Doreika v. Blotner: Affirming Ketchup Against Judicial Mustard - Valentin Leppert

• Citation: Vol. 60 No. 2
• Publication year: 2009

Casenote

Doreika v. Blotner: Affirming Ketchup

Against Judicial Mustard

I. Introduction

The doctrine of informed medical consent has been a point of contention in Georgia for over thirty-five years. While this doctrine is well-established throughout the united States, courts in Georgia have struggled to determine its availability and scope. In Doreika v. Blotner,¹ the Georgia court of Appeals applied the common law doctrine of informed medical consent to a chiropractor.² The highly contested decision revived the debate over the existence and applicability of the common law doctrine in Georgia. The Georgia Supreme Court has granted certiorari to review the availability of the common law doctrine of informed medical consent and its applicability to chiropractors in Georgia.³

II. Factual Background

Paul Doreika alleged that he sustained injuries as a result of chiropractor Dr. Gregg Blotner's treatment. Specifically, Doreika argued that Dr. Blotner did not inform him about the risks of neck adjustments and treatment alternatives prior to the procedure which either caused a herniated disc or aggravated a pre-existing disc condition. As a result of Dr. Blotner's alleged failure to inform Doreika of such risks and alternatives, Doreika asked the trial court to give several jury charges on the issue of informed consent.⁴ However, because Georgia's informed consent statute⁵ does not enumerate this chiropractic procedure, the trial court found the doctrine of informed consent inapplicable to chiropractors and refused to give the requested charges.⁶ The jury subsequently found in favor of Dr. Blotner, and Doreika appealed.⁷

In a 7-5 decision, the Georgia Court of Appeals reversed the lower court's judgment.⁸ Writing for the majority, Presiding Judge Johnson held that the common law doctrine of informed consent applies to all medical professionals in Georgia, including chiropractors.⁹ Dr. Blotner has appealed this holding to the Georgia Supreme Court, which has granted certiorari.¹⁰

III. Legal Background

The common law doctrine of informed medical consent requires that a doctor disclose certain risks to a patient before obtaining consent for a proposed procedure.¹¹ The foundation of the doctrine is the principle that human dignity requires that each person be afforded control over her own body.¹² This doctrine experienced a fast rise to popularity.

After its first adoption by the state of California in 1957,¹³ the doctrine became the prevailing law in the united States by 1972.¹⁴ However, the development of this doctrine in Georgia has not been easy because even today questions persist about the extent of its applicability.

Parts A and B of the following analysis explore the history of the common law doctrine of informed consent and track its development to its current status as the prevailing law in the united States. Part C analyzes informed consent in Georgia, including all pertinent events preceding this litigation.

A. Early History of the Doctrine of Informed Consent

In their beginning stages, the ethical rules of the medical profession diametrically opposed today's doctrine of informed consent.¹⁵ The famous ancient physician Hippocrates advocated a different approach: doctors should not share any information with patients because the information could potentially upset the patient and thereby worsen the patient's condition.¹⁶ The Greek philosopher Plato even believed that a physician should say whatever necessary, including lies and misrepresentations, to persuade the patient to accept treatment.¹⁷ This paternalistic approach presupposed that the doctor was always right and that the patient was to blindly obey the doctor's orders.¹⁸ Nonetheless, this view remained steadfast as the prevailing approach until the end of the nineteenth century.¹⁹

The first significant change to Hippocrates's approach occurred in 1889 when the Maryland Court of Appeals in State v. Housekeeper²⁰ held that a doctor had to receive his patient's consent prior to performing a medical procedure.²¹ Sixteen years later, in Mohr v. Williams,²² the Minnesota Supreme Court continued this trend by holding that a doctor, who had operated on a patient's left ear, was liable for battery because the patient had consented only to an operation on her right ear.²³ The court held that even in the doctor-patient relationship, touching the person of another without consent amounts to battery.²⁴ Justice Cardozo expressed this idea of basic consent more eloquently in 1914 when he stated in Schloendorff v. Society of New York Hospital²⁵ that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body."²⁶

