{ "id": 1449612, "name": "James ARONSON, M.D. v. Douglas HARRIMAN", "name_abbreviation": "Aronson v. Harriman", "decision_date": "1995-07-17", "docket_number": "94-1218", "first_page": "359", "last_page": "376", "citations": [ { "type": "official", "cite": "321 Ark. 359" }, { "type": "parallel", "cite": "901 S.W.2d 832" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "313 Ark. 549", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1914625 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/313/0549-01" ] }, { "cite": "379 A.2d 1014", "category": "reporters:state_regional", "reporter": "A.2d", "year": 1977, "pin_cites": [ { "page": "1025", "parenthetical": "internal citations omitted." } ], "opinion_index": 0 }, { "cite": "14 Hofstra L. Rev. 621", "category": "journals:journal", "reporter": "Hofstra L. Rev.", "year": 1986, "opinion_index": 0 }, { "cite": "302 Ark. 228", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1884314 ], "weight": 2, "year": 1990, "opinion_index": 0, "case_paths": [ "/ark/302/0228-01" ] }, { "cite": "308 Ark. 401", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904331 ], "weight": 2, "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/308/0401-01" ] }, { "cite": "320 Ark. 177", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451260 ], "weight": 3, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0177-01" ] }, { "cite": "320 Ark. 689", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451218 ], "weight": 3, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0689-01" ] }, { "cite": "312 Ark. 240", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1935112 ], "weight": 2, "year": 1993, "opinion_index": 0, "case_paths": [ "/ark/312/0240-01" ] }, { "cite": "320 Ark. 310", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451220 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0310-01" ] }, { "cite": "826 S.W.2d 10", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 9962014 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/sw2d/826/0010-01" ] }, { "cite": "308 Ark. 637", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1904317 ], "year": 1992, "opinion_index": 0, "case_paths": [ "/ark/308/0637-01" ] }, { "cite": "268 Ark. 476", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1715476 ], "weight": 3, "year": 1980, "pin_cites": [ { "page": "479" } ], "opinion_index": 0, "case_paths": [ "/ark/268/0476-01" ] }, { "cite": "320 Ark. 273", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1451231 ], "weight": 2, "year": 1995, "opinion_index": 0, "case_paths": [ "/ark/320/0273-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-114-206", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 10, "pin_cites": [ { "page": "(b)(l)" }, { "parenthetical": "b" }, { "page": "(b)(l)" }, { "page": "(b)(1987)" }, { "page": "(b)(l)" }, { "page": "(b)(l)" }, { "page": "(b)(2)(C)" }, { "page": "(b)(2)(C)" }, { "page": "(b)(2)" }, { "page": "(b)(2)(A) and (B)" } ], "opinion_index": 0 } ], "analysis": { "cardinality": 1124, "char_count": 32777, "ocr_confidence": 0.889, "pagerank": { "raw": 2.4730978969564686e-07, "percentile": 0.8067371881526684 }, "sha256": "a882af9c62668dfb3dcf24d7a06e2eecdc250dd225e2c1474de0f8d176a782b0", "simhash": "1:706ecca65e181879", "word_count": 5376 }, "last_updated": "2023-07-14T20:21:00.559388+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "James ARONSON, M.D. v. Douglas HARRIMAN" ], "opinions": [ { "text": "Jack Holt, Jr., Chief Justice.\nThis is a medical malpractice case. The appellee, Douglas Harriman, underwent surgery to correct scoliosis, and was left paralyzed from the chest down following the procedure. He brought suit against the appellant, Dr. James Aronson, the orthopedic surgeon who performed the procedure, and certain named malpractice insurance carriers. The case proceeded to trial against separate defendant Dr. Aronson on the issues of negligent medical care and treatment, and on Dr. Aronson\u2019s alleged failure to obtain Mr. Harriman\u2019s informed consent to the procedure. The jury considered these issues separately, and returned a verdict in favor of Dr. Aronson on the issue of medical malpractice, but in favor of Mr. Harriman on the issue of informed consent. The trial court entered judgment against Dr. Aronson in the amount of $931,287.53 in accordance with the jury\u2019s verdict, from which he now appeals. Mr. Harriman cross-appealed the trial court\u2019s order dismissing separate defendant American Insurance Exchange; however, we dismissed Mr. Harriman\u2019s cross-appeal, pursuant to his motion to withdraw.