NO. 22402
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAII
ESTER G. RAMOS, Plaintiff-Appellant, v.
JON K. LATTIMER, M.D., Defendant-Appellee
APPEAL FROM THE THIRD CIRCUIT COURT
(CIV. NO. 96-029K)
MEMORANDUM OPINION
(By: Burns, C.J., Watanabe and Lim, JJ.)
This is a medical malpractice case arising out of a ureteroscopy, a surgical procedure to remove a kidney stone.
Plaintiff-Appellant Ester G. Ramos (Ramos) appeals the circuit court's March 3, 1999 Judgment in favor of Defendant-Appellee Jon K. Lattimer, M.D. (Dr. Lattimer). Ramos argues the following syllogism: (1) there is uncontradicted evidence that (a) the risk of laceration of the ureter in a ureteroscopy was between eight percent (8%) and nine percent (9%) and (b) the risks for her were higher because the stone was located within the kidney itself; (2) consent is not informed consent when there is no disclosure of the relevant percentage of risk; (3) there is no evidence and no finding that Dr. Lattimer disclosed to Ramos the percentage of risk of a laceration to her ureter during the ureteroscopy procedure; and (4) therefore, the consent given by Ramos was not informed consent. We affirm the March 3, 1999 Judgment.
BACKGROUND
A nonjury trial was held on November 18, 19, and 20, 1998. On December 16, 1998, the circuit court entered its Findings of Fact, Conclusions of Law and Order stating, in relevant part, as follows:
FINDINGS OF FACT
. . . .
Introduction
1. [Ramos], aged 51 at the time of trial, is a registered nurse who by 1992, had approximately twenty years of nursing experience, having previously obtained a Bachelor's of Science degree in nursing from the University of Hawaii [Hawaii] and
having worked at three hospitals in California which included work in medical-surgical and ICU units. [Ramos] also worked as a
public health nurse in Los Angeles County, worked in [sic] Kona Hospital, operated a nursing care home, and was the executive director of the Hospice of Kona. . . .
2. On April 29, 1990, [Ramos] was admitted to the
emergency room at Humana Hospital, Huntington Beach, California, with a fever of 105 degrees, complaining of nausea, vomiting, and right flank pain. At that time, [Ramos] disclosed a history of
past urinary tract infections. An intravenous pyelogram ("IVP")(images the anatomy and function of the kidney, ureter, and bladder) disclosed a right ureteral calculus (stone) at the right ureteropelvic junction ("UPJ"). . . .
3. James Brinton, M.D., a urologist, diagnosed [Ramos'] condition as acute pyelonephristis (urine in the kidney) and performed the surgical procedure called cystoscopy on April 30, 1990, which required general anesthesia. Dr. Brinton manipulated the stone and placed a double J stent in the right kidney to allow for the passage of the urine out of the kidney into the
bladder. . . .
4. [Ramos] continued to see Dr. Brinton for her kidney stone through the end of May 1991, which included periods of continuing right flank pain (05-30-91). Dr. Brinton discussed with [Ramos] the removal of the stone with a procedure called Extracorporeal Shock Wave Lithotripsy("ESWL"). . . .
5. According to Dr. Brinton, [Ramos] went as far as scheduling the ESWL procedure but she subsequently canceled it. . . .
6. [Ramos] testified that two days prior to the scheduled ESWL procedure, she found out that her medical insurance would not pay for it. . . .
7. In July of 1991, [Ramos] moved back to Hawaii
[Hawaii] and by the spring of 1992, she was prompted to seek
medical attention for her continuing flank pain and because she
was experiencing tiredness and flu-like symptoms. . . .
8. [Ramos] was living in Kona and had asked her
pharmacist about the best urologist she could see for her problem and was referred Jon K. Lattimer, M.D. (hereinafter referred to as "Dr. Lattimer").
9. Dr. Lattimer obtained his undergraduate degree from Dartmouth in 1973 and his medical degree from Columbia University
in 1977. He did a two year residency at the University of Hawaii [Hawaii] and continued his residency at Columbia University from 1981 to 1983 where he was Chief Resident of [Urology] at Presbyterian Hospital. He was appointed as Assistant Professor of Surgery and the Chief of the Department of Urology at the
University of Florida and used ureteroscopy for the three years
that he was there. . . .
10. Dr. Lattimer obtained his board certification in
urology in 1984 and was re-certified in 1995. . . .
11. In 1988, Dr. Lattimer moved to Kona, Hawaii [Hawaii], and started a private urology practice. He has treated approximately 2000 patients with kidney stones. He has used ureteroscopy to treat kidney stones in 570 cases. Prior to
treating [Ramos], he had used ureteroscopy in 120 cases. After [Ramos], he used ureteroscopy in 450 cases. Of those cases, he
has not had any significant complications with the ureteroscopic procedure, except for the ureteroscopy that was conducted on [Ramos]. . . .
. . . .
13. [Ramos] first saw Dr. Lattimer on May 21, 1992, with complaints of intermittent right flank pain, possibly caused by a right renal stone which was diagnosed earlier by Dr. Brinton. . . .
14. Dr. Lattimer's course of treatment included removal of the stone by ureteroscopy. During the procedure, the ureter was lacerated and Dr. Lattimer conducted open surgery to remove the stone and repair the laceration. . . .
. . . .
22. [Ramos] contends that Dr. Lattimer fell below the community standard of care of urologists in his treatment based on three specific theories: (1) that ESWL was the only proper procedure for the removal of her renal stone and Dr. Lattimer's
use of ureteroscopy was the wrong procedure; (2) that Dr. Lattimer failed to give her informed consent for the ureteroscopy
procedure; and (3) that Dr. Lattimer used poor technique in performing the ureteroscopy which resulted in the
laceration. . . .
The Choice of Ureteroscopy versus ESWL
23. It is undisputed that in 1992, there were four methods of treating a kidney stone: (1) ESWL, (2) ureteroscopy; (3) percutaneous nephrolithotomy; and (4) open nephrolithotomy. . . .
24. At the time [Ramos] was seen by Dr. Lattimer in 1992, ESWL and percutaneous nephrolithotomy were not available in Kona
nor anywhere else on the Island of Hawaii [Hawaii] since the necessary medical and radiological equipment were not available. . . .
25. Of the four procedures, ESWL is the least invasive, ureteroscopy is the next least invasive, percutaneous nephrolithotomy is the next, and open nephrolithotomy is the most invasive. Open nephrolithotomy is usually the last option since
it is the most invasive procedure. . . .
