeon to assist increased the likelihood of the injury that appellant
sustained, but this argument is based on the presumption that appellant would have had the
surgery performed in any event.
We note that there was testimony that appellant’s condition
was not immediately life threatening and that many people choose to endure the condition for
many years before opting for surgery, and appellant testified positively that he would not have
had the surgery had he known that no general surgeon would be in attendance. Arkansas Code
Annotated section 16-114-206(b)(1) (Repl. 2006) provides in pertinent part:
[W]hen the plaintiff claims that a medical care provider failed to supply adequate
information to obtain the informed consent of the injured person, the plaintiff
shall have the burden of proving that the treatment, procedure, or surgery was
performed in other than an emergency situation and that the medical care
provider did not supply that type of information regarding the treatment,
procedure, or surgery as would customarily have been given to a patient in the
position of the injured person or other persons authorized to give consent for
such a patient by other medical care providers with similar training and
experience at the time of the treatment, procedure, or surgery in the locality in
which the medical care provider practices or in a similar locality.
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Subsection (b)(2) of that statute states in pertinent part:
In determining whether the plaintiff has satisfied the requirements of
subdivision (b)(1) of this section, the following matters shall also be considered
as material issues:
(A) Whether a person of ordinary intelligence and awareness in
a position similar to that of the injured person or persons giving
consent on his or her behalf could reasonably be expected to
know of the risks or hazards inherent in such treatment,
procedure, or surgery;
(B) Whether the injured party or the person giving consent on
his or her behalf knew of the risks or hazards inherent in such
treatment, procedure, or surgery;
(C) Whether the injured party would have undergone the
treatment, procedure, or surgery regardless of the risk involved
or whether he or she did not wish to be informed thereof . . . .
Lack of informed consent may be the proximate cause of an injury inflicted during
surgery even where the patient does not testify positively that he would not have undergone the
procedure had he been adequately informed. See, e.g., Aronson v. Harriman, 321 Ark. 359,
901 S.W.2d 832 (1995). In Aronson, the supreme court adopted an objective standard for
determining the effect of proximate cause in medical malpractice actions based on allegations
that informed consent was lacking.
Under this objective standard, causation is evaluated in
terms of whether a reasonable and prudent patient in the plaintiff’s position would have
withheld consent to the treatment or procedure had the material risks been disclosed. Id.
In light of the evidence that appellant was informed that Dr. Kumar would not be
comfortable performing the proposed surgery without a general surgeon in attendance; that Dr.
Kumar wrote a letter affirming that a general surgeon would in fact be in attendance;
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that a
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general surgeon was specifically named in the consent that appellant executed; and the expert
testimony that it was good medical practice for a urologist to associate a general surgeon to
assist in such circumstances, we hold that it was for the jury to decide whether a reasonable
and prudent patient would have withheld consent to the surgery in the absence of
the
misrepresentation that a general surgeon would be present.
Reversed and remanded.
BAKER and HUNT , JJ., agree.
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