\nIn presenting his appeal, Dr. Aronson raises three points: (1) that the trial court erred in denying his various motions for directed verdicts, motion in limine, and in submitting the issue of informed consent to the jury; (2) that the issue of informed consent was inappropriate to submit to the jury because Mr. Harriman himself could not state that, if he had been informed that paralysis was a possible complication of the surgery, he would not have undergone the procedure; and (3) that the trial court erred in instructing the jury and submitting an interrogatory to them on the issue of informed consent. We affirm.\nFacts\nOn September 4, 1991, appellee Douglas Harriman, then eighteen years old, underwent surgery at Arkansas Children\u2019s Hospital to correct scoliosis, commonly known as the abnormal curvature of the spine. The surgery, known as a Cotrel-Dubosset (\u201cCD\u201d) instrumentation procedure, which involves the implantation of rods into the spinal column, was performed by the appellee, Dr. James Aronson, an orthopedic surgeon. After the CD rods were inserted and during the stage of procedures known as the \u201cwake-up test,\u201d in which Mr. Harriman was brought to a level of consciousness in order to determine whether he could move his feet and toes, it was determined that Mr. Harriman could not move his feet at all. The rods were then removed, the incision closed, and Mr. Harriman was taken to a recovery room where several other tests were performed. Most unfortunately, following the surgery, Mr. Harriman was left paralyzed from his chest down.\nMr. Harriman filed a complaint in Pulaski County Circuit Court against Dr. Aronson\u2019s malpractice insurance carrier, American Physicians Insurance Exchange (\u201cAmerican\u201d), and St. Paul Fire & Marine Insurance Company (\u201cSt. Paul\u201d), the insurance carrier for Arkansas Children\u2019s Hospital, alleging medical negligence. Thereafter, Mr. Harriman amended his complaint to include Dr. Aronson as a separate defendant. The trial court granted American\u2019s motion to dismiss, St. Paul was non-suited, and the case proceeded to trial against Dr. Aronson on the issues of negligent medical care and treatment, and on Dr. Aronson\u2019s alleged failure to obtain Mr. Harriman\u2019s informed consent to the procedure.\nAt trial, Douglas'Harriman\u2019s mother, Janet Harriman, testified that a school nurse discovered that her son, a diabetic, had scoliosis. After seeing two other physicians, Mrs. Harriman took Douglas to see Dr. Aronson at Arkansas Children\u2019s Hospital, thinking that he would fit Douglas with a brace. According to Mrs. Harriman, Dr. Aronson told them that a brace would not work, as Douglas\u2019 body had grown to maturity, and mentioned the possibility of surgery. During a second visit with Dr. Aron-son, they further discussed the option of surgery, as well as the Harrimans\u2019 concern that Douglas was a diabetic.\nDuring a third visit to the hospital, Douglas underwent an MRI and saw a slide show, which indicated that scoliosis became dangerous when the curvature reached 40 degrees. It was Mrs. Harriman\u2019s testimony that Dr. Aronson had told them that the curvature in Douglas\u2019 spine was 38 degrees, but that he felt that surgery was necessary. Mrs. Harriman further stated that she and her husband, Harlan Harriman, had discussed the surgery, and that their main concern was the idea of their son being anesthetized under his diabetic condition. Mrs. Harriman could not recall Dr. Aronson telling her that paralysis was a risk; furthermore, she stated that she would have remembered had Dr. Aron-son told her of this possibility. According to Mrs. Harriman, when signing the consent form, she asked Dr. Aronson if her son could be disabled, to which he responded, \u201cI have done a number of these operations, and I have never had anything happen yet.\u201d\nDuring cross-examination of Mrs. Harriman, Dr. Aronson sought and obtained admission of a notation in a medical chart by Dr. Neal Lenthicum, a resident physician who treated Douglas, in which Dr. Lenthicum indicated that the risks and benefits of surgery had been discussed with Douglas and his parents, that their questions had been answered, that he had seen Douglas with Dr. Aronson, and that the family understood the procedure and would proceed with surgery. Also admitted into evidence during cross-examination of Mrs. Harriman was a consent form signed by Mrs. Harriman and her son, as well as a progress note written by Dr. Aronson indicating that he had discussed the risks of the procedure with the family, including risks of \u201cneurological damage\u201d; however, no specific mention was made of the possibility of paralysis in the medical chart or consent form.