. . . .
30. Ureteroscopy is a surgical procedure whereby a scope
is passed through the urethra, into the bladder, up through the ureter, reaching to the kidney if necessary. Once the stone is located, an EHL (electrohydraulic lithotripsy) probe is used which fires an electrical spark which is meant to fragment the stone and
a basket device may be used to take out stone fragments. . . .
. . . .
32. The main risk of ureteroscopy includes laceration or perforation of the ureter or kidney. . . .
33. When [Ramos] saw Dr. Lattimer for the first time on
May 21, 1992, she presented with [sic] multiple problems which included hypertension, a fibroid uterus, a dropped bladder,
urinary tract infection, gall bladder stones, a right kidney
stone, and right flank pain. . . .
34. Laboratory testing confirmed a current urinary tract infection for [Ramos]. . . .
35. Dr. Lattimer did not have the medical records or the IVPs taken by Dr. Brinton but obtained his own IVPs of [Ramos] on June 1, 1992, which confirmed the presence of a calculus measuring 1.0 centimeter by 1.2 centimeters located in the lower segment of the bi-fid pelvis of her right kidney and an enlarged uterus indenting the bladder. The consultive opinion of the IVP was a calcified stone in the right kidney with associated hydroureteronephrosis. . . .
36. On June 15, 1992, [Ramos] met with Dr. Lattimer to review the findings of the IVP and to discuss the treatment for her right kidney stone. . . .
. . . .
38. At the June 15, 1992 visit, Dr. Lattimer discussed
with [Ramos] the four options for treating her kidney stone which
were: (1) ESWL; (2) ureteroscopy; (3) percutaneous
nephrolithotomy; and (4) open nephrolithotomy. Dr. Lattimer also explained how each procedure was done and the risk and
complications of each procedure. . . .
39. Dr. Lattimer had a standard procedure for explaining
the four alternative methods of treating a kidney stone and the
pros and cons of each method and [Ramos] received the same explanation. . . .
. . . .
41. Dr. Lattimer also explained to [Ramos] about the ureteroscopic procedure, that it was an invasive procedure, that a scope was placed through the urethra, into the bladder and into
the ureter, that a balloon could be used to dilate the ureter,
that a guidewire would be used and a lithotripsy probe would also
be used to fragment the stone. Dr. Lattimer also explained the risks and complications of the ureteroscopic procedure which included perforation, tearing, scarring, bleeding, pain, and infection. . . .
42. The location of the stone in [Ramos'] right kidney was not a contraindication to the endoscopic approach but made it technically more difficult. . . .
. . . .
45. Dr. Lattimer's Personal History and Physical
Examination record of [Ramos] which was dictated on June 16, 1992, states in relevant part that "[t]he alternatives risks and complications of surgery were fully explained to and accepted by
the patient." . . .
46. A consent form signed by [Ramos] on June 22, 1992,
also stated, among other matters, that Dr. Lattimer had informed
her of the "alternative forms of treatment, including non-
treatment, available." . . .
. . . .
51. [Ramos] was concerned about who was going to follow
her after her procedure was done because Dr. Lattimer had told her [that] he would not be able to be her urologist if she had ESWL in Honolulu. . . .
52. Dr. Lattimer explained that the ease of performing ureteroscopy depended on the size of the patient's ureter and the IVPs showed that the size and the lack of dips and curves in [Ramos'] ureter made her a good candidate for ureteroscopy. . . .
53. [Ramos] testified that it was her impression that Dr. Lattimer favored ureteroscopy for her. . . .
. . . .
61. On July 14, 1992, Dr. Lattimer performed ureteroscopy
on [Ramos] to remove her kidney stone and during the procedure he
found that [Ramos] had a stricture at the infundibulum of her
right kidney.
. . . .
Informed Consent
79. On June 15, 1992, Dr. Lattimer met with [Ramos] to review his findings on the IVPs. At this office visit, Dr.
Lattimer explained to [Ramos] that her IVPs confirmed there was
11 x 10 millimeter stone in her right kidney and told her about
the four procedures and options she had for removal of the
stone. . . .
80. Dr. Lattimer also explained to [Ramos] about the
nature and character of each procedure and generally how each procedure was done. . . .
81. Dr. Lattimer explained to [Ramos] about the recognized possible risks and complications associated with each procedure, including the risks and complications associated with ureteroscopy which included perforation, tearing, scarring, bleeding, pain, and infection. . . .
. . . .
83. [Ramos] testified that she "did not recall" Dr.
Lattimer explaining to her about the risk of laceration or perforation associated with ureteroscopy. . . .
84. Dr. Lattimer's handwritten progress notes of June 15, 1992 for [Ramos] states in relevant part: "Reviewed IVP c[with]
pt.: 11 x 10 mm r [right] pelvic stone; ? distal stone; [r]eviewed films, alternatives, risks & complications c[with] pt.
Ureteroscopy elected." . . .
85. [Ramos'] ureteroscopy procedure was scheduled for June 25, 1992. . . .
86. On the day after he spoke with [Ramos] during the
office visit of June 15, 1992. Dr. Lattimer documented his explanation to [Ramos] about the alternatives, risks, and complications of the elected ureteroscopy in a document entitled Personal History and Physical Examination, which was dictated on June 16, 1992, and stated in relevant part that "[t]he
alternatives, risks and complications of surgery were fully explained to and accepted by the patient." . . .
87. A consent form, entitled Consent to Operation, Post Operative Care, Medical Treatment, Anesthesia, or Other Procedure, signed by [Ramos] on June 22, 1992, states in relevant part: (1) that Dr. Lattimer was authorized to treat [Ramos'] stone in
her right ureter and that the condition had been explained to her; (2) that the procedure of ureteroscopy and lithotripsy were to be performed on her, which in lay terms meant to view inside her
ureter with a telescope to break up the stone, and that this procedure was explained to her; (3) that [Ramos] recognized that during the operation, unforeseen conditions may necessitate procedures necessary to preserve her life or other bodily
functions; (4) that [Ramos] was informed that many significant risks, such as severe loss of blood, infection, and other consequences that can lead to death or permanent or partial disability, can result from any procedure; (5) that no promise or guarantee was made to her as a result or cure; and (6) that
[Ramos] had the opportunity to ask questions about the form. In a separate section at the bottom half of the form entitled "FULL DISCLOSURE" it states: "I agree that my physician has informed me of the: a) diagnosis or probable diagnosis[,] b) nature of the treatment or procedures recommended[,] c) risks or complications involved in such treatment or procedures[,] d) alternative forms
of treatment, including non-treatment available[,] e) anticipated results of the treatment. Immediately below this statement was [Ramos'] signature, Dr. Lattimer's signature, and the signature of
a witness. . . .
