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Arato v. Avedon (858 P.2d 598) 1993

Supreme Court of California

A physician's duty to disclose to a patient information material to the decision whether to undergo treatment is the central constituent of the legal doctrine known as "informed consent." In this case, we review the ruling of a divided Court of Appeal that, in recommending a course of chemotherapy and radiation treatment to a patient suffering from a virulent form of cancer, the treating physicians breached their duty to obtain the patient's informed consent by failing to disclose his statistical life expectancy….

Miklos Arato was a successful 42-year-old electrical contractor and part- time real estate developer when, early in 1980, his internist diagnosed a failing kidney. On July 21, 1980, in the course of surgery to remove the kidney, the operating surgeon detected a tumor on the "tail" or distal portion of Mr. Arato's pancreas. After Mrs. Arato gave her consent, portions of the pancreas were resected, or removed, along with the spleen and the diseased kidney. A follow-up pathological examination of the resected pancreatic tissue confirmed a malignancy. Concerned that the cancer could recur and might have infiltrated adjacent organs, Mr. Arato's surgeon referred him to a group of oncology practitioners for follow-up treatment.

During his initial visit to the oncologists, Mr. Arato filled out a multipage questionnaire routinely given new patients. Among the some 150 questions asked was whether patients "wish[ed] to be told the truth about [their] condition" or whether they wanted the physician to "bear the burden" for them. Mr. Arato checked the box indicating that he wished to be told the truth.

The oncologists discussed with Mr. and Mrs. Arato the advisability of a course of chemotherapy known as "F.A.M.," a treatment employing a combination of drugs which, when used in conjunction with radiation therapy, had shown promise in treating pancreatic cancer in experimental trials. The nature of the discussions between Mr. and Mrs. Arato and the treating physicians, and in particular the scope of the disclosures made to the patient by his doctors, was the subject of conflicting testimony at trial. By their own admission, however, neither the operating surgeon nor the treating oncologists specifically disclosed to the patient or his wife the high statistical mortality rate associated with pancreatic cancer.

Mr. Arato's oncologists determined that a course of F.A.M. chemotherapy was indicated for several reasons. According to their testimony, the high statistical mortality of pancreatic cancer is in part a function of what is by far the most common diagnostic scenario--the discovery of the malignancy well after it has metastasized to distant sites, spreading throughout the patient's body. As noted, in Mr. Arato's case, the tumor was comparatively localized, having been discovered in the tail of the pancreas by chance in the course of surgery to remove the diseased kidney.

Related to the "silent" character of pancreatic cancer is the fact that detection in such an advanced state usually means that the tumor cannot as a practical matter be removed, contributing to the high mortality rate. In Mr. Arato's case, however, the operating surgeon determined that it was possible to excise cleanly the tumorous portion of the pancreas and to leave a margin of about one-half centimeter around the surgical site, a margin that appeared clinically to be clear of cancer cells. Third, the mortality rate is somewhat lower, according to defense testimony, for pancreatic tumors located in the distal part of the organ than for those found in the main body. Finally, then-recent experimental studies on the use of F.A.M. chemotherapy in conjunction with therapeutic radiation treatments had shown promising response rates--on the order of several months of extended life--among pancreatic cancer patients.

Mr. Arato's treating physicians justified not disclosing statistical life expectancy data to their patient on disparate grounds. According to the testimony of his surgeon, Mr. Arato had exhibited great anxiety over his condition, so much so that his surgeon determined that it would have been medically inappropriate to disclose specific mortality rates. The patient's oncologists had a somewhat different explanation. As Dr. Melvin Avedon, his chief oncologist, put it, he believed that cancer patients in Mr. Arato's position "wanted to be told the truth, but did not want a cold shower." Along with the other treating physicians, Dr. Avedon testified that in his opinion, the direct and specific disclosure of extremely high mortality rates for malignancies such as pancreatic cancer might effectively deprive a patient of any hope of cure, a medically inadvisable state. Moreover, all of the treating physicians testified that statistical life expectancy data had little predictive value when applied to a particular patient with individualized symptoms, medical history, character traits and other variables.