\nDouglas\u2019 father, Harlan Harriman, corroborated much of his wife\u2019s testimony,, adding that they had left the decision up to Douglas as to whether to have the surgery. It was his testimony that Dr. Aronson had stated, in December of 1990, that the procedure was one \u201cthat had been done many, many times\u201d and that there was no problem with the surgery. While Mr. Harriman stated that the family did not discuss the possibility of paralysis, and that he had never heard any discussion about the possibility of a disability, he later admitted that, after a nurse said something to his wife, the subject of disability did arise, and that a discussion followed. Here again, no specific mention was made of the potential of paralysis.\nDr. John David Warbritton III, a board-certified orthopedic surgeon with a solo practice in Oakland, California, also testified on behalf of Douglas. He stated that, although he had never seen Douglas personally, he had examined his medical records, from which he determined that, as a result of either the incorrect placement of hooks or excessive instrumentation during the procedure, an interruption of blood to Douglas\u2019 spinal cord occurred, causing a spinal stroke and, ultimately, paralysis.\nWhen counsel for Mr. Harriman questioned Dr. Warbritton regarding the standard of care in 1991 for informing patients of complications pertaining to a spinal operation involving instrumentation, Dr. Aronson objected on the grounds that the information elicited had not been provided in discovery, and that Dr. Warbritton was not competent to testify on this issue. The trial court sustained the objection; however, Dr. Warbritton later testified that the opinions he had formulated in Douglas\u2019 case were based upon \u201ca national standard of care for all board-certified orthopedic surgeons.\u201d\nAt the conclusion of Dr. Warbritton\u2019s testimony, Dr. Aron-son, recognizing from pre-trial discovery that Mr. Harriman had no other experts left to be called as witnesses, moved in limine that Douglas be precluded from testifying on the issue of informed consent on the basis that there was no competent evidence in the record to submit a jury question on the issue. The trial court denied the motion.\nDouglas Harriman testified regarding the discovery of his scoliosis, stating that he was in quite a lot of pain during his early high school years. While he remembered that Dr. Aronson had talked with him about the possible infections and his diabetic condition, he stated that he never considered the possibility of paralysis, as Dr. Aronson never mentioned this risk to him prior to the surgery. It was Douglas\u2019 testimony that had Dr. Aronson mentioned the chance of paralysis, he \u201c[couldn\u2019t] say that [he] wouldn\u2019t have had [the surgery], but it would have made the decision a lot harder to decide.\u201d\nAfter Mr. Harriman rested, Dr. Aronson moved for directed verdict based on Mr. Harriman\u2019s failure to produce testimony, as required by Ark. Code Ann. \u00a7 16-114-206(b)(l), to show that the information Dr. Aronson provided Douglas did not comply with that given by other medical care providers with the same training and experience at the time of the surgery in the locality in which Dr. Aronson practiced, or in a similar locality. The trial court denied the motion, and Dr. Aronson made yet another motion for directed verdict based upon Mr. Harriman\u2019s alleged failure to state, pursuant to Ark. Code Ann. \u00a7 16-114-206 (b)(2)(C), that he would not have had the surgery even had he known of the potential risk of paralysis. The trial court again denied the motion.\nThereafter, Dr. Aronson, a board-certified orthopedic surgeon and a pediatric orthopedic specialist, testified on his own behalf. His credentials in the field on spinal surgery are extensive, which include working with Jean Dubousset in Paris, for whom the CD procedure was named, and with Dr. Harry Shuflebarger, who is widely recognized as the foremost CD spine surgeon in the United States. Dr. Aronson denied telling the Harrimans that it was \u201cmandatory\u201d that Douglas have surgery, stating that he twice explained the risks versus the benefits of surgery to them, as this was the \u201cway he always [did] things.