88. [Ramos'] ureteroscopy procedure that was scheduled for June 25, 1992, was canceled because the ureteroscope was broken
and Dr. Lattimer informed [Ramos] about this situation on June 24, 1992. . . .
89. On June 24, 1992, Dr. Lattimer also explained to
[Ramos] the various options that were available which were: (1) arranging for ureteroscopy in Honolulu; (2) arranging for ESWL in Honolulu; (3) waiting until the ureteroscopy device was
repaired; and (4) undergoing cystoscopy with immediate placement
of a stent. [Ramos] chose to have cystoscopy and a stent placed until the ureteroscopy could be done. . . .
90. Because of the change made in [Ramos'] scheduled procedure just the day before, on June 25, 1992 Dr. Lattimer personally filled out the Consent to Operation, Post Operative
Care, Medical Treatment, Anesthesia, or Other Procedure form,
which was the same form that [Ramos] signed on June 22, 1992,
except that the procedure was changed to cystoscopy which Dr. Lattimer wrote in lay language as "look in bladder w/ a telescope, put an indwelling tube up to kidney." Dr. Lattimer saw [Ramos]
sign this consent form, albeit most likely while she was laying on
a gurney in the hospital, which explains [Ramos'] somewhat
different signature. . . .
91. On June 25, 1992, Dr. Lattimer performed cystoscopy on [Ramos] and placed a double J stent into the right kidney. . . .
92. Dr. Lattimer saw [Ramos] on July 8, 1992, to confirm that she had recovered from her hysterectomy, that the fibroid uterus was benign, and reiterated the alternative procedures for treating her kidney stone and the risks and complications
involved, including the risk of laceration or tear associated with ureteroscopy, and she confirmed her choice of ureteroscopy. . . .
93. [Ramos] experienced pain from the stent and wanted the procedure to be done in Kona with the expectation that she could
go back to work the next day, which were the reasons why she chose ureteroscopy. . . .
94. The day after he saw [Ramos] on the July 8, 1992
office visit, Dr. Lattimer dictated a Personal History and
Physical Examination record of [Ramos], which described the
history of [Ramos'] illness and again confirmed that "[t]he alternatives, risks and complications of surgery were fully explained to and accepted by the patient." . . .
95. On July 10, 1992, [Ramos] signed the consent form entitled Consent to Operation, Post Operative Care, Medical Treatment, Anesthesia, or Other Procedure, the same form as she signed on June 22, 1992, except that the procedure was described
as "ureteroscopy, poss. stone basket, possible lithotripsy" and a layperson's translation as "to view the inside of the ureter with
a telescope, attempt to remove stone if poss., poss. fragmentation of the stone." As with the prior document, the bottom half
entitled "FULL DISCLOSURE" stated: "I agree that my physician has informed me of the: a) diagnosis or probable diagnosis[,]
b) nature of the treatment or procedures recommended[,] c) risks
or complications involved in such treatment or procedures[,] d) alternative forms of treatment, including non-treatment available[,] e) anticipated results of the treatment. Immediately below this statement was [Ramos'] signature, Dr. Lattimer's signature, and the signature of a witness. . . .
96. [Ramos] signed this July 10, 1992, consent form. . . .
97. On July 14, 1992, Dr. Lattimer performed ureteroscopy
on [Ramos] as she had elected.
98. [Ramos] said she could not recall whether Dr. Brinton had explained to her about the risks and complications of ureteroscopy. . . .
99. [Ramos] also could not recall whether the operating
room personnel told her she could die from complications from the general anesthesia in the procedure with Dr. Brinton, but did
recall this when confronted with her previous testimony given in
her deposition. . . .
100. [Ramos'] expert witness, Dr. Huffman, stated that
while it was necessary to inform the patient specifically about
the risk and complication of tear and laceration associated with ureteroscopy, the documentation of that informed consent need not
be that detailed. . . .
Dr. Lattimer's Performance of the Procedure
101. The July 14, 1992 ureteroscopy began with [Ramos]
being given general anesthesia and Dr. Lattimer began by
introducing a panendoscope into [Ramos'] urethra and into the bladder where the previously placed stent was visualized and withdrawn. . . .
102. A guide wire was then passed up through the right
ureter and the flexible ureteroscope was passed over the guide
wire into the right kidney. Up to this point, there were no problems encountered with the procedure. . . .
103. The upper pole infundibulum of the right kidney was
seen to be normal but the lower pole infundibulum was extremely narrow. This was the first time that Dr. Lattimer knew that
[Ramos] had a stricture in the lower pole infundibulum. . . .
104. Despite the narrowness of the infundibulum, Dr.
Lattimer managed to get the guide wire through it and follow[ed] with the ureteroscope. However, the infundibulum was so narrow
that it was "impossible" to maneuver the ureteroscope. Dr.
Lattimer then attempted to dilate the infundibulum with a balloon ureter dilator and this worked only marginally, but he was able to get the scope through and managed to use the EHL probe to attempt
to fragment the stone. . . .
105. To fragment the stone with an EHL probe, the goal is
to hit the stone at its equator. . . .
106. However, because the narrowness of the infundibulum prevented adequate maneuvering, Dr. Lattimer was not able to hit
the equator of the stone and the few tries only moved the stone
away from the probe. . . .
107. Dr. Lattimer then sought to "basket" the stone for the purpose of bringing the stone out to the mouth of the infundibulum so he could fragment the stone with the EHL probe. . . .
108. Dr. Lattimer succeed[ed] in basketing the stone and
ran the ureteroscope alongside the basket so as to visualize the stone. However, because the infundibulum was so narrow, Dr. Lattimer was not able to visualize the stone from outside the infundibulum. . . .
109. Dr. Lattimer then sought to disengage the stone from
the basket, but despite multiple attempts, was unsuccessful. Dr. Lattimer had never before had a problem disengaging a stone from
the basket. . . .
110. Dr. Lattimer then attempted to dilate the ureter infundibulum and brought the ureteroscope along the side of the basket. . . .
