SHIRLEY COULTER AND THOMAS COULTER V. J. KENT THOMAS, M.D. AND LOUISVILLE S.C., LTD.
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AMENDED:
December
29,
2000
RENDERED: DECEMBER 21,200O
TO BE PUBLISHED
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1 998-SC-000
SHIRLEY COULTER AND
THOMAS COULTER
V.
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
1997-CA-0856
JEFFERSON CIRCUIT COURT NO. 1992-Cl-06917
J. KENT THOMAS, M.D. AND
LOUISVILLE S.C., LTD.
APPELLEES
OPINION OF THE COURT BY JUSTICE STUMBO
REVERSING AND REMANDING
We granted discretionary review in this personal injury case to determine what is
required to effectively revoke consent to a medical procedure in progress and whether a
jury should be instructed on the claim of battery where the defendant refuses to comply
with a patient’s request that treatment stop.
I. FACTS
Shirley Coulter, Appellant, consulted ophthalmologist Dr. Kent Thomas,
Appellee, for a surgical procedure to remove a mass on Coulter’s lower eyelid in early
1992. The outpatient surgery was to be performed at the SurgeCenter
in Louisville.
During the procedure, Pat Bowling, a circulating nurse, placed an automatic blood
pressure cuff (ABPC) on Coulter’s arm in an effort to monitor her blood pressure at
intervals during the procedure. The ABPC automatically inflates and deflates in cycles
scheduled by the operator, and the operator may also trigger an unscheduled cycle.
The first time the ABPC inflated, Coulter testified that she felt extreme pain, began to
sweat and tremble, and demanded the cuff to be removed. She claims that, almost
immediately, the ABPC began to inflate for the second time, and she again cried out for
someone to remove the cuff.’ It was not until several minutes, and another inflation
later, that the cuff was removed. The surgery continued without the benefit of the
ABPC.
.The Appellees offered testimony that complaints of discomfort associated with
cuff inflations are very common, and thus did not indicate to them Coulter was being
injured. Coulter claims they did not remove the cuff because she had been labeled as
a “complainer.” Appellees detail the complaints made by Coulter in their brief. They
claim she protested that the room was too cold, the EKG pads were cold, the anesthetic
injection was uncomfortable, etc.
Coulter testified that she left the SurgeCenter in severe pain, caused by the
blood pressure cuff. Dr. Ergadon Atasoy, who operated on Coulter for a surgical
pronator teres release of her arm, discovered damage to her right arm (the arm to
which the ABPC was applied).
He found that the blood vessels in her arm were
hemorrhaging, and blood had collected around her median nerve causing severe and
* The Appellees claim the ABPC only inflated a total of two times, disputing the
second immediate inflation described by Coulter. However, Nurse Bowling testified that
she may have triggered another cycle, (which would have been the second cycle to
which Coulter refers). Bowling testified that such a procedure is normal if the nurse
believes the reading is unreliable. Bowling states that she does not remember
triggering an unscheduled reading in this case, although she did say that she may have
done so.
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permanent injury to the arm. Appellees point out that this hemorrhaging and collection
of blood was found below her elbow. The ABPC was, of course, applied to her arm
above the elbow.* Coulter brought a medical malpractice suit against the SurgeCenter,
and Dr. Thomas, in which she requested a jury instruction on the claim of battery,
arguing that any initial consent to use the cuff was expressly revoked when she
demanded the ABPC to be removed. The trial court declined to give the instruction,
and the jury returned a verdict for the defendants. The Court of Appeals affirmed, and
the appellants sought discretionary review in this Court. We granted review to address
the issue of revocation of consent and the battery claim.
II. INFORMED CONSENT
Appellant claims her consent was not informed because she was not notified of
the fact that none of the staff had read the instructions for operating the ABPC, and
thus were not aware that the machine could cause injury. We do not address this issue
because we find Ms. Coulter’s consent could have been revoked, whether it was
informed or not.
Ill. REVOCATION OF CONSENT
Appellant argues that the trial court should have given an instruction to the jury
on the claim of battery. However, “lack of consent is an essential element of battery.”
Vitale v. Henchev, Ky., 24 S.W.3d
651 (2000). Since we have disposed of Appellant’s
lack of informed consent claim, Appellant must prove that her consent was effectively
revoked. An indirect look at this issue is found in DeGrella. bv and throuah Parent v.
Elston, Ky. 858 S.W. 2d 698, 703 (1993) wherein this Court considered the right of a
*We make no finding on this issue, as causation and damages are not issues
before us, and will be resolved in the trial court.
