Bloskas v. Murray (46 P.2d 907) 1982

…In March 1973 Mr. Bloskas fractured his right ankle when he was thrown from a horse. Dr. Cloyd Arford performed surgery to reduce the fracture and inserted a screw into the ankle. Severe arthritis thereafter developed in the joint and Dr. Arford recommended an ankle fusion. Mr. Bloskas decided to consult another orthopedic surgeon before agreeing to the fusion, and the plaintiffs met with the defendant, Dr. Murray, on March 8, 1974. Dr. Murray agreed with Dr. Arford's recommendation but suggested first removing the screw to alleviate the pain. The screw was removed, and although that procedure provided temporary relief, the pain returned and became progressively worse. After consulting again with Dr. Murray on September 18, 1974, Mr. Bloskas consented to a total ankle replacement which Dr. Murray performed on October 16, 1974. Unfortunately, after the implantation of the artificial ankle, the ankle and surrounding tissue became infected. When treatment with antibiotics proved unsuccessful, Dr. Murray removed the artificial ankle and later made four attempts to fuse the ankle, all of which failed because of persisting infection. Mr. Bloskas consulted another orthopedic surgeon, Dr. Jerome Wiedel, who on July 19, 1976, amputated Mr. Bloskas' right leg below the knee.

At trial Mr. Bloskas testified that at no time prior to the ankle replacement did Dr. Murray inform him of any risks associated with the surgery, nor did he advise him that the long-range effects of the procedure were unknown. Expert witnesses called by the plaintiffs testified that amputation resulting from infection is always a risk in ankle replacement surgery. According to these experts a reasonable physician practicing orthopedic surgery would advise a patient not only that the long-range effects of the replacement procedure are unknown but also that the removal of an artificial joint increases the risk of infection and makes further attempts at fusion more difficult, with an enhanced risk of amputation.

Dr. Murray testified that he had never personally performed an ankle replacement prior to the one attempted on Mr. Bloskas and had not developed a routine with respect to ankle implants. He admitted that he had no independent recollection of informing Mr. Bloskas of any risks or dangers associated with the surgery. Over the plaintiffs' objection he was permitted to testify that, when performing joint replacement surgery on the knees and hips, he routinely advised patients of the risks of infection and of the loosening of the implanted devices. If either of these conditions developed, then, according to the defendant, the removal of the implant and the fusion of the joint would be necessary. Although Dr. Murray acknowledged that the risks vary depending on the precise joint being replaced, it was his opinion that an advisement about the risks of infection and implant loosening would be in conformity with the community standards of practice in orthopedic surgery with respect to ankle replacements. Another orthopedic surgeon, Dr. Murray's partner, confirmed that advising an ankle replacement patient of the risks of infection and loosening would comport with community standards of informed consent.

The evidence on the negligent misrepresentation claim related to the plaintiffs' discussion with Dr. Murray on September 18, 1974. According to Mr. Bloskas, in the course of discussing an ankle fusion with Dr. Murray, the doctor informed him that he also could perform a total ankle replacement. Mr. Bloskas testified that Dr. Murray said, "I performed three of these, and they have all been successful." When he asked Dr. Murray what would happen if the ankle replacement did not work, Dr. Murray replied, "The worst that could happen is that we will just take that out and fuse it." When Mr. and Mrs. Bloskas expressed concern about the risk of amputation, Dr. Murray told them that it was "not a problem" and "not something they should worry about." After the doctor explained the method of implanting the artificial ankle, the expected range of movement after its implantation, and the advantages of ankle replacement over ankle fusion, Mr. Bloskas agreed to submit to the ankle replacement surgery….

The plaintiffs argue that the admission into evidence of Dr. Murray's habit or custom of routinely advising patients about to undergo hip or knee replacement surgery of the risks of infection and loosening of the artificial joint constituted error. We disagree.

Evidence regarding a person's habit or routine practice traditionally has been admissible as relevant to whether the person acted in conformity with the habit or routine practice. "In case of doubt as to what a person has done, it may be considered more probable that he has done what he has been in the habit of doing, than that he acted otherwise." Denver Tramway Co. v. Owens (1894). As is the case with any relevant evidence, the trial court has the discretion to exclude evidence of a routine practice if its probative value is substantially outweighed by the danger of unfair prejudice or confusion of the issues, or if it likely would mislead the jury….

In this case Dr. Murray admitted that he had no independent recollection of advising Mr. Bloskas of the risks of ankle replacement surgery. His testimony about his routine practice was not offered or admitted as substantive evidence of the community standard of informed consent for ankle replacement surgery. Rather, it was admitted as circumstantial evidence that, consistent with Dr. Murray's routine practice in other types of joint replacement surgery, he did give Mr. Bloskas a pre-surgical warning of risks. Considering the limited probative value of this testimony, the danger of the jury being prejudiced, confused or misled by this evidence was minimal. Under these circumstances we cannot say that the admission of this evidence constituted reversible error….