111. Because the stone could not be seen with the scope due to the narrowness of the infundibulum, Dr. Lattimer attempted to draw the basket to a point where it could be visualized so the EHL probe could be used to fragment the stone. Tension was applied to the basket to take slack off the wire and maneuver it so it could
be seen while pushing the scope to visualize the stone, and this
is when the ureter was lacerated. . . .
. . . .
113. Dr. Lattimer had done this particular technique on numerous occasions in the past which were all successful, however
in [Ramos'] case, the ureter tore. . . .
. . . .
117. Once the ureter was lacerated, Dr. Lattimer preformed open surgery on [Ramos] to remove the basket and stone and repair the lacerated ureter which he completed successfully. . . .
118. No criticism was made about Dr. Lattimer's open
surgery and repair of the lacerated ureter. . . .
. . . .
129. Of the four urologists who testified at trial, Dr. Lattimer, Dr. Huffman, Dr. Swartz, and Dr. Stephen Chinn, each stated that he had occasion to tear the ureter during a
ureteroscopy procedure. . . .
CONCLUSIONS OF LAW
To the extent any of the following Conclusions of Law shall
be determined to be Findings of Fact, they shall be deemed as
such.
. . . .
Choice of Procedure
7. The preponderance of the evidence is that Dr.
Lattimer's recommendation and use of the ureteroscopic procedure
on [Ramos] to treat her kidney stone, as opposed to ESWL or other procedures, did not fall below the standard of care. There are numerous reasons for this conclusion.
8. First, the preponderance of the evidence indicates
that ureteroscopy was an accepted procedure in treating kidney stones and an accepted procedure for [Ramos].
9. Every expert witness testified that ureteroscopy was
an accepted procedure, among four procedures, for treatment of a kidney stone.
10. There was no evidence that ureteroscopy was contraindicated for [Ramos], and at a very minimum, there were at least indications that ESWL was contraindicated for [Ramos].
11. Moreover, the medical literature, including Campbell's Urology, a urology reference recognized as authoritative,
indicates that ureteroscopy was being used by a "large number of urologists" in their daily practice and that the incidence of complications were infrequent. This was a section that was
written by Dr. Huffman, [Ramos'] expert witness.
12. In addition, there was nothing in the medical
literature to support the view the ESWL was the first choice to be used for the removal of kidney stones or even that it was the preferred choice.
13. The circumstances involved in the choice of
ureteroscopy for [Ramos] also support the conclusion that its use was an appropriate and reasonable one. Foremost among those circumstances was that ESWL and percutaneous nephrolithotomy were not available in Kona and therefore ureteroscopy was the least invasive procedure for [Ramos] in Kona. Considering [Ramos']
desire to stay with Dr. Lattimer who would not have been able to follow-up on [Ramos] if she had an ESWL procedure in Honolulu, and her wish to quickly get back to work, it was entirely reasonable
to recommend, choose, and use the ureteroscopic procedure.
14. At best for [Ramos], the evidence indicates that ESWL
is a preferred choice for some doctors, among other accepted procedures such as ureteroscopy, for the removal of kidney stones. However, the use of a recognized and accepted procedure over a preferred procedure does not establish that Dr. Lattimer fell
below the standard of care. This case falls squarely within the
two schools of thought doctrine.
15. "The two schools of thought doctrine basically
provides that it is improper for a jury to be assigned to decide which of two schools of thought as to proper surgical or other medical procedure should have been followed in any particular
case, when both schools have their respective and respected advocates and followers in the medical profession. In essence, a lay jury is not to be put in a position of choosing one respected body of medical opinion over another, when each has a reasonable following among the members of the medical community. Under this doctrine, a physician will not be held liable merely for
exercising his judgment in applying a course of treatment
supported by a reputable and respected body of medical experts,
even if another body of expert medical opinion would favor a different course of treatment." Trent v. Trotman, 508 A.2d 580,
584 (Pa.Super. 1986) (emphasis added).
. . . .
20. In Hawaii, it is recognized that "[i]t is not
negligent for a physician, based on the knowledge that he
reasonably possesses at the time, to select a particular course of treatment among acceptable medical alternatives. This is true
even though, in hindsight, the choice was inappropriate."
Hirahara v. Tanaka, 87 Haw. 460, 464, 959 P.2d 830, [834] (1998).
21. In short, it was not negligent for Dr. Lattimer, based on the knowledge he possessed at the time, to select ureteroscopy which was an acceptable medical alternative.
22. While [Ramos'] expert witness, Dr. Huffman, testified that Dr. Lattimer fell below the standard in recommending and
using ureteroscopy on [Ramos] because ESWL was the first procedure that should have been utilized, his prior testimony and Campbell's Urology contradicted this opinion.
23. Lastly, the preponderance of the evidence indicates
that ESWL was contraindicated for [Ramos]. [Ramos] had a history
of urinary tract infection prior to seeing Dr. Lattimer, during
her course of treatment with Dr. Lattimer, and afterwards until
her kidney was removed. Urinary tract infection is a recognized contraindication for ESWL. In addition, an obstruction distal to the stone is also a contraindication for ESWL. While one obstruction was removed when [Ramos] had her fibroid uterus
removed, Dr. Lattimer suspected that there was a stricture right below the stone which later turned out to be correct.
Accordingly, as opined by Dr. Swartz, ureteroscopy was the
preferred choice over ESWL for [Ramos].
Informed Consent
24. The preponderance of the evidence is that [Ramos] received informed consent from Dr. Lattimer for the ureteroscopy procedure.
25. In order to establish lack of informed consent, the Plaintiff must prove the following by a preponderance of the evidence: (1) The physician owed a duty to disclose to the
patient the risk of one or more of the collateral injuries that
the patient suffered; (2) the physician breached his duty; (3) the patient suffered injury; and (4) the physician's breach of duty
was a cause of the patient's injury in that: (a) the physician's treatment was a substantial factor in bringing about the patient's injury and (b) a reasonable person in the patient's position would not have consented to the treatment that led to his or her injury
if the patient had been properly informed of the risk of harm that in fact occurred; and (5) no other cause is a superseding cause. Bernard v. Char, 79 Haw. 362, 903 P.2d 667 (1995).
26. Unquestionably, Dr. Lattimer owed [Ramos] a duty to disclose the risk of laceration or tear of her ureter involved in the ureteroscopy procedure.
27. The preponderance of the evidence is that Dr. Lattimer informed [Ramos] on at least two occasions of the risk of
laceration or tear, among several other risks or complications, involved in the ureteroscopy procedure.