\u201d It was Dr. Aronson\u2019s testimony that, when he explained to the Harrimans the neurological risks involved in operating in the vicinity of the spinal cord, Mrs. Harriman \u201cstepped back and was taken aback,\u201d and asked him if he had ever had that happen, to which he responded in the negative, stating, however, that the risk was one in one thousand. Specifically, Dr. Aronson testified that \u201cneurologic\u201d was a \u201cbig term,\u201d and stated that he explained this risk to the Harrimans as follows:\nOf course, I explain that that means if you injure a nerve in a hand that means a limited loss of feeling and strength. But if you injure the spinal cord a neurologic problem means paralysis. I discussed that September 3rd in front of all these students with Doug and his family. I discussed it in our second clinic visit well before we scheduled surgery. I would never schedule surgery without discussing that first.\nOn cross-examination, when asked if he \u201cdiscussfedj all those things with Douglas Harriman including paralysis,\u201d Dr. Aronson responded affirmatively, stating, \u201cOf course I did.\u201d\nDr. Albert Sanders testified on Dr. Aronson\u2019s behalf, stating that he had reviewed the medical records, x-rays, depositions, as well as the testimony of Dr. Warbritton. It was Dr. Sanders\u2019 opinion that Dr. Aronson\u2019s care and treatment of Douglas was \u201ccompletely appropriate.\u201d He stated on cross examination that paralysis was a risk with the type of procedure in question, and that it was appropriate to inform the patient of that risk.\nAt the close of Dr. Aronson\u2019s case, he renewed his motions for directed verdict, incorporating the same arguments in his previous motion at the close of Mr. Harriman\u2019s case, which the trial court denied. Mr. Harriman offered rebuttal testimony, stating that he \u201cremembered no talk ever \u2014 ever on the subject even being brought up of paralysis.\u201d Dr. Aronson renewed his motions for directed verdict, which the trial court denied. Thereafter, the trial court instructed the jury separately on the issues of negligence and informed consent. The jury returned a verdict in favor of Dr. Aronson on the issue of medical malpractice, but in favor of Mr. Harriman on the issue of informed consent. The trial court entered judgment against Dr. Aronson in the amount of $931,287.53 on the issue of informed consent, from which Dr. Aronson now appeals.\nI. Sufficiency of evidence on informed consent\nFor his first argument on appeal, Dr. Aronson submits that the trial court erred in denying his various motions for directed verdict, in denying his motion in limine, and in submitting the issue of informed consent to the jury. Particularly, Dr. Aronson asserts that Mr. Harriman failed to present evidence as required by Ark. Code Ann. \u00a7 16-114-206(b)(l) (1987), that the information provided to him about the anticipated surgery itself, including the recognized risks and benefits of the procedure, failed to conform with that type of information as would customarily have been given to a patient by orthopedic surgeons practicing in Little Rock or a similar locality in order to obtain Mr. Harriman\u2019s informed consent to the surgical procedure.\nMr. Harriman concedes in his brief that the trial court refused to allow his expert, Dr. John Warbritton, to testify regarding the standard of care for informed consent; however, he asserts that Dr. Aronson introduced certain evidence into the trial which established that paralysis was a risk of the procedure about which a patient would customarily have been advised by an orthopedic surgeon in Little Rock or a similar locality. Specifically, Mr. Harriman contends that there were four critical pieces of evidence which supported the jury\u2019s verdict on informed consent: (1) a notation in the medical chart by Dr. Neal Lenthicum; (2) the consent form; (3) a notation in the medical chart by Dr. Aronson; and (4) the testimony of Dr. Albert Sanders.\nThe framework for considering the issue of informed consent is set out in Act 709 of 1979, codified at Ark. Code Ann. \u00a7 16-114-206(b)(1987), which states, in pertinent part, as follows:\n(1) [T]hat type of information regarding the treatment, procedure, or surgery as would customarily have been given to a patient in the position of the injured person ... by other medical care providers with similar training and experience at the time of the treatment, procedure, or surgery in the locality in which the medical care provider practices or in a similar locality.\nSee also Arthur v. Zearley, 320 Ark. 273, 895 S.W.2d 928 (1995). Shortly after the legislature passed Act 709, we discussed the physician\u2019s duty to warn in Fuller, Adm\u2019x v. Starnes, 268 Ark. 476, 597 S.W.2d 88 (1980), holding that the physician\u2019s duty to disclose risks is measured by the customary practice of physicians in the community in which he practices or in a similar community. In so holding, we stated that the disclosure standard \u201calways requires expert medical testimony for the jury to determine whether a physician\u2019s failure to disclose constitutes a breach of his duty to disclose.