Faye Fletcher appeals the circuit court's granting of a directed verdict in favor of the Medical University of South Carolina (MUSC) on her claims for medical malpractice. We affirm in part, reverse in part, and remand.
Fletcher suffered from a blockage in the artery leading to her left arm. As a result, she was experiencing dizziness and numbness in the arm. Fletcher had seen Dr. Bruce Elliott about this issue, and he ordered some tests suspecting that a subclavian bypass could alleviate the problem. When the test results were received, Dr. Thomas Brothers, Dr. Elliott's partner, was in their Beaufort clinic where Fletcher was seen. Dr. Brothers testified he discussed the surgery with Fletcher although he could not specifically recall the content of that discussion. Fletcher scheduled her surgery so that it did not conflict with her work schedule and that resulted in Dr. Brothers performing the operation. Fletcher had a preoperative appointment at which time she spoke with a nurse practitioner and the anesthesiologist. She testified she was never warned of the risks associated with the procedure. Fletcher underwent the surgery on October 28, 1999. Dr. Gloria Rios, a surgical resident, assisted.
Upon returning home, Fletcher experienced significant bloating, discomfort, and shortness of breath. After two days, she went to the area emergency room where it was discovered that chylothorax was leaking into her pleural cavity and her diaphragm was not functioning properly. One treating physician indicated these problems were likely a result of her recent surgery in which damage to the thoracic artery and phrenic nerve are possible complications. Fletcher was treated and did make improvements although she still suffers from significant fatigue that she testified she did not experience prior to the surgery.
Fletcher brought this medical malpractice claim against MUSC alleging Dr. Brothers and Dr. Rios were negligent in
"A directed verdict should be granted where the evidence raises no issue for the jury as to the defendant's liability." Guffey v. Columbia/Colleton Reg'l Hosp., Inc., 364 S.C. 158, 163, 612 S.E.2d 695, 697 (2005). On review, an appellate court will affirm the granting of a directed verdict in favor of the defendant when there is no evidence on any one element of the alleged cause of action. Id. "In a medical malpractice action, the plaintiff must establish proximate cause as well as the negligence of the physician." Id.
Fletcher argues the circuit court erred in granting MUSC's directed verdict motion when Dr. Wood opined Dr. Brothers and Dr. Rios deviated from the standard of care in performing her surgery. We disagree.
In a medical malpractice action the plaintiff must establish "(1) `the generally recognized practices and procedures which would be exercised by competent practitioners in a defendant doctor's field of medicine under the same or similar circumstances,' and (2) a departure by the defendant
In the present case, Dr. Wood testified the standard of care in a subclavian bypass surgery is to preserve the phrenic nerve and thoracic duct. With respect to MUSC's deviation from the standard of care, he opined:
However, Dr. Wood testified on cross-examination that complications such as trauma to the phrenic nerve and damage to the thoracic duct could have occurred during this procedure even in the absence of any surgical negligence. He also testified:
Essentially, Fletcher asks us to conclude that the occurrence of a complication is itself evidence of negligence. However, South Carolina does not recognize the doctrine of res ipsa loquitur. Snow v. City of Columbia, 305 S.C. 544, 555 n. 7, 409 S.E.2d 797, 803 n. 7 (Ct.App.1991) ("In an action for negligence, the plaintiff must prove by direct or circumstantial evidence that the defendant did not exercise reasonable care. South Carolina's rejection of res ipsa loquitur is consistent with its general adherence to fault based liability in tort."). Simply no evidence establishes how Dr. Brothers or Dr. Rios deviated from the standard of care. Unfortunately,
Bowie v. Hearn, 292 S.C. 223, 355 S.E.2d 550 (Ct.App.1987) (Bowie I), addresses this very point. This case was reversed based on the particular facts presented, but the reasoning employed by the court of appeals is instructive. Bowie sued the physician who delivered him via cesarean section because he was cut on the cheek during the procedure, resulting in a scar. Id. at 224-25, 355 S.E.2d at 551. Bowie's expert testified the standard of care required the physician not to cut the baby. Id. at 226, 355 S.E.2d at 552. In analyzing the sufficiency of this testimony, the court alluded to another oft-cited medical malpractice case and stated:
Id. at 227, 355 S.E.2d at 552.
The analysis in Bowie I is precisely on point with this case, and we discern no factual basis that would cause the reasoning in that case to be inapplicable to the facts presented here.
Fletcher also contends the circuit court erred in granting MUSC's directed verdict motion with respect to her informed consent claim. We agree.