28. The first occasion was when they discussed the
procedure in their June 15, 1992 office visit. Dr. Lattimer documented that discussion in his handwritten progress note of
that same date by indicating: "Reviewed films, alternatives,
risks & complications c[with] pt. Ureteroscopy elected."
29. In addition, he documented that discussion on the very next day in a document supplied for the hospital entitled Personal History and Physical Examination, which states in relevant part
that "[t]he alternatives, risks and complications of surgery were fully explained to and accepted by the patient."
30. Moreover, [Ramos] signed a consent form, entitled Consent to Operation, Post Operative Care, Medical Treatment, Anesthesia, or Other Procedure, on June 22, 1992, which states in relevant part: (1) that Dr. Lattimer was authorized to treat [Ramos'] stone in her right ureter and that the condition had been explained to her; (2) that the procedure of ureteroscopy and lithotripsy were to be performed on her, which in lay terms meant
to view inside her ureter with a telescope to break up the stone, and that this procedure was explained to her; (3) that [Ramos] recognized that during the operation, unforeseen conditions may necessitate procedures necessary to preserve her life or other bodily functions; (4) that [Ramos] was informed that many significant risks, such as severe loss of blood, infection, and other consequences that can lead to death or permanent or partial disability, can result from any procedure; (5) that no promise or guarantee was made to her as a result or cure; and (6) that
[Ramos] had the opportunity to ask questions about the form. In a separate section at the bottom half of the form entitled "FULL
DISCLOSURE" it also stated: "I agree that my physician has
informed me of the: a) diagnosis or probable diagnosis[,]
b) nature of the treatment or procedures recommended[,] c) risks
or complications involved in such treatment or procedure[,] d) alternative forms of treatment, including non-treatment available[,] e) anticipated results of the treatment.["] Immediately below this statement was [Ramos'] signature, Dr. Lattimer's signature, and the signature of a witness.
31. Dr. Lattimer informed [Ramos] a second time on her
July 8, 1992, office visit of the risk of laceration or tear for
the ureteroscopy procedure, among other risks and complications.
32. Like the previous documentation, Dr. Lattimer
documented that discussion on the very next day in a document supplied for the hospital entitled Personal History and Physical Examination, which stated in relevant part that "[t]he
alternatives, risks and complications of surgery were fully explained to and accepted by the patient."
33. On July 10, 1992, [Ramos] signed the consent form entitled Consent to Operation, Post Operative Care, Medical Treatment, Anesthesia, or Other Procedure, the same form as she signed on June 22, 1992, except that the procedure was described
as "ureteroscopy, poss. stone basket, possible lithotripsy" and layperson's translation as "to view the inside of the ureter with
a telescope, attempt to remove stone if poss., poss. fragmentation of the stone." As with the prior document, the bottom half
entitled "FULL DISCLOSURE" stated: "I agree that my physician has informed me of the: a)diagnosis or probable diagnosis[,]
b) nature of the treatment or procedure recommended[,] c) risks or complications involved in such treatment or procedures[,] d) alternative forms of treatment, including non-treatment available[,] e) anticipated results of the treatment. Immediately below this statement was [Ramos'] signature, Dr. Lattimer's signature, and the signature of a witness.
34. Because the first ureteroscopy procedure that has been planned for June 25, 1992, was cancelled, and then rescheduled
after [Ramos'] hysterectomy, [Ramos] received informed consent for her ureteroscopy procedure on two occasions, which were fully documented in the record in five separate documents. She
admittedly signed the detailed consent form on at least two occasions.
. . . .
36. [Ramos'] testimony that she could not recollect
whether Dr. Lattimer explained to her about the risks and complications associated with ureteroscopy, when weighed against
Dr. Lattimer's testimony that he told her about such risks on two occasions, and specifically about laceration and tear of the
ureter which appears to be the most obvious and common
complication, coupled with five separate documentation
memorializing that [Ramos] was informed about the risks of ureteroscopy, leads to the conclusion that the preponderance of
the evidence establishes that [Ramos] gave informed consent to Dr. Lattimer for the ureteroscopy procedure.
Dr. Lattimer's Performance of the Procedure
37. The preponderance of the evidence is that Dr. Lattimer did not fall below the standard of care when he performed the ureteroscopy procedure.
38. Dr. Lattimer had considerable experience in performing ureteroscopy.
39. The techniques that he used in the ureteroscopy procedure on [Ramos] were techniques that he had successfully used before.
40. The ureteroscopic technique that was employed by Dr. Lattimer when the laceration occurred was recognized and described by Dr. Huffman's article written for Campbell's Urology.
41. The decision to pull on the basket was a judgment call and the best person to make that judgment was the surgeon who performed the surgery.
42. No expert testified and there was no reference in the authoritative articles or references that if a laceration occurred during the procedure, it meant that bad or poor judgment was employed.
43. To the contrary, [Ramos'] expert witness, Dr. Huffman, testified that a laceration during ureteroscopy can occur in the best surgeon's hands.
44. Of the four urologists who testified, every one
conceded that he had lacerated a ureter while performing ureteroscopy.
. . . .
47. Accordingly, the preponderance of the evidence is that Dr. Lattimer did not fall below the standard of care in his performance of the ureteroscopy on [Ramos].
ORDER
Based on the aforementioned Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, that
Defendant JON K. LATTIMER, M.D. was not negligent and that
judgment shall be entered in favor of Defendant JON K. LATTIMER, M.D. and against Plaintiff ESTER G. RAMOS, and that the case be dismissed with prejudice.
POINT ON APPEAL
Ramos challenges Conclusion of Law (COL) no. 24. It states as follows: "The preponderance of the evidence is that
[Ramos] received informed consent from Dr. Lattimer for the ureteroscopy procedure."
Obviously, COL no. 24 was unintentionally misworded. It should read as follows: "The preponderance of the evidence is that Dr. Lattimer received informed consent from Ramos for the ureteroscopy procedure."
In a trial brief filed August 18, 1998, Ramos states that
Lattimer did not discuss the possible risks of ureteroscopy and lithotripsy such as a uretal laceration. Dr. Jeffry L. Huffman, Plaintiff's medical expert, noted that uretal lacerations are a recognized complication of ureteroscopic procedures. . . . Furthermore, Dr. Huffman reported the incidence of injury during ureteroscopic procedures in Campbell's Urology, Sixth Edition, p. 2225: "Injuries occurred in 9 percent of all procedures, with 1.6 [percent] requiring surgical intervention." Campbell's Urology is a leading text in urological procedure and referred to as the "Bible of Urology."