\u201d Id. at 479.\nTwelve years later, in Grice v. Atkinson, 308 Ark. 637, 826 S.W.2d 10 (1992), we reaffirmed our position in Fuller in upholding the trial court\u2019s decision to direct a verdict in favor of a dentist where the patient\u2019s expert witness merely stated in a conclusory fashion that the information that the dentist had provided the patient in order to obtain her consent for oral surgery was inadequate. In Grice, we held that the expert\u2019s testimony lacked the \u201cessential constituent of proof\u2019 mandated by Ark. Code Ann. \u00a7 16-114-206(b)(l), where there was no attempt to compare the locale of the expert\u2019s practice to that of the dentist, there was no testimony regarding the size, character, availability of facilities, or even the location of the expert\u2019s practice, and where there was no attempt to compare the similarity of medical/dental facilities, practices and advantages available in the dentist\u2019s locality with those existing in comparable localities with which the expert was familiar.\nMost recently, we relied on our decision in Fuller in Brumley v. Naples, 320 Ark. 310, 896 S.W.2d 860 (1995), in affirming the trial court\u2019s granting of summary judgment in favor of a physician on the issue of informed consent, where, upon the trial court\u2019s review of the deposition of the patient\u2019s disclosed expert, the expert could not offer testimony as required by \u00a7 16-114-206(b).\nOur standard of review in determining the propriety of the trial court\u2019s refusal to direct a verdict is whether the jury\u2019s verdict was supported by substantial evidence, that is, evidence that was sufficient to compel a conclusion one way or the other that goes beyond suspicion or conjecture. Barnes, Quinn, Flake & Anderson v. Rankins, 312 Ark. 240, 848 S.W.2d 924 (1993). Dr. Aronson made a directed verdict motion at the close of Mr. Harriman\u2019s case specifying the same grounds he now argues on appeal; that is, that Mr. Harriman failed to present the requisite expert testimony pursuant to Ark. Code Ann. \u00a7 16-114-206(b)(l). While Dr. Aronson\u2019s abstract indicates that he merely \u201crenewed [his] motions for directed verdict\u201d at the close of Mr. Harriman\u2019s case and at the close of all the evidence, we recently held in Durham v. State, 320 Ark. 689, 899 S.W.2d 470 (1995), that a criminal defendant is not required to restate his grounds for directed verdict where he has made a specific motion at the close of the State\u2019s case, and incorporates the same arguments by the later renewal. We see no reason not to apply the rule in Durham to civil cases and to this case in particular, as Dr. Aronson made a specific motion at the close of Mr. Harriman\u2019s case as required by Ark. R. Civ. R 50(a), and incorporated the same arguments by the later renewal. As such, we will reach the merits of his arguments.\nWhen reviewing the evidence in a light most favorable to Mr. Harriman, as we are required to do, See e.g. Quinney v. Pittman, 320 Ark. 177, 895 S.W.2d 538 (1995), we recognize that, had Dr. Aronson stood on his directed verdict motion at the close of Mr. Harriman\u2019s case, his argument that there was insufficient expert evidence on the issue of the physician\u2019s duty to disclose would be well taken. However, Dr. Aronson waived his objection to the sufficiency of the evidence when he presented his own case. See Durham v. State, supra; Rudd v. State, 308 Ark. 401, 825 S.W.2d 565 (1992). See also Willson Safety Products v. Eschenbrenner, 302 Ark. 228, 788 S.W.2d 729 (1990).\nDuring the presentation of his case, Dr. Aronson testified on his own behalf, through which he provided the required proof on the physician\u2019s duty to disclose. Specifically, Dr. Aronson testified that he saw Douglas during preoperative rounds along with Dr. Elaine Barber, the chief resident, Dr. Neal Lenthicum, a junior resident, a medical student, and his nurse. It was Dr. Aronson\u2019s testimony that while obtaining Douglas\u2019s consent to surgery, he was instructing the young doctors on this procedure. According to Dr. Aronson, he \u201calways talk[ed] about the following complications, with spine surgery especially,\u201d which included bleeding, infection, the effects of anesthesia, neurological injury, the use of hooks and rods in the procedure, the possibility of hardware failure, and the risk of death. Of particular significance was Dr. Aronson\u2019s statement that \u201c[w]hen you operate on the spinal cord and do scoliosis surgery, there is no way not to talk about the potential for neurologic injury.