Moore v. Preventive Medicine Medical Group (178 Cal. App. 3d 728) 1986

…On November 10, 1977, Moore went to the PMMG for an examination. He did not have any specific complaints but had noticed a slight blurring of vision. He was given a battery of tests. At the end of the examination, he made an appointment for a followup consultation.

Moore returned to the facilities on December 8, 1977. He saw an internist, Dr. Mason. Dr. Mason went over the results of the previous examination. During this time, Moore told the doctor about a spot he had noticed on his ear lobe. He asked the doctor if it was anything to be concerned about. Dr. Mason looked at the spot and felt it. The doctor observed it was a very small skin lesion. It was about two to three millimeters in size. He told Moore it was a mole. He strongly recommended he see a specialist. He further told him all pigmented skin lesions are suspicious in nature and until he got it removed or studied microscopically, its exact nature wouldn't be known.

Moore did not immediately heed Mason's advice. However, on April 20, 1978, he went to see Dr. David, a dermatologist. His central concern was a rash he had on the back of his leg which was causing him trouble. While he was at the doctor's office, Moore told him about the spot on his ear. The doctor look at the spot and told Moore it should be removed immediately for a biopsy. The doctor removed it on April 24, 1978.

David sent the biopsy specimen to a lab. It was put on a slide and sent back to him. When he examined it, it looked cancerous. He sent it to a pathologist for a consultation. The pathologist agreed with David's diagnosis.

David discussed the matter with Dr. Wagner, a surgeon. He sent him the pathologist's report and the slide of the mole. David discussed the matter with Moore. He told him the biopsy came back and it was malignant melanoma. The doctor referred him to Wagner. Moore went to see Wagner about two days after this visit.

Wagner first saw Moore on May 15, 1978. Based on the pathology report and his evaluation of Moore, Wagner determined surgery was necessary. He determined he would have to remove part of Moore's left ear, along with the glands in front of the ear and in the upper neck on the same side. He also decided to remove the lymph nodes because of fear the cancer spread to them.

Wagner operated on May 25, 1978. An analysis of the removed tissues showed no evidence of any melanoma. As a result of the surgery, the lower third of Moore's left ear was removed and there is a slight depression right below the cheek. He suffers from numbness on the left side of his face and discoloration in his chin and cheek. When Moore is extremely tired, his left eye and the corner of his mouth will droop slightly. He is embarrassed by his physical appearance.

Due to his appearance, Moore has not attempted to do any modeling, commercials, or acting since 1980….

PMMG contends the trial court erred in giving the jury BAJI No. 6.11.5. PMMG argues the instruction was erroneously given since by its terms it applies to doctors who provide diagnosis or treatment, not to doctors such as Mason who simply refer patients to specialists. Moreover, it was a question of fact whether Mason's advice to Moore was adequate, yet by instructing the jury in this manner, the court implicitly instructed them Mason had an affirmative duty to tell Moore about the potential cancer and the risks involved if he failed to see a specialist about the mole….

In Truman v. Thomas (1980) 27 Cal.3d, the Supreme Court established what has been termed the "informed refusal" doctrine. This doctrine describes a physician's responsibilities to a patient when that patient refuses diagnostic testing before a diagnosis is made and treatment recommended. In a nutshell, a doctor has a duty to disclose all material information to his patient which will enable that patient to make an informed decision regarding the taking or refusal to take such a test.

In Truman, the respondent was the Truman's family doctor. He saw the appellant frequently for a six-year period. During that period, the doctor on several occasions informed Truman she should have a pap smear. She refused to take the test since she could not afford the cost. The doctor never informed Truman of the potential consequences of failing to take a pap smear, i.e., fatal cervical cancer. In April 1969, Truman contacted a urologist. Based on his examination, he made an appointment for her to see a gynecologist. The gynecologist subsequently discovered a cancerous tumor had largely replaced her cervix. Although treatment was attempted, Truman died as a result of this cancer. Her children brought a wrongful death action against the doctor arguing the failure of the doctor to give a pap smear proximately caused Truman's death. In instructing the jury, the trial court refused to give the appellants' proposed instruction based on the theory of informed refusal. The jury returned a verdict finding Thomas free of any negligence. The appellate court affirmed.