Although the circuit court's decision rested on its conclusion that Fletcher failed to present any evidence regarding proximate cause, we will address the elements of duty and breach first as they are preconditions to a finding of proximate cause, and MUSC raises them as additional sustaining grounds.
Under the doctrine of informed consent, a physician has a duty to disclose "(1) the diagnosis, (2) the general nature of the contemplated procedure, (3) the material risks involved in the procedure, (4) the probability of success associated with the procedure, (5) the prognosis if the procedure is not carried out, and (6) the existence of any alternatives to the procedure." Hook v. Rothstein, 281 S.C. 541, 547, 316 S.E.2d 690, 694-95 (Ct.App.1984). Because the question of whether a physician has acted unreasonably often involves the exercise of medical judgment in most cases, expert medical testimony is necessary to establish negligence in failing to adequately disclose the information necessary for a patient to give informed consent. Id. at 551, 316 S.E.2d at 697. "Indeed, our [s]upreme [c]ourt has held that in any `area beyond the realm of ordinary lay knowledge, expert testimony will usually be necessary to establish both the standard of care and the defendant's departure therefrom.'" Id. (quoting Kemmerlin v. Wingate, 274 S.C. 62, 65, 261 S.E.2d 50, 51 (1979)).
In the instant case, Fletcher provided a modicum of expert testimony that MUSC's agents deviated from the accepted
The primary expert testimony on this point was proffered testimony from MUSC's expert, Dr. Appleby. Over the course of several pages of testimony, including references to his deposition, Dr. Appleby testified a physician should discuss risks with his patient. He further testified he considered damage to the phrenic nerve and thoracic duct to be risks of this procedure.
With respect to whether the failure to inform Fletcher of these particular risks was a deviation from the standard of care, Dr. Appleby stated:
On a directed verdict motion, we are to view the evidence presented in the light most favorable to the nonmoving party. See J.T. Baggerly v. CSX Transp., Inc., 370 S.C. 362, 368, 635 S.E.2d 97, 100 (2006) ("When reviewing the grant of a directed verdict, the evidence and all reasonable inferences therefrom must be viewed in the light most favorable to the party against whom the verdict was directed."). The testimony regarding the standard of care and any deviation in this case is equivocal. Nevertheless, Fletcher presented some evidence the standard of care is to inform a patient of potential damage to the thoracic duct and phrenic nerve and that to fail to do so is a deviation from that standard.
Having determined Fletcher presented at least some evidence establishing the first two elements of her claim, the standard of care (duty) and deviation from it (negligence), we move to the third and final element in any negligence claim, proximate cause. We disagree with the circuit court's reasoning that because Fletcher failed to present expert testimony that the lack of information proximately caused her injuries, she could not succeed in her claim.
In Hook, the court rejected the subjective test and adopted the objective, reasonable man test for discerning proximate cause. The court cited a Maryland case to support its decision.
Hook, 281 S.C. at 565, 316 S.E.2d at 705 (quoting Sard v. Hardy, 281 Md. 432, 379 A.2d 1014, 1025 (1977)).
While Hook adopted the objective test, nothing indicates the reasonable man test requires expert testimony. As in most cases, the determination of whether a reasonable person, knowing the risks, would have had the procedure is a question left to the fact-finder. This notion is supported by the cases Hook relies upon in adopting the objective test. See Canterbury v. Spence, 464 F.2d 772, 791 (C.A.D.C.1972) (stating the objective test requires the fact-finder to interpret the plaintiff's testimony through the filter of reasonableness in determining the proximate cause issue); Woolley v. Henderson, 418 A.2d 1123, 1132 (Me.1980) (agreeing with trial court's instruction to the jury to employ the objective standard in considering proximate cause); Sard, 379 A.2d at 1026 (stating the plaintiff's testimony is relevant although not determinative and alluding to no expert testimony regarding causation).
Fletcher's own testimony on the matter at least raises some issue with respect to the reasonableness of proceeding with the surgery having known of the risks involved.
Fletcher's testimony is not determinative under an objective standard, but it is some evidence that proceeding with the surgery was unreasonable in light of the risks and potential outcome. The jurors could weigh this evidence against their own experiences and in light of Dr. Appleby's testimony to arrive at a conclusion concerning what a reasonable person would have done under the circumstances.
We affirm the circuit court's granting of a directed verdict on Fletcher's claim of medical malpractice in performance of her surgery. We reverse the granting of a directed verdict with respect to her informed consent claim and remand that issue for a new trial. Accordingly, the decision of the circuit court is