McPherson v. Ellis , 53 N.C. App. 476 ( 1981 )

WEBB, Judge.

The appellate courts of this state have dealt with the duty of a physician to properly inform a patient of the risks of a surgical procedure in several cases. See Starnes v. Taylor, 272 N.C. 386, 158 S.E. 2d 339 (1968); Brigham v. Hicks, 44 N.C. App. 152, 260 S.E. 2d 435 (1979); Butler v. Berkeley, 25 N.C. App. 325, 213 S.E. 2d 571 (1975). If there is some danger peculiar to a surgical procedure of which the patient is not aware, it is the duty of the physician to warn the patient of this danger. If the likelihood of some adverse result is relatively slight, much must be left to the discretion of the physician or surgeon in determining what he should tell his patient as to adverse consequences.

Plaintiff has brought forward five assignments of error, each of which pertains to the charge. He first contends the court erred in charging the jury that if they found the risk of paralysis is remote and unlikely as a result of the arteriogram and informing the plaintiff of such a risk would not have been required under the existing standard of medical care in Asheville, there would not have been a duty to disclose to the plaintiff the possibility of paralysis. The plaintiff contends this was error because all the evidence is that it was the duty of the physician to inform the plaintiff of the risk of paralysis. In Brigham v. Hicks, supra, we declined to pass on the question of whether expert medical testimony is required to establish the extent of a physician’s duty to inform patients of the risks of proposed treatment. In the case sub judice, several medical experts testified it was the duty of one or both of the defendants to inform the plaintiff of the risk of paralysis. No medical expert testified it was not the duty of either defendant to so warn the plaintiff. There was substantial expert testimony that the chance of paralysis from an arterio-gram was remote. Dr. Kennedy testified the chance of paralysis in this situation was 1 in 500. Dr. Richards testified as to the disadvantage of the amount of explanation that must be made to a patient. All of the medical experts did not testify the standard of medical care in Asheville requires a physician to inform a patient of the possibility of paralysis as a result of an arteriorgram. We believe with this information laymen are capable of determining whether good medical practice requires a physician to inform his patient of the possibility of paralysis as a result of an arteriogram. See 1 Stansbury’s N.C. Evidence § 132 (Brandis rev. 1973) for the rule as to the necessity for expert testimony when the jury is not as capable of forming an opinion as the witness. See also 52 A.L.R. 3d 1084 as to how other jurisdictions have dealt with the problem of requiring expert medical testimony on the question of requiring that a patient be informed of the risks of a medical procedure. In this case the jury did not have to believe the experts. We hold it was a jury question as to whether the standard of medical care in Asheville required the defendant to inform the plaintiff of the possibility of paralysis resulting from the arteriogram. The court was correct in so charging the jury.

In her second assignment of error the plaintiff contends the court erred in instructing the jury that they could find defendant was not negligent if they found Dr. Ledbetter had the sole responsibility of advising plaintiff of the risk of paralysis. She contends there was no evidence to support this portion of the charge. Plaintiff offered into evidence the deposition of Dr. Appel in which he stated:

“[I]t was the duty of the defendant Dr. Ledbetter ... to explain to the plaintiff the risk of paralysis ....

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In the case of a patient undergoing an arteriogram, the Neurologist is the responsible attending physician [whose responsibility it is] . . . to explain the normal risks of an arteriogram or angiogram, such as paralysis.”

This testimony supported the instruction to the jury.

In her third assignment of error the plaintiff contends the court improperly charged the jury that, even if the defendants had not informed the plaintiff of risks of paralysis, she would not be entitled to recover were they to find that had she been so informed she would have consented thereto in any event. We believe this instruction was correct. The burden was on the plaintiff to prove that the defendant was negligent in not properly informing the plaintiff of the risks involved in the procedure and that this negligence was a proximate cause of the injury. If the plaintiff would have undergone the procedure after being properly informed, the failure to so inform would not be a proximate cause of the injury. We believe the evidence of the slight danger of paralysis, combined with the serious condition of the plaintiff, was evidence from which the jury could have concluded the plaintiff would have proceeded with the procedure whether or not she was properly informed.

We have examined the plaintiffs remaining assignments of error and find them to be without merit.

No error.

Judges Hedrick and Arnold concur.