This concept of the patient's right to self-determination over her body laid the foundation for the doctrine of informed consent.²⁷ The early basic consent cases merely required the patient's consent to a procedure to avoid a doctor's liability for battery.²⁸ Forty-three years after Schloendorff, the California Court of Appeals in Salgo v. Leland Stanford University Board of Trustees,²⁹ expanded on Justice Cardozo's notion of the right of self-determination, thereby giving birth to the doctrine of informed consent.³⁰ The California court not only required basic consent but also required that a doctor first adequately inform a patient about the proposed procedure in order for the consent to be valid.³¹

B. Modern Day Informed Consent

The 1957 ruling of the California Court of Appeals in Salgo was significant not only for adding the disclosure requirement but also because the court found an action for failure to give informed consent in the law of negligence as opposed to the intentional tort of battery.³² Other courts quickly followed suit; only three years later, the Kansas Supreme Court in Natanson v. Kline³³ adopted the common law doctrine of informed consent.³⁴ The Kansas court applied a "reasonably prudent physician" standard as the measure for juries to determine whether a doctor has disclosed sufficient information for the consent of the patient to be valid.³⁵ Under this standard, a doctor must disclose what a reasonably prudent physician in the same practice area would have disclosed under similar circumstances.³⁶

Twelve years later, the United States Court of Appeals for the District of Columbia adopted a different version of the doctrine of informed consent in Canterbury v. Spence.³⁷ The D.C. Circuit required a "reasonably prudent patient" standard as the measure for juries to use in determining the sufficiency of the disclosure.³⁸ Under this standard, a doctor must disclose all information that a reasonably prudent patient would find material in deciding whether to consent to a proposed procedure.³⁹ This includes disclosure of all material risks and potential alternative measures.⁴⁰ The D.C. Circuit rejected the reasonable physician standard adopted in Kansas as contradicting the doctrine's premise of ensuring patient control over the patient's body; the reasonable physician standard of Kansas allows doctors to exercise the paternalistic discretion the doctrine seeks to prevent, thus undermining the premise of the doctrine.⁴¹

Kansas and the D.C. Circuit base the doctrine of informed consent on two different rationales.⁴² The distinction is subtle but quite significant: the Kansas approach bases the duty to give informed consent on professional custom,⁴³ while the D.C. Circuit bases the duty on the patient's right to self-determination.⁴⁴ In the custom rationale of Kansas, the duty to disclose arises from the medical profession's standard—the same standard applied in other medical malpractice cases.⁴⁵ To prevail under this standard, a plaintiff must show that a reasonable doctor under similar circumstances would have disclosed more than the defendant-doctor disclosed in a particular case.⁴⁶ In contrast, the self-determination approach of the D.C. Circuit imposes the duty upon all doctors by law, regardless of the custom within the profession.⁴⁷ This rationale ranks the patient's right to self-determination above any custom of the profession.⁴⁸ Today, about half of all jurisdictions have adopted the reasonably prudent patient standard while the other half still employ the reasonably prudent physician standard.⁴⁹

While there are two alternative rationales underlying the doctrine of informed consent, the basic premise that a doctor must disclose certain risks of treatment to a patient for the consent to be valid is now the established law in the United States.⁵⁰ Beyond its historical roots in the common law, the doctrine received further support in 1990 when the United States Supreme Court decided Cruzan v. Director, Missouri Department of Health:⁵¹ This holding added a constitutional dimension by announcing a person's right to control her body as anchored in the Due Process Clause of the Fourteenth Amendment.⁵² Forty-nine states have either codified the doctrine of informed consent or have extensive caselaw to provide guidance to lower courts regarding the application of the doctrine.⁵³ However, the adoption of the doctrine of informed consent has been difficult in Georgia and questions remain as to what extent the doctrine exists and if so which version might apply.

C. Informed Consent in Georgia

The history of informed consent in Georgia features four distinct time periods. Initially, the common law prior to legislative intervention in 1971 did not conclude whether the doctrine existed in Georgia. Then, the legislature enacted a basic consent statute,⁵⁴ which the Georgia Court of Appeals interpreted as preempting the entire field and thus precluding the recognition of a common law doctrine of informed consent.⁵⁵ Following this period, the legislature added a disclosure requirement for specific cases when it enacted a second statute in 1988.⁵⁶ Finally, the court of appeals overruled its prior decision and announced the existence of a common law doctrine of informed consent in Georgia.⁵⁷

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