According to the physicians' testimony, Mr. and Mrs. Arato were told at the outset of the treatment that most victims of pancreatic cancer die of the disease, that Mr. Arato was at "serious" or "great" risk of a recurrence and that, should the cancer return, his condition would be judged incurable. This information was given to the patient and his wife in the context of a series of verbal and behavioral cues designed to invite the patient or family member to follow up with more direct and difficult questions. Such follow-up questions, on the order of "how long do I have to live?," would have signaled to his doctors, according to Dr. Avedon's testimony, the patient's desire and ability to confront the fact of imminent mortality. In the judgment of his chief oncologist, Mr. Arato, although keenly interested in the clinical significance of the most minute symptom, studiously avoided confronting these ultimate issues; according to his doctors, neither Mr. Arato nor his wife ever asked for information concerning his life expectancy in more than 70 visits over a period of a year. Believing that they had disclosed information sufficient to enable him to make an informed decision whether to undergo chemotherapy, Mr. Arato's doctors concluded that their patient had as much information regarding his condition and prognosis as he wished.

Dr. Avedon also testified that he told Mr. Arato that the effectiveness of F.A.M. therapy was unproven in cases such as his, described its principal adverse side effects, and noted that one of the patient's options was not to undergo the treatment. In the event, Mr. Arato consented to the proposed course of chemotherapy and radiation, treatments that are prolonged, difficult and painful for cancer patients. Unfortunately, the treatment proved ineffective in arresting the spread of the malignancy. Although clinical tests showed him to be free of cancer in the several months following the beginning of the F.A.M. treatments, beginning in late March and into April of 1981, the clinical signs took an adverse turn. By late April, the doctors were convinced by the results of additional tests that the cancer had returned and was spreading. They advised the patient of their suspicions and discontinued chemotherapy. On July 25, 1981, a year and four days following surgery, Mr. Arato succumbed to the effects of pancreatic cancer.

Not long after his death, Mr. Arato's wife and two children brought this suit against the physicians who had treated their husband and father in his last days, including the surgeon who performed the pancreas resection and the oncologists who had recommended and administered the chemotherapy/radiation treatment. As presented to the jury, the gist of the lawsuit was the claim that in discussing with their patient the advisability of undergoing a course of chemotherapy and radiation, Mr. Arato's doctors had failed to disclose adequately the shortcomings of the proposed treatment in light of the diagnosis, and thus had failed to obtain the patient's informed consent. Specifically, plaintiffs contended that the doctors were aware that, because early detection is difficult and rare, pancreatic cancer is an especially virulent malignancy, one in which only 5 to 10 percent of those afflicted live for as long as five years, and that given the practically incurable nature of the disease, there was little chance Mr. Arato would live more than a short while, even if the proposed treatment proved effective.

Such mortality information, the complaint alleged--especially the statistical morbidity rate of pancreatic cancer--was material to Mr. Arato's decision whether to undergo postoperative treatment; had he known the bleak truth concerning his life expectancy, he would not have undergone the rigors of an unproven therapy, but would have chosen to live out his last days at peace with his wife and children, and arranging his business affairs. Instead, the complaint asserted, in the false hope that radiation and chemotherapy treatments could effect a cure--a hope born of the negligent failure of his physicians to disclose the probability of an early death--Mr. Arato failed to order his affairs in contemplation of his death, an omission that, according to the complaint, led eventually to the failure of his contracting business and to substantial real estate and tax losses following his death….

In the Court of Appeal's view, Mr. Arato's doctors had breached the duty to disclose to their patient information material to the decision whether to undergo the radiation and drug therapy. According to the Court of Appeal, because there are so many different cancers, the lethality of which varies dramatically, telling a patient that cancer might recur and would then be incurable, without providing at least some general information concerning the virulence of the particular cancer at issue as reflected in mortality tables, was "meaningless." In addition, the Court of Appeal reasoned that his physicians were under a duty to disclose numerical life expectancy information to Mr. Arato so that he and his wife might take timely measures to minimize or avoid the risks of financial loss resulting from his death….