. . . .
The end result of Lattimer's failure to inform [Ramos] was that she had no idea of the risks she was exposing herself to. [Ramos] did not know there were other procedures open to her, she did not know that ureteroscopy and lithotripsy had a high rate of injury, she did not know that an enlarged uterus could be causing some of her symptoms, and she did not know that the risks for her procedure would be higher because the stone was located within the kidney itself. This is a clear breach of Lattimer's duty to disclose all relevant information and collateral risks to [Ramos].
Ramos argues that COL no. 24 is wrong because the trial court failed to find that the risk of laceration was nine percent (9%) and that Dr. Lattimer failed to inform Ramos of this fact.
Ramos notes that the trial court used the commonality of lacerations during such operations "to absolve [Dr. Lattimer] of negligence in performing the ureteroscopy." Implicitly, he is referring to Finding of Fact (FOF) no. 129 which states, in relevant part, "Of the four urologists who testified at trial, . . . , each stated that he had occasion to tear the ureter during a ureteroscopy procedure."
THE RELEVANT PRECEDENT
In cases involving informed consent, the standard for determining what needs to be disclosed was established in Carr v. Strode, 79 Hawaii 475, 904 P.2d 489 (1995), in relevant part, as follows:
The dispositive inquiry regarding the physician's duty to disclose in an informed consent case . . . is not what the
physician believes his or her patient needs to hear in order for
the patient to make an informed and intelligent decision; the
focus should be on what a reasonable person objectively needs to hear from his or her physician to allow the patient to make an informed and intelligent decision regarding proposed medical treatment.
We strongly caution, however, as did the [Intermediate Court of Appeals] in Bernard [v. Char, 79 Hawaii 371, 903 P.2d 676
(Haw. App. 1995), cert. granted, 78 Hawaii 474, 896 P.2d 930 (1995)], that our adoption of the patient-oriented standard does
not relieve plaintiffs of their burden to provide expert medical testimony as to the "materiality" of the risk; to the contrary, a plaintiff maintains the burden of adducing expert medical
testimony to establish "the nature of risks inherent in a
particular treatment, the probabilities of therapeutic success,
the frequency of the occurrence of particular risks, and the
nature of available alternatives to treatment." Bernard, 79
Hawaii at 383, 903 P.2d at 688 (quotation marks, internal
brackets, and citation omitted). As the Canterbury court noted:
Experts are ordinarily indispensable to identify and
elucidate for the factfinder the risks of therapy and the consequences of leaving existing maladies untreated. They
are normally needed on issues as to the cause of any injury
or disability suffered by the patient and, where privileges are asserted, as to the existence of any emergency claimed
and the nature and seriousness of any impact upon the
patient from risk-disclosure. Save for relative[ly] infrequent instances where questions of this type are resolvable wholly within the realm of ordinary human
knowledge and experience, the need for the expert is clear.
464 F.2d at 791-92 (footnote omitted).
Id. at 486, 904 P.2d at 500.
STANDARDS ESTABLISHED BY THE BOARD OF MEDICAL EXAMINERS
Hawaii Revised Statutes (HRS) § 671-3(b) (1993) states, in relevant part, as follows:
If the standards established by the board of medical examiners include provisions which are designed to reasonably inform a patient, or a patient's guardian, of:
(1) The condition being treated;
(2) The nature and character of the proposed treatment or surgical procedure;
(3) The anticipated results;
(4) The recognized possible alternative forms of treatment; and
then the standards shall be admissible as evidence of the standard of care required of the health care providers.
The standards established by the Board of Medical Examiners for informed consent are stated in Hawaii Administrative Rules (HAR) §§ 16-85-24 to 16-85-27, in relevant part, as follows:
§16-85-24 Authority and purpose The rules in this
subchapter are adopted pursuant to authority granted by section 671-3, HRS, and are intended to effectuate the purpose of that section. The board has determined that it is not practicable to
set standards that include the substantive content of the information to be given a patient to insure that a patient's
consent to treatment is an informed consent.
. . . .
§16-85-25 General standards for categories of information.
(a) Except as provided in subsection (b), where standards of
medical practice indicate that a health care provider should
provide the patient, or the patient's guardian, with information prior to obtaining consent for proposed medical or surgical treatment or for a diagnostic procedure, information satisfying
the following categories shall be supplied to the patient or the patient's guardian:
(1) The condition to be treated or the suspected existence of which is the indication for a diagnostic procedure;
complication or mortality associated with the proposed treatment or diagnostic procedure, with the recognized alternative treatments or diagnostic procedures, and with no undertaking treatment or diagnosis; and
treatment or diagnosis.
(b) the disclosure of information required by subsection (a) may
be withheld if in the judgment of the health care provider the information be detrimental to the patient's mental or physical health, or not in the best interest of the patient, provided that such action is consistent with general standards of medical and surgical practice.
DISCUSSION
CsOL nos. 24, 26, 27, 31, and 36 establish that Dr. Lattimer informed Ramos about the risks involved in the ureteroscopy procedure. In a footnote in her reply brief, Ramos states that she "is not asking [the] Court to change the lower court's findings of fact. Rather, we ask that an additional finding of fact be made in order to make the findings of fact more complete with respect to the issue of whether a physician should be required to disclose the frequency of a particular risk."
In other words, Ramos argues that the disclosure of the percentage of the risk of the occurrence of a harmful consequence
to the patient is required for informed consent. Ramos contends that "[u]nder the patient oriented standard, a reasonable patient would need to hear how frequent a complication might arise in order to make an informed decision regarding treatment." Therefore, the circuit court is required to make a finding that Dr. Lattimer disclosed to [Ramos] the percentage of risk since (1) the disclosure of the percentage of risk is a material fact for informed consent and (2) "fundamental fairness requires that Ramos be told of the actual risk" because the court relied on the testimony of the doctors that they had occasion to tear the ureter during a ureteroscopy procedure when it decided the standard of care.
Initially, we note that the question presented on appeal was never raised in the circuit court. Because it was not litigated at trial, it is not an appealable issue. Birmingham v. Fodor's Travel Publication, Inc., 73 Haw. 359, 371, 833 P.2d 70, 77 (1992)(stating that "[t]he general rule in this jurisdiction is that we will not address a legal theory not raised by the appellant in the court below").