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i
competent person to forego medical treatment, either by refusal or withdrawal of same.
We acknowledged the common law right, but focused on the legislative codification
found in KRS 311.621(8), (formerly KRS 311.622(l). There, we were primarily
concerned with what proof of the patient’s desires to forego medical treatment entirely
under certain circumstances was required when the patient was no longer capable of
voicing those desires personally.
In the case at bar, the patient is and was present to both voice the objections
and give testimony about attempt to revoke. There is no case law directly on point in
Kentucky regarding this issue, therefore we have looked to other jurisdictions to
develop a test to guide the trial courts in determining w,hether sufficient proof has been
presented to warrant submission of the issue to a jury.
In Mims v. Boland, Ga., 138 S.E.2d 902, 905 (1964), the plaintiff claimed she
revoked her consent to a barium enema which was administered despite her
revocation. In reaching its conclusions, the Court of Appeals of Georgia delineated a
test which we adopt:
To constitute an effective withdrawal of consent as a matter of
law[,] after treatment or examination is in progress[,] commensurate to
subject medical practitioners to liability for assault and battery if treatment
or examination is continued, two distinct things are required: (1) The
patient must act or use language which can be subject to no other
inference and which must be unquestioned responses from a clear and
rational mind. These actions and utterances of the patient must be such
as to leave no room for doubt in the minds of reasonable men that in view
of all the circumstances consent was actually withdrawn. (2) When
medical treatments or examinations occurring with the patient’s consent
are proceeding in a manner requiring bodily contact by the physician with
the patient and consent to the contact is revoked, it must be medically
feasible for the doctor to desist in the treatment or examination at that
point without the cessation being detrimental to the patient’s health or life
from a medical viewpoint.
u. at 907. We believe that the jury could find from these factors that Coulter revoked
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her consent regarding use of the blood pressure cuff. First, she testified that she used
very specific language in demanding that the cuff be removed. She claims that she
stated, “Take it off. I can’t stand it,” after the first inflation. Dr. Thomas testified that
she merely complained of the tightness of the cuff. Regardless, it is up to the jury to
decide whom to believe. If they choose to believe Appellant, language such as “take it
off” could satisfy the first prong of the test. To distinguish Mims, the plaintiff there
merely expressed a desire to insert the barium tube herself. L& at 908. There was no
testimony presented in that case that the plaintiff ever clearly and unequivocally asked
the person administering the enema to remove it from her body; there were merely
complaints of discomfort. As such, we find that the Appellant could satisfy the first
element of this test.
There is no question the plaintiff could easily prove the second prong, as the cuff
was actually removed during the surgery without any sort of complication. Therefore,
we hold that, on remand, the jury should be allowed to determine if Appellant’s consent
was effectively revoked.
IV. BATTERY
The trial court also erred in not allowing the tendered battery instruction to the
jury. In Vitale v. Henchev, Ky., 24 S.W. 3d 651 (2000) we were faced with the question
of whether the plaintiff was required to prove a physician breached the standard of
care, a negligence burden, by substituting surgeons without a patient’s consent. In
reaching that such a burden was not required, we drew an important distinction:
[A]s a result of Holton and the Kentucky Informed Consent Statute
an action for a physician’s failure to disclose a risk or hazard of a
proposed treatment orprocedure is now undisputedly one of negligence
and brings into question professional standards of care. However, the
physicians, as did the trial court, confused the issue of informed consent,
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i.e., the failure to disclose a risk or hazard of the surgeries, with the issue
of no consent, or whether any valid consent was obtained prior to [the
doctor’s] performance of the surgeries. Holton and the Kentucky Informed
Consent Statute do not apply when surgery is performed without the
patient’s consent . . . .
u. Here, since we have disposed of the claim of informed consent, we have likewise
disposed of the idea that Appellant is required to bring her claim under a theory of
negligence. As stated above, this is a case about revocation of consent, and therefore,
pursuant to our recent decision in Vitale, it is proper for Appellant to bring a claim for
battery. Vitale v. Henchev, Ky., 24 S.W. 3d 651 (2000) (declaring “Kentucky recognizes
an action for battery when a’ physician performs an operation without the consent of the
patient.“) We find that the jury should have been instructed on the intentional tort of
battery.
The judgment of the Court of Appeals is reversed, and we remand this case for
trial on the battery claim consistent with this opinion.
Lambert, C.J.; Cooper, Graves, and Keller, JJ., concur. Wtntersheimer, J.,
dissents by separate opinion, with Johnstone, J., joining that dissent.