The Supreme Court, in reversing the decision, concluded a jury could properly find Thomas breached his duty of care when he failed to inform Truman of the consequences of failing to take a pap smear and the appellants' proposed instruction should have been given. In describing a physician's duty of care in this context, the court stated: ". . . [a] physician recommending a risk-free procedure [whether for treatment or diagnosis] may safely forego discussion beyond that necessary to conform to competent medical practice and to obtain the patient's consent. [Citation omitted.] If a patient indicates that he or she is going to decline the risk-free test or treatment, then the doctor has the additional duty of advising of all material risks of which a reasonable person would want to be informed before deciding not to undergo the procedure." (Truman v. Thomas).

In making its analysis, the court relied substantially on the principles established in Cobbs v. Grant (1972) 8 Cal.3d 229, the case in which the court established the "informed consent" doctrine. In this case, the court held "as an integral part of the physician's overall obligation to the patient there is a duty of reasonable disclosure of the available choices with respect to proposed therapy and of the dangers inherently and potentially involved in each." This holding was based on four essential postulates. First, the knowledge of patient and doctor are not in parity. Second, an adult of sound mind exercises control over his own body and, in exercising this control, has the right to determine whether or not to undergo medical treatment. Third, a patient's consent to a proposed treatment must be an informed one. Fourth, due to the nature of the physician-patient relationship, the physician has an obligation to the patient which transcends arms-length transactions. Based on these postulates, a physician has a duty to inform his patient of all information necessary to make a knowledgeable decision concerning a proposed treatment. Moreover, the court refused to measure the scope of the duty to inform by a community professional standard. "[The] test for determining whether a potential peril must be divulged is its materiality to the patient's decision.…

We believe the rationale underlying the holdings in Cobbs and Truman compels us to conclude Mason had a duty to disclose to Moore all material information which would enable Moore to make an informed decision whether to see the specialist or not. Such material information included the risk to Moore if he was not examined by the specialist. Without knowledge of such risks, Moore was not in a position to make an informed decision concerning the doctor's recommendation. The fact Mason was not going to do the actual diagnosis underscores the importance of relaying this information to Moore at the time of his visit. Mason would not learn whether Moore went to the specialist or refused to heed his advice. Indeed, Moore in essence rejected the testing proposed by Mason when he failed to go see the specialist as recommended by Mason. However, at that point, Mason was no longer in a position to impress upon Moore the significance of his decision not to take his advice. Thus, although the case at bar is factually distinguishable from Truman, we fail to see how such distinction should be of legal significance. Mason failed to disclose to Moore the risk he faced if he failed to have his mole properly tested. Yet, Mason knew he would not have another opportunity to discuss with Moore the seriousness of this decision. Thus, it was incumbent on Mason to provide Moore this information during his visit so Moore could make an informed decision. Clearly if Mason had had the capability to conduct a diagnosis on Moore and Moore had refused, the principles of Truman would have applied. We do not believe a different result should occur simply because a referring physician is not in a position to ever learn whether a proposed test was refused….

We agree with PMMG's contention that by instructing the jury in this manner, the jury was obligated to find Mason negligent if it found Mason had failed to disclose to Moore all material information necessary to make an informed decision including the risk to Moore if he failed to undergo the proposed testing. However, as discussed above, we believe such a result was an appropriate one. The failure of Mason to disclose material information to Moore rendered Mason liable for any injuries legally caused by Moore's subsequent refusal to submit to testing. It was of course a factual matter for the jury to determine whether Mason had indeed failed to disclose material information. However, no recourse to the standards of practice among the medical profession was required….

The judgment is reduced by $ 18,000 -- the amount the jury awarded Moore for the future loss of earnings in the real estate field. PMMG is also given credit for the amount of Dr. Mason's settlement ($ 5,000). In all other respects, the judgment is affirmed….