Alternatively, assuming it is an appealable issue, the argument by Ramos has no merit.
The standard in determining whether a doctor has adequately informed a patient is the reasonable patient-oriented standard of disclosure. The plaintiff-patient has the burden of establishing on the record the disclosure that was required for him/her to make an informed decision.
During trial, Ramos' expert witness, Dr. Jeffry L. Huffman, testified, in relevant part, as follows:
Q. In regards to the ureteroscopic procedure, what
generally would you include in your implied [sic] consent in or
your information to a patient prior to such a procedure.
A. You would talk about -- assuming one would do a -- would approach a stone like this.
Q. Yes.
A. Okay. Assuming one would approach a stone like this, I think the most important thing I would talk about is the fact that we may not be successful and we may have to stop and do something else at some other time.
The second thing I would talk about is the possibility of injury to the urinary tract. Although it's not that likely, it
does happen and that the patient may even have to have a stent for
a period of time, and possibly nephrostomy, too. And there's a chance, as we talk about -- if I were to approach a stone like
this, would be that a second more invasive procedure may be
required to render her stone free.
. . . .
Q. Going back a little bit to the implied consent thing,
you mentioned the possibilities of damage which you specifically mentioned to the patient -- that perforation was a -- perforation
or laceration was certainly a complication of the ureteroscopic procedures.
A. I think -- I don't know how detailed I would get except that probably to say that there's a chance of injury to the
urinary tract that may require either the internal stent or the nephrostomy tube.
Dr. Lattimer's expert witness, Dr. Douglas A. Swartz, testified, in relevant part, as follows:
Q. I think you mentioned it earlier, but in discussing ureteroscopy with the patient, do you advise the patient of the risks and complications of the procedure.
A. Yes, sir.
Q. Do you have a standard discussion that you go through regarding the risks and complications?
A. I do. It's probably not as elaborate as it should be. I describe the possibility of injury to the ureter. Again, I think one of the main things I emphasize is that when we dilate the
distal portion of the ureter, there could be constriction that occurs. Anytime you instrument any portion of the urinary tract, scar[ing] can occur.
I know I mention the possibility of perforation. Most of
our discussion, though, revolves around whether we're going to be able to get the stone, fragment the stone.
Most patients want to know what their chances of coming out
of the procedure stone-free are. They want to get back to work; they want to keep the costs as minimal as they can. They don't
want multiple procedures.
Q. Doctor based upon your review of the Kona Hospital
medical records, including the consents signed by the patient, the history and physicals dictated by Dr. Lattimer, Dr. Lattimer's office records, and Dr. Lattimer's deposition and sworn testimony, do you have an opinion as to whether Dr. Lattimer met the standard of care in obtaining the patient's informed consent in this case?
A. Yes. I do more consent obtaining and more time with consent that most of the urologists in Jacksonville, and he's
doing more than we do.
. . . .
Q. Approximately how often do injuries of the ureter occur?
A. Well, the literature is pretty agreeable on around an 8-percent injury to the ureter.
Q. So in 100 procedures, the literature indicates you might have this complication in eight cases?
A. You would have some injury to the ureter in about eight cases.
In her opening brief, Ramos states, in relevant part, as follows:
Dr. Lattimer's expert witness testified that, during a ureteroscopy, injuries to the ureter occur in approximately eight percent of the procedures. Furthermore, "Campbell's Urology," p. 2225 (Defendant's Exhibit F), a leading text in urology (often referred to as the "Bible of Urology") also noted that the risk of laceration in a ureteroscopy was nine percent. . . .
Ramos argues that
the frequency with which a laceration would occur in a
ureteroscopy was material . . . . An eight-percent risk of laceration represents approximately one laceration for every 12.5 procedures performed. A nine-percent risk of laceration represents
approximately one laceration for every 11.1 procedures
performed. This frequency of laceration is significant, and,
under the patient oriented standard, a reasonable patient would need to hear about this frequency in order to make [an] informed decision regarding treatment or surgery.
Dr. Lattimer's Exhibit "F," which is a copy of certain pages of Campbell's Urology, Sixth Edition, published in 1992, reports in its Table 61-6 a study reported in "Huffman, J.L.: Injuries to the upper urinary tract. Urol. Clin. North Am., 16:249-254, 1989." This study involved 15 doctors and 1,696 procedures. In relevant part, it reported the following:
Ureteral Perforations 114 (7%) (1)
Major Ureteral Injury 7 (.4%)
Stricture 24 (1.4%)
Surgery 27 (1.6%)
It further reported that "[t]he size and flexibility of the instruments are major determinants of the incidence of ureteral injury."
In her opening brief, Ramos states, in relevant part, as follows:
Because the basket and stone was stuck and Dr. Lattimer was unable to see the stone, he decided to apply "tension" to the basket, while pushing the scope, in order to attempt to visualize the stone. In either pushing or pulling, Dr. Lattimer lacerated Mrs. Ramos' ureter causing serious damage.
Dr. Lattimer was forced to conduct open surgery on Mrs.
Ramos in order to remove the stone and repair the laceration. Ordinarily, this type of ureteroscopy was basically a two hour outpatient type of procedure. Mrs. Ramos, however, required seven days of hospitalization. Furthermore, she required three additional admissions to Kona Hospital and three additional
surgical procedures by Dr. Lattimer on August 12, 1992, September 11, 1992[,] and October 6, 1992. She eventually lost
her kidney due to the complications from Dr. Lattimer's laceration of her ureter.
In other words, Ramos is not complaining about a mere "laceration." She is complaining about a "Stricture" (1.4%) leading to a "laceration" (7% if it was a "Perforation") and a "Major Ureteral Injury" (.4%) necessitating the "Surgery" (1.6%). In Johnson v. Kokemoor, 188 Wis. 2d 202, 219, n.3, 525 N.W.2d 71, 77, n.3 (Wis. Ct. App. 1994), the court noted that
in Kennedy v. St. Charles Gen'l Hosp. Aux., 630 So.2d 888 (La. Ct. App. 1993), the court held that statistical percentages of risk
need not be given . . . . After reviewing precedent, the court noted: We find nothing in the above cited language that mandates the giving of percentages of risks for surgical procedures.
Indeed, our courts have traditionally recognized that medicine is
an inexact science. As such, the notion that the physician can
give accurate percentages for a risk being realized in a surgical procedure is foreign to the field of medicine. . . . Rather,
since the figures undoubtedly vary, Dr. Schwartz could very well have been faced with a charge of misrepresentation had he given a percentage later determined to be inaccurate.