\u201d Under these circumstances, when considered together with Dr. Albert Sanders\u2019s testimony that paralysis is a risk in spinal surgeries about which a patient should be informed, we cannot say that the trial court erred in denying Dr. Aronson\u2019s motion for directed verdict made at the close of his case and again at the close of all the evidence.\nDr. Albert Sanders, a board-certified orthopedic surgeon practicing in San Antonio, Texas, testified on behalf of Dr. Aronson, stating that, in his opinion, Dr. Aronson\u2019s care and treatment of Douglas in September of 1991 was \u201ccompletely appropriate\u201d and met the appropriate standard of care of pediatric surgeons in Little Rock or in a similar community. However, on cross examination, Dr. Sanders offered the following testimony concerning the risk of paralysis:\nCOUNSEL FOR MR. HARRIMAN: You\u2019ve stated that paralysis is a risk of this type of procedure; is that correct?\nWITNESS: That is correct.\nCOUNSEL FOR MR. HARRIMAN: Is it appropriate to inform a patient of that risk?\nWITNESS: It is appropriate.\nCOUNSEL FOR MR. HARRIMAN: Is it inappropriate or is it a breach of the standard of care not to inform them of that risk?\nWITNESS: Paralysis is one of the most devastating complications of scoliosis surgery and patients must be informed of it.\nCOUNSEL FOR MR. HARRIMAN: And if they are not, is it a breach of the standard of care?\nWITNESS: That would be.\nWhen considering Dr. Sanders\u2019s testimony that it is a breach of the standard of care to fail to inform a patient of the risk of paralysis, together with Dr. Aronson\u2019s own testimony regarding the standard of care, we must conclude that the trial court did not err in denying Dr. Aronson\u2019s motion for directed verdict.\nII. Ark. Code Ann. \u00a7 16-114-206(b)(2)(C)\nFor his second argument on appeal, Dr. Aronson claims that the trial court erred in failing to grant his motion for directed verdict on the grounds that Mr. Harriman failed to comply with the statutory language of Ark. Code Ann. \u00a7 16-114-206(b)(2)(C), as Mr. Harriman could not state that he would not have had the surgery even if he had been informed of the risk of paralysis. Stating his argument another way, Dr. Aronson submits that Mr. Harriman failed to meet his burden of proving that Dr. Aronson\u2019s negligence in failing to inform him of the potential of paralysis was a proximate cause of his injuries. During his case in chief, Mr. Harriman testified as follows:\nCOUNSEL FOR MR. HARRIMAN: If Dr. Aronson had mentioned to you that there was included in the risks the chance of paralysis, what effect would that have had on your decision to have the surgery?\nCOUNSEL FOR DR. ARONSON: Objection, Your Honor.\nTHE COURT: Objection be denied.\nWITNESS: I wouldn\u2019t \u2014 I couldn\u2019t say that I wouldn\u2019t have, but it would have made the decision \u2014 I can\u2019t say that I still wouldn\u2019t have had it. I may still have had it, but it would have made the decision a lot harder to decide, I\u2019m sure.\nCOUNSEL FOR MR. HARRIMAN: Did you consider it at all?\nWITNESS: No.\nCOUNSEL FOR MR. HARRIMAN: When, if anytime, was it mentioned to you by Dr. Aronson prior to surgery?\nWITNESS: It never was.\nArkansas Code Annotated \u00a7 16-114-206(b)(2) (1987) states as follows:\n(2) In determining whether the plaintiff has satisfied the requirements of subdivision (b)(1) of this section, the following matters shall also be considered as material issues:\n(C) Whether the injured party would have undergone the treatment, procedure, or surgery regardless of the risk involved or whether he did not wish to be informed thereof.\nWhen looking to the plain language of this subsection, we agree with Mr. Harriman\u2019s assertion that it merely states that whether the injured party would have undergone the procedure regardless of the risk involved is a material issue, rather than a required constituent of proof. Thus, we must address Dr. Aronson\u2019s argument that Mr. Harriman did not prove that Dr. Aronson\u2019s failure to inform him of the risk of paralysis was a proximate cause of his damages.\nIn support of hi\u00bb argument that Mr. Harriman failed to prove the required element of causation, Dr. Aronson asserts that the following passage from a Hofstra Law Review article is directly probative of this issue:\nBut suppose the plaintiff, despite an awareness of his litigation posture, is so uncertain of how he would have reacted to an adequate disclosure that he can say no more than, \u201cI don\u2019t know.