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Law School Case Brief

Miller v. Kennedy - 11 Wash. App. 272, 522 P.2d 852 (1974)

Rule:

The patient is endowed with the right to know each hazard which the usual person would utilize in reaching his decision. When a reasonable person in the patient's position probably would attach significance to the specific risk in deciding on treatment, the risk is material and must be disclosed. 

Facts:

Plaintiff patient brought a medical malpractice suit against defendant physician after complications resulted from a biopsy. Following a jury verdict in favor of the physician, the trial court entered a judgment in favor of the physician denied plaintiff's motion for a new trial.  Plaintiff appealed, arguing that the jury should have been instructed on res ipsa loquitur and that the failure to inform plaintiff of the risks was an assault or a negligent breach of duty.

Issue:

Was there negligence when the attending physician failed to advise his patient of the risk of the loss of the kidney nor explain the alternative ways of performing biopsies? 

Answer:

Yes

Conclusion:

The court reversed and remanded, holding that an instruction should have been given on res ipsa loquitur because expert medical witnesses testified that the injury would not have happened "but for" some negligent action on the part of the treating physician. Further, the court held that the instructions were misleading because they failed to make clear that the duty to inform of risks inherent in the treatment existed as a matter of law and that the plaintiff must prove that a reasonable person in the plaintiff's position would not have consented.

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