In contrast, the court in Johnson, supra, concluded that "the law requires disclosure of treatment risks, and that treatment risks are a function of both the gravity of the potential harm that might occur and the probability of such occurrence." Johnson at 218, 525 N.W.2d at 77.
Similarly, in Bowers v. Talmage, 159 So. 2d 888, 890 (Fla. Dist. Ct. App. 1963) (citations omitted), the court stated that "[u]nless a person who gives consent to an operation knows its dangers and the degree of danger, a 'consent' does not represent a choice and is ineffectual."
As noted previously, HRS § 671-3(b)(5) requires the doctor to inform the patient of "[t]he recognized serious possible risks, complications, and anticipated benefits[.]" Similarly, as noted previously, HAR § 16-85-25(a)(5) requires the doctor to inform the patient of "[t]he recognized substantial risks of serious complication or mortality[.]" Neither requirement speaks in terms of frequency.
However, also as noted previously, the Hawaii Supreme Court's opinion in Carr agreed with this court's opinion in Bernard v. Char, 79 Hawaii 362, 903 P.2d 667 (1995), and states, in relevant part, that
a plaintiff maintains the burden of adducing expert medical testimony to establish "the nature of risks inherent in a particular treatment, the probabilities of therapeutic success, the frequency of the occurrence of particular risks, and the nature of available alternatives to treatment." Bernard[ v. Char], 79 Hawaii at 383, 903 P.2d at 688 (quotation marks, internal brackets, and citation omitted).
Carr at 486, 904 P.2d at 500 (emphases added).
We agree with Ramos that when the relevant frequency of serious complication or mortality is known or reasonably should be known by the doctor, that information is within the doctor's duty to disclose to the patient "[t]he recognized substantial risks of serious complication or mortality associated with the proposed treatment or diagnostic procedure[.]" HAR § 16-85-25(a)(5).
We note that the relevant frequency relates to the relevant statistics generated by the doctor who obtains the informed consent as well as to the relevant statistics generated by other relevant doctors. (2)
In this context, averages may be misleading. According to Table 61-7 of Campbell's Urology, one doctor, who performed 142 of the procedures, reported 24 (16.9%) ureteral perforations and 4 (2.8%) surgeries. In contrast, another doctor, who performed 242 of the procedures, reported no urethral perforations and no surgeries. The "average" would inaccurately describe the risk when either doctor operates.
Moreover, as noted in Table 61-7 of Campbell's Urology, the percentage of complications (amount of the risk) is influenced also by:
1. Careful patient selection. (3)
2. Complete urologic work-up.
3. Availability of essential instruments.
4. Availability of fluoroscopy.
5. Sound judgment in urologic procedures.
The percentage of complications is influenced also by the talents of the particular physician at the particular place where the procedure occurs, with particular instruments and equipment, and with a particular supporting team of assistants and staff.
In Johnson at 226, 525 N.W.2d at 80, which involved a patient who was rendered an incomplete quadriplegic following a posterior basilar bifurcation aneurysm clipping procedure, "[t]he jury, however, heard that the risk with the best surgeons was 10%, with experienced surgeons was about 15%, but was 20% to 30% with Kokemoor."
FOF no. 11 finds that prior to treating Ramos, Dr. Lattimer performed ureteroscopy in 120 cases and did not have "any significant complications with the ureteroscopic procedure." In other words, Dr. Lattimer's percentage, which is the most relevant percentage, was zero. There is no evidence, however, that any of the 120 cases presented problems similar to the problems presented in the case of Ramos.
We also emphasize the words "known or should be known." We agree with Wisconsin statute § 448.30 that "[t]he physician's duty to inform the patient . . . does not require disclosure of: (1) Information beyond what a reasonably well-qualified physician in a similar medical classification would know." Johnson at 215, 525 N.W.2d at 76. Although such percentage may or may not be relevant in the particular case in question, it may be that a urologist would know or reasonably should know his or her personal percentage of risk as did Dr. Lattimer. There is no evidence that a urologist reasonably should know the relevant percentage of risk present when the "best" and "experienced" urologists are involved. There is no evidence that a urologist reasonably should do special research and analysis to determine the "relevant frequency of the complication" as experienced by a relevant sampling of "best," "experienced," and/or other urologists, or a combination of them.
There are two relevant situations: (1) when Dr. Lattimer personally performed ureterosocopy procedures, and (2) when other doctors performed ureteroscopy procedures. The question is whether regarding either or both situations it was Dr. Lattimer's legal duty to advise Ramos of the percentage of each of the following two risks: (a) a laceration/perforation of her ureter, and (b) a major ureteral injury necessitating surgery. We conclude that, at best, the evidence established Dr. Lattimer's duty to advise Ramos of the percentage of each of these two risks present when Dr. Lattimer personally performed the procedure, and that if Dr. Lattimer failed to advise Ramos of his perfect record, that failure was harmless error.
To the extent that the question of the sufficiency of the disclosure in this case is a question of fact, the rule is that "[w]herever nondisclosure of particular risk information is open to debate by reasonable-minded [people], the issue is for the finder of facts." Canterbury v. Spence, 464 F.2d 772, 788, reh'g denied, 464 F.2d 772 (D.C. Cir.), cert. denied, 409 U.S. 1064 (1972). After reviewing the record, we affirm the trial court's decision that Dr. Lattimer did not violate his duty of disclosure in Ramos' case.
CONCLUSION
Accordingly, we affirm the circuit court's March 3, 1999 Judgment.
DATED: Honolulu, Hawaii, October 24, 2000.
On the briefs:
Christopher D. Ferrara
for Plaintiff-Appellant.
Gary N. Hagerman and
Paul K. Hamano
for Defendant-Appellee.
1. This number and percentage is actually slightly higher because a "Dr. Seeger," who performed 105 procedures, reported "Occasional"
perforations.
2. See Aaron Twerski & Neil Cohen, The Second Revolution in Informed Consent: Comparing Physicians to Each
Other, 94 NW. U. L. Rev. 1 (1999).
3. Obviously, the unique condition of the particular patient involved influences the percentage of complications. The
percentage of complications of an expert who, because of his/her expertise, operates on high-risk patients may be higher than the percentage of a
non-expert who, because of his/her non-expertise, operates only on scant-risk patients.