\u201d Should his case be deemed legally sufficient? I think not, for a few reasons. First, such an unenlightening answer indicates that the plaintiff is unable to assert even that his right of self-determination was violated. Since the essence of the cause of action is a frustration of the plaintiff\u2019s right to self-determination, the inability to assert even a probable violation seems to destroy the crux of the action. Since the one person in the world who should best know how he would have reacted to an adequate disclosure has given an unenlightening response, permitting the jury to consider the issue would be an exercise in undue speculation. Rejecting the \u201cI don\u2019t know\u201d response does not unduly impose an \u201chonest\u201d plaintiff; rather, it bases the distinction between a case which is legally sufficient and one which is not on the presence or absence of critical testimony from the \u201cworld\u2019s foremost authority\u201d on the subject.\nDavid E. Seidelson, Lack of Informed Consent in Medical Malpractice, 14 Hofstra L. Rev. 621 (1986). Even so, we cannot agree with Dr. Aronson\u2019s position that Mr. Harriman\u2019s failure to state that he absolutely would not have undergone the procedure had he been informed of the risk of paralysis should have precluded the jury from being allowed to reach the issue of informed consent. Instead, we adopt an objective standard for determining the effect of complete information on Mr. Harriman\u2019s decision. Under an objective standard, causation is evaluated in terms of whether a reasonable and prudent patient in Mr. Harriman\u2019s position would have withheld consent to the treatment or procedure had the material risks been disclosed. Pegalis & Wachsman, American Law of Medical Malpractice 2d, \u00a7 4:1, pp. 200-201 (Clark Boardman Callaghan 1992). In adopting the objective standard, the Maryland Court of Appeals stated that:\n[I]f a subjective standard were applied, the testimony of the plaintiff as to what he would have hypothetically done would be the controlling consideration. Thus, proof of causation under a subjective standard would ultimately turn on the credibility of the hindsight of a person seeking recovery after he had experienced a most undesirable result. Such a test puts the physician in \u201cjeopardy of the patient\u2019s hindsight and bitterness.\u201d\nSard v. Hardy, 379 A.2d 1014, 1025 (Md. 1977) (internal citations omitted.) The objective approach we take permits the jury to take into account Mr. Harriman\u2019s testimony with regard to whether he would have consented to such risks but would not predicate the outcome of the case solely on that testimony.\nOur adoption of an objective standard is consistent with Ark. Code Ann. \u00a7 16-114-206(b)(2) (1987), which states that testimony of the injured party about what he would have done regardless of the risk is only one factor to be considered material to the determination, rather than dispositive. By adopting this standard, we are in line with a majority of cases which have wrestled with this issue. See Prosser & Keeton on Torts \u00a7 32, p. 191 (5th ed. 1984); see also Speiser, Krause, Gans, The American Law of Torts, \u00a7 15:73, p. 658 (Lawyers Co-operative Publishing Co. 1987).\nIn applying this objective standard to the facts at hand, we do not agree that the jury should have been precluded from being allowed to reach the issue of informed consent; as the jury was able to consider Mr. Harriman\u2019s testimony that he was unsure whether he would have undergone the procedure had he known of the risk of paralysis, along with other factors such as whether a patient of ordinary intelligence and awareness in Mr. Harriman\u2019s position could reasonably be expected to know of the risks involved in the procedure, and whether Mr. Harriman actually knew of the risks of the procedure. See Ark. Code Ann. \u00a7 16-114-206(b)(2)(A) and (B). Thus, the jury was free to conclude that, with the information that paralysis was in fact a risk, a reasonable prudent patient would not have consented to having the surgery. As there was conflicting testimony as to whether Dr. Aronson informed Mr. Harriman of the risk of paralysis, it was within the province of the jury to weigh the credibility of the witnesses. See Quinney v. Pittman, supra. The jury found, by a preponderance of the evidence, that Dr. Aronson failed to supply to Mr. Harriman that type of information regarding the treatment and surgery as would have been customarily given to a patient in Mr. Hardman\u2019s position by other medical providers with similar training and experience at the time of the treatment and surgery in Little Rock or in a similar locality. Under these circumstances, we conclude that Dr. Aronson\u2019s failure to so advise Mr. Harriman was a proximate cause of Mr. Hardman\u2019s damages, and, thus, Dr. Aronson\u2019s argument on this point is without merit.