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.
COUNSEL FOR APPELLANTS:
COUNSEL FOR APPELLEES:
Eli J. George, Jr.
1907 Bardstown Road
Louisville, KY 40205
Susan D. Phillips
William P Swain
Phillips Parker Orberson & Moore, PLC
716 West Man Street, Suite 300
Louisville, KY 40202
Douglass Farnsley
Stites & Harbison
1800 Capitol Holding Center
400 W. Market Street
Louisville, KY 40202
Catherine Murr Young
Stites & Harbison
400 West Market Street
Suite 1800
Louisville, KY 40202-3352
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I .
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RENDERED: DECEMBER 21,200O
TO BE PUBLISHED
4!3lqmme thfrt of 3lbsmkp
1998-SC-0795DG
SHIRLEY COULTER AND
THOMAS COULTER
APPELLANTS
ON REVIEW FROM COURT OF APPEALS
1997-CA-0856
JEFFERSON CIRCUIT COURT NO. 1992-Cl-06917
v.
J. KENT THOMAS, M.D. AND
LOUISVILLE S.C., LTD.
APPELLEES
DISSENTING OPINION BY JUSTICE WINTERSHEIMER
I must respectfully dissent from the majority opinion because the jury was
properly instructed only on negligence as distinguished from battery. The jury verdict
was proper.
The testimony of nurse Bowling was that Shirley Coulter complained during the
first inflation that the automatic blood pressure cuff was “tight.” Dr. Thomas also
testified that the complaint was that the cuff was “tight” or “very tight.” On the contrary,
Mrs. Coulter testified that after the first inflation, she stated, “Take it off. I can’t stand
it.” Nurse Bowling advised Mrs. Coulter that the blood pressure cuff needed to remain
on her arm and that the procedure would soon be completed. The nurse further
testified that she did not remove the cuff because complaints of discomfort associated
with cuff inflations are not unusual and she had no indication that the patient was being
injured by the cuff. Dr. Thomas also testified that such complaints were very common
and that it was not severe. When the automatic cuff took a second reading during
surgery the patient again complained of tightness and said, “Take it off. I can’t stand it.”
Both Dr. Thomas and nurse Bowling testified that it was at this time that they removed
the blood pressure cuff pursuant to the direction of the doctor. It should be recognized
that the patient was 53 years of age at the time of the surgery in 1992, that she was 5
feet 3 inches tall, weighed over 250 pounds and was then totally disabled by rheumatoid
arthritis. The evidence indicates that the patient suffered from a number of problems
with her right hand and arm. In addition, there was defense testimony that the median
nerve below her elbow had not been injured even indirectly by the blood pressure cuff.
The cuff had been applied to the upper arm. The patient had consented to the 15
minute procedure which involved the removal of a mass from her eyelid.
During trial, counsel questioned all the medical personnel present in the
operating room during the procedure about the statements that were made at that time.
Counsel sought to support the claim that the patient revoked consent to use the
automatic blood pressure cuff, however, the jury found against the patient on the
revocation of consent argument, evidently based on the testimony of the doctor and
nurse. The instructions given by the trial judge correctly related to negligence and not
to battery.
Certainly any party to civil litigation is entitled to have their theory of the case
submitted to the jury for its acceptance or rejection if there is any evidence to sustain it.
Farrinaton Motors v. Fidelitv & Casualtv Co., Ky., 303 S. W.2d 319 (1957). The circuit
judge did not abuse his discretion in any way in regard to the instructions given.
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I conclude that neither the complaints as the patient described them, nor as were
described by the medical personnel, constitutes a sufficient expression of revocation. I
would affirm the decision of the jury and the Court of Appeals.
Johnstone, J., joins in this dissent.
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1998-SC-0795DG
APPELLANTS
SHIRLEY COULTER AND
THOMAS COULTER
V.
ON REVIEW FROM COURT OF APPEALS
1997-CA-0856
JEFFERSON CIRCUIT COURT NO. 1992-Cl-06917
J. KENT THOMAS, M.D. AND
LOUISVILLE S.C., LTD.
APPELLEES
ORDER AMENDING OPINION
The To Be Published opinion rendered December 21, 2000, in the
above-styled case is hereby amended to the extent that page 7 has been replaced
with an amended page, attached hereto, in order to correct the designation of
counsel for the appellee, J. Kent Thomas, M.D. This amendment does not change
the holding of the opinion.
ENTERED: December 29, 2000
Chief Justice
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