The fount of the doctrine of informed consent in California is our decision of some 20 years ago in Cobbs v. Grant, an opinion by a unanimous court that built on several out-of-state decisions significantly broadening the scope and character of the physician's duty of disclosure in obtaining the patient's consent to treatment. In Cobbs v. Grant, we not only anchored much of the doctrine of informed consent in a theory of negligence liability, but also laid down four "postulates" as the foundation on which the physician's duty of disclosure rests….

Since Cobbs v. Grant, was decided, we have revisited the doctrine of informed consent. In Truman v. Thomas (1980), we held that the physician's duty of due care embraced disclosure of the material risks resulting from the patient's refusal to consent to a recommended treatment--in that case, a routine annual pap smear. In concluding that the trial court had erred reversibly in refusing to instruct the jury on the physician's duty of disclosure, we said that the doctrine of informed consent recognized in Cobbs v. Grant, was imposed "so that patients might meaningfully exercise their right to make decisions about their own bodies." (Truman v. Thomas.)

Our opinion also stressed the paramount role of the trier of fact in informed consent cases. We recognized, for example, that questions such as whether the danger posed by a failure to disclose a particular risk is remote, whether the risk was or was not commonly known, and whether circumstances unique to a given case supported a duty of disclosure were matters for the jury to decide. We accordingly declined to hold that as a matter of law the physician owed no duty to make a given disclosure to the patient. That question, we concluded, was one for the jury to decide….

We recently returned to the scope of a physician's duty of disclosure in Moore v. Regents of University of California. Although the chief focus of Moore was whether the nonconsensual use of human cells in medical research supported a patient's action seeking to impose on health professionals liability for conversion, our opinion reaffirmed the "well-established principles" enunciated in Cobbs v. Grant. It was on that foundation that we held "a physician must disclose personal interests unrelated to the patient's health, whether research or economic, that may affect the physician's personal judgment . . .."

Together with companion decisions in other jurisdictions, Cobbs v. Grant, is one of the epochal opinions in the legal recognition of the medical patient's protectible interest in autonomous decisionmaking. After more than a generation of experience with the judicially broadened duty of physician disclosure, the accumulated medicolegal comment on the subject of informed consent is both large and discordant. Those critics writing under the banner of "patient autonomy" insist that the practical administration of the doctrine has been thwarted by a failure of judicial nerve and an unremitting hostility to its underlying spirit by the medical profession. Others, equally earnest, assert that the doctrine misapprehends the realities of patient care and enshrines moral ideals in the place of workable rules.

Despite the critical standoff between these extremes of "patient sovereignty" and "medical paternalism," indications are that the Cobbs-era decisions helped effect a revolution in attitudes among patients and physicians alike regarding the desirability of frank and open disclosure of relevant medical information….

In our view … juries ought to take into account in deciding whether a challenged disclosure was reasonably sufficient to convey to the patient information material to an informed treatment decision. The contexts and clinical settings in which physician and patient interact and exchange information material to therapeutic decisions are so multifarious, the informational needs and degree of dependency of individual patients so various, and the professional relationship itself such an intimate and irreducibly judgment-laden one, that we believe it is unwise to require as a matter of law that a particular species of information be disclosed. We agree … that in administering the doctrine of informed consent, "each patient presents a separate problem, that the patient's mental and emotional condition is important and in certain cases may be crucial, and that in discussing the element of risk a certain amount of discretion must be employed consistent with the full disclosure of facts necessary to an informed consent."