What is critical to the physician's duty to warn is not whether the risk is common to all medical or surgical procedures of the same general class, nor whether the risk is unique to the particular procedure in question, nor whether its origin lies in the medical condition of the patient or in the execution of the procedure or both. Rather, what is determinative of the physician's duty to warn is the significance of the risk to the patient's informed decision to submit to the medical procedure in question. If the physician, as a reasonable medical practitioner, knew or should have known that an awareness of a particular risk would be a significant factor in the patient's decision to submit to a particular surgical procedure, then the risk is a substantial one which the physician must communicate to the patient.

In this case the trial court described the physician's duty to warn as extending to the nature of the surgery, the alternative treatment available, and the substantial risks arising from the surgery or alternative treatment. By separate instruction the jury was basically informed that substantial risks are those which a physician knows or ought to know would be significant to a patient's decision whether or not to submit to a surgical procedure. These instructions adequately conveyed to the jury the principles applicable to the plaintiffs' claim based on lack of informed consent. We therefore agree with the Court of Appeals' conclusion that no further instructions were required on this facet of the case.

We turn now to the trial court's refusal to instruct the jury on negligent misrepresentation. The Court of Appeals affirmed the trial court's rejection of the tendered instruction on negligent misrepresentation because "any actions by defendant which would constitute negligent misrepresentation would fall under the doctrines of informed consent or medical malpractice . . . ." In our view, the plaintiffs' claim for negligent misrepresentation was not subsumed by the doctrines of informed consent or medical malpractice and, since the evidence presented at the trial established a prima facie case of negligent misrepresentation, the trial court erred in failing to instruct the jury on that theory of liability.

The historical basis of the doctrine of informed consent is the physician's avoidance of liability for battery resulting from the performance of a medical or surgical procedure on a patient. A physician who operates on a patient's body without the patient's consent, or who performs an operation different from that to which the patient consented, commits a battery and is liable for damages resulting therefrom, notwithstanding the exercise of reasonable care in performing the operative procedure….

The tort of negligent misrepresentation provides a remedy for false information negligently given a person who relies to his detriment thereon. Section 311 of the Restatement (Second) of Torts sets forth the elements of the claim: "Negligent Misrepresentation Involving Risk of Physical Harm.

"(1) One who negligently gives false information to another is subject to liability for physical harm caused by action taken by the other in reasonable reliance upon such information, where such harm results (a) to the other, or (b) to such third persons as the actor should expect to be put in peril by the action taken.

"(2) Such negligence may consist of failure to exercise reasonable care (a) in ascertaining the accuracy of the information, or (b) in the manner in which it is communicated."

Although not depending upon the existence of a professional relationship nor upon expert testimony establishing a professional standard of care, the liability principles of negligent misrepresentation find particular application in those situations where "it is part of the actor's business or profession to give information upon which the safety of the recipient or a third person depends." Restatement (Second) of Torts § 311, Comment a.

The doctrine of negligent misrepresentation has been recognized by Colorado courts in cases involving money losses in business transactions, e.g., Fitzgerald v. Edelen, (1980); First National Bank in Lamar v. Collins, (1980), and we see no reason not to extend it to representations made in the course of the professional relationship existing here. A patient often has little choice but to rely upon the representations and assurances of his physician in matters of personal medical concern. That a physician may have complied with professional community standards of disclosure for a particular procedure is not to say that the physician should not be liable for negligently misrepresenting facts which are extrinsic to his duty to warn but which nonetheless influence the patient's decision about treatment. Nor does it follow that merely because a physician may apply the degree of knowledge, skill and care as is used by other physicians practicing the same specialty, the physician thereby has discharged his full responsibility to the patient. In short, we know of no reason to deny relief when a physician negligently conveys false information to the patient, and the patient relies upon the information to his physical harm.

Turning to this case, which was tried solely on the liability theories of lack of informed consent and negligent misrepresentation, it is apparent that there was sufficient evidence in the record to submit the issue of negligent misrepresentation to the jury and that the plaintiffs could have prevailed on that theory notwithstanding the jury's resolution of the informed consent issue. The record establishes that Dr. Murray told Mr. Bloskas that he, as a member of his medical group, had participated in ankle replacement surgery when in fact he had never previously performed such an operation. Further, there is evidence that Mr. Bloskas consented to the ankle replacement only after Dr. Murray assured him and his wife that their concern about the possibility of amputation was unfounded. The jury could well have concluded that, because amputation was not a "substantial risk" of the ankle replacement procedure, Dr. Murray had not breached his legal duty to his patient under the informed consent theory of liability. However, notwithstanding this determination, there was sufficient evidence for the jury to conclude that Dr. Murray negligently misrepresented his prior experience in ankle replacement surgery and the non-risk of amputation from such a surgery, and that Mr. Bloskas reasonably relied upon these representations in consenting to the ankle replacement operation which ultimately led to the loss of his leg. Accordingly, a new trial is required on the plaintiffs' claim for negligent misrepresentation….