\nIII. Informed consent instruction\nDr. Aronson\u2019s final point on appeal is that the trial court erred in instructing the jury on the issue of informed consent. Specifically, Dr. Aronson objected to jury instruction numbers five, six, and nine, arguing that there was a \u201clack of sufficient competent evidence\u201d to submit the issue of informed consent to the jury. Jury instruction number five was given as follows:\nDouglas Harriman claims damages from James Aronson, M.D. and has the burden of proving each of these essential propositions: First, that he has sustained damages; second, that James Aronson, M.D. was negligent or that James Aronson, M.D. failed to give sufficient information to Douglas Harriman to obtain an informed consent.\nDr. Aronson objected to jury instruction number five, which was a modification of Arkansas Model Instruction: Civil 3d 203, as the issue of informed consent was added to this instruction. The trial court overruled Dr. Aronson\u2019s objection.\nAlso at issue is jury instruction number six, which reads as follows:\nYou\u2019ll be given three written interrogatories [sic]. These interrogatories present the issues of fact which you must decide.\nSecond, do you find from a preponderance of the evidence that Dr. James Aronson failed to supply to Douglas Harriman that type of information regarding the treatment and surgery as would customarily have been given a patient in the position of Douglas Harriman by other medical care providers with similar training and experience at the time of the treatment and surgery in this locality or a similar locality?\nDr. Aronson objected to the submission of jury instruction number six on the basis that there was a lack of sufficient competent evidence in the record to submit the issue of informed consent to the jury. The trial court again overruled Dr. Aronson\u2019s objection. Finally, jury instruction number nine was read to the jury, which states that:\nPrior to plaintiff\u2019s surgery the physician has a duty to supply to Douglas Harriman that type of information regarding the treatment and surgery as would have been given to a patient in the position of Douglas Harriman by other medical care providers with similar training and experience at the time of the treatment and surgery in the locality in which the medical care provider practices, or in a similar location. A failure to meet this standard is negligence.\nIn determining whether a physician satisfied his duty to provide information regarding the treatment and procedure, you may consider the following matters: (A) Whether a person of ordinary intelligence and awareness in a position similar to that of Douglas Harriman could reasonably be expected to know of the risk or hazards inherent in such treatment or surgery \u2014 and surgery. (B) Whether Douglas Harriman knew of the risk or hazard inherent in such treatment or surgery. (C) Whether Douglas Harriman would have undergone the treatment and surgery regardless of the risk involved, or whether Douglas Harriman did not wish to be informed thereof, and (D) Whether it was reasonable for the physician to limit disclosure of information because such disclosure could be expected to adversely and substantially affect Douglas Harriman\u2019s condition.\nIt is true that jury instructions stating abstract legal propositions without any evidentiary basis should not be given. Davis v. Davis, 313 Ark. 549, 856 S.W.2d 284 (1993). As we stated earlier, there was sufficient evidence to submit the issue of informed consent to the jury; likewise, there was a sufficient evidentiary basis which supported the trial court\u2019s decision to give the related instructions on this issue.\nAffirmed.", "type": "majority", "author": "Jack Holt, Jr., Chief Justice." } ], "attorneys": [ "Mitchell, Williams, Selig, Gates & Woodyard, by; R.T. Beard, III, for appellant.", "Odom, Elliott, Winburn & Watson, by: Bobby Lee Odom, Russell B. Winburn, and Conrad T. Odom, for appellee." ], "corrections": "", "head_matter": "James ARONSON, M.D. v. Douglas HARRIMAN\n94-1218\n901 S.W.2d 832\nSupreme Court of Arkansas\nOpinion delivered July 17, 1995\n[Rehearing denied September 11, 1995.]\nMitchell, Williams, Selig, Gates & Woodyard, by; R.T. Beard, III, for appellant.\nOdom, Elliott, Winburn & Watson, by: Bobby Lee Odom, Russell B. Winburn, and Conrad T. Odom, for appellee." }, "file_name": "0359-01", "first_page_order": 409, "last_page_order": 426 }