Our opinion in Cobbs v. Grant, supra, recognized these "common practicalities" of medical treatment which, we said, make the ideal of "full disclosure" a "facile expression[]." ( at p. 244.) Eschewing both a "minicourse in medical science" and a duty to discuss "the relatively minor risks inherent in common procedures," we identified the touchstone of the physician's duty of disclosure in the patient's need for "adequate information to enable an intelligent choice," a peculiarly fact-bound assessment which juries are especially well-suited to make.

This sensitivity to context seems all the more appropriate in the case of life expectancy projections for cancer patients based on statistical samples. Without exception, the testimony of every physician- witness at trial confirmed what is evident even to a nonprofessional: statistical morbidity values derived from the experience of population groups are inherently unreliable and offer little assurance regarding the fate of the individual patient; indeed, to assume that such data are conclusive in themselves smacks of a refusal to explore treatment alternatives and the medical abdication of the patient's well-being. Certainly the jury here heard evidence of articulable grounds for the conclusion that the particular features of Mr. Arato's case distinguished it from the typical population of pancreatic cancer sufferers and their dismal statistical probabilities--a fact plaintiffs impliedly acknowledged at trial in conceding that the oncologic referral of Mr. Arato and ensuing chemotherapy were not in themselves medically negligent.

In declining to endorse the mandatory disclosure of life expectancy probabilities, we do not mean to signal a retreat from the patient-based standard of disclosure explicitly adopted in Cobbs v. Grant. We reaffirm the view taken in Cobbs that, because the "weighing of these risks [i.e., those inherent in a proposed procedure] against the individual subjective fears and hopes of the patient is not an expert skill," the test "for determining whether a potential peril must be divulged is its materiality to the patient's decision." In reaffirming the appropriateness of that standard, we can conceive of no trier of fact more suitable than lay jurors to pronounce judgment on those uniquely human and necessarily situational ingredients that contribute to a specific doctor-patient exchange of information relevant to treatment decisions; certainly this is not territory in which appellate courts can usefully issue "bright line" guides.

Rather than mandate the disclosure of specific information as a matter of law, the better rule is to instruct the jury that a physician is under a legal duty to disclose to the patient all material information--that is, "information which the physician knows or should know would be regarded as significant by a reasonable person in the patient's position when deciding to accept or reject a recommended medical procedure"--needed to make an informed decision regarding a proposed treatment….

We decline to intrude further, either on the subtleties of the physician- patient relationship or in the resolution of claims that the physician's duty of disclosure was breached, by requiring the disclosure of information that may or may not be indicated in a given treatment context. Instead, we leave the ultimate judgment as to the factual adequacy of a challenged disclosure to the venerable American jury, operating under legal instructions such as those given here and subject to the persuasive force of trial advocacy.

Here, the evidence was more than sufficient to support the jury's finding that defendants had reasonably disclosed to Mr. Arato information material to his decision whether to undergo the proposed chemotherapy/radiation treatment….

In addition to their claim that his physicians were required to disclose statistical life expectancy data to Mr. Arato to enable him to reach an informed treatment decision, plaintiffs also contend that defendants should have disclosed such data because it was material to the patient's nonmedical interests, that is, Mr. Arato's business and investment affairs and the potential adverse impact of his death upon them. In support of this proposition, plaintiffs rely on the following statement in Bowman v. McPheeters (1947): "As fiduciaries it was the duty of defendants [physicians] to make a full and fair disclosure to plaintiff of all facts which materially affected his rights and interests." Plaintiffs contend that since Mr. Arato's contracting and real estate affairs would suffer if he failed to make timely changes in estate planning in contemplation of imminent death, and since these matters are among "his rights and interests," his physicians were under a legal duty to disclose all material facts that might affect them, including statistical life expectancy information. We reject the claim as one founded on a premise that is not recognized in California.

The short answer to plaintiffs' claim is our statement in Moore, that a "physician is not the patient's financial adviser." From its inception, the rationale behind the disclosure requirement implementing the doctrine of informed consent has been to protect the patient's freedom to "exercise . . . control over [one's] own body" by directing the course of medical treatment…. Cobbs v. Grant

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