McKinney v. Nash

Majority - Young (S. C.), J.

1. Yes, the evidence was sufficient for a jury to infer negligence by Dr. Nash under the doctrine of res ipsa loquitur regarding John McKinney's testicular atrophy. The court reversed the directed verdict as to Dr. Nash. The doctrine of res ipsa loquitur applies when an injury is of such a nature that it can be said, in light of past experience or expert testimony, that it probably resulted from negligence by someone and was caused by an instrumentality within the defendant's exclusive control, not due to the plaintiff's voluntary action (Newing v. Cheatham; Evid. Code, § 646). Here, expert Dr. Karam testified that the post-surgical vascular damage causing testicular atrophy would not be expected in a normal surgical procedure and indicated performance below the expected standard of care. Dr. Nash himself stated that bilateral testicular atrophy occurs in less than one-tenth of one percent of cases even with due care. The court held that the rarity of this result, particularly bilateral atrophy, could lead a jury to infer a lack of due care, and the jury is not required to accept the surgeon's explanation that it can happen with due care (Tomei v. Henning; Quintal v. Laurel Grove Hospital). The simple fact that McKinney went into surgery with normal testicles and emerged with significant atrophy, coupled with expert testimony, presented a clear jury question. 2. No, there was insufficient evidence to infer negligence by Dr. Moon under the doctrine of res ipsa loquitur. The court affirmed the directed verdict as to Dr. Moon on this theory. All experts agreed that vascular damage was the likely cause of the testicular atrophy, an agency not in Dr. Moon's exclusive control as the anesthesiologist. While the spinal anesthetic was the probable cause of McKinney's numbness, Dr. Raskin, the only expert on the anesthesiologist's standard of care, testified that such a neurological defect would not be consistent with a lack of due care, but rather an unpredictable idiosyncratic patient reaction. Thus, the first condition of res ipsa loquitur (injury ordinarily not occurring absent negligence) was not met for Dr. Moon. 3. Yes, there was sufficient evidence for a jury to find that Dr. Nash failed to obtain John McKinney's informed consent for the surgery. The court reversed the directed verdict as to Dr. Nash on this theory. A physician has a duty to disclose material information that a reasonable person in the patient's position would regard as significant when deciding whether to accept treatment (Cobbs v. Grant; Truman v. Thomas). Dr. Nash testified that swelling/bleeding occurs in 4-5% of patients and bilateral testicular atrophy in 0.1% but failed to disclose these risks, telling McKinney it was a 'simple operation' with 'no problem.' McKinney testified he would have declined surgery if informed. While the incidence of testicular atrophy is low, its seriousness, especially its psychological contribution to impotency as testified by Dr. Sharlip, precluded the court from finding, as a matter of law, that a jury could not reasonably deem this knowledge material to McKinney’s decision, particularly given his nonsurgical option. 4. No, there was insufficient evidence for a jury to find that Dr. Moon failed to obtain John McKinney's informed consent. The court affirmed the directed verdict as to Dr. Moon on this theory. While Dr. Moon acknowledged a risk of contaminated spinal anesthetic causing neurological damage, expert Dr. Raskin established that this is no longer a current risk. The alternative cause of McKinney's neurological damage (numbness) was identified as an extremely rare idiosyncratic reaction, which was not considered a material risk requiring disclosure. 5. No, Dr. Nash's statement did not constitute an express contract or warranty, and there was no evidence for a claim of breach of contract or warranty against either defendant. The court affirmed the directed verdict for both defendants on this theory. To recover for breach of warranty in medical malpractice, there must be proof of an express contract where the physician clearly promises a particular result and the patient relies on that promise (Depenbrok v. Kaiser Foundation Health Plan, Inc.). Dr. Nash's comment that the operation would be 'simple and without problem' was a generalized statement, not a clear promise of a particular result. The law requires an express contract, so no contract could be implied from Dr. Moon's failure to explain anything, as doctors are not guarantors of results (Cobbs v. Grant).