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32. If the plaintiff asserts a claim against the surgeon based on negligence, will the plaintiff prevail?
The surgeon successfully performed the bypass operation and the plaintiff made a good recovery. However, when the plaintiff learned of the 2% risk of death associated with the operation, he was furious that the surgeon had failed to disclose this information to him, saying that he would have refused the operation if he had known of the risk.
A plaintiff suffered from a serious, though not immediately life-threatening impairment of his circulatory system. The plaintiff's cardiologist recommended a cardiac bypass operation and referred the plaintiff to a surgeon. The surgeon did not inform the plaintiff of the 2% risk of death associated with this operation. The surgeon defended his decision not to mention the risk statistics to the plaintiff because the plaintiff «was a worrier and it would significantly lessen his chance of survival to be worried about the nonsurvival rate.»
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B is correct. Here, the damages element is not satisfied. Although the plaintiff was offended and unhappy that the surgeon did not inform him of the risk, the surgery succeeded, and the facts do not state there was any other injury the patient suffered aside from emotional affront. In negligence claims, if the plaintiff suffered emotional distress and no other harm, damages for that emotional distress are not recoverable. One exception to that rule is negligent infliction of emotional distress, but even for that tort, most jurisdictions require that there was a physical injury that came from the emotional distress — the facts do not indicate the plaintiff's distress here led to any physical symptoms.
A is incorrect. This answer choice misstates the law. Surgeons are not immune to a negligence action merely because they used their best personal judgment. If the surgeon used his best personal judgment but still failed to conform to the applicable standard of care, the surgeon is still liable for negligence if the other elements of the claim are met.
C is incorrect. The fact that the patient would have refused the surgery if properly informed of the risk does not alter the fact that the plaintiff-patient has no damages beyond emotional distress.
D is incorrect. This answer provides a generally accurate statement of the law but it fails to address the plaintiff's inability to satisfy the damages element. Generally, doctors owe a duty to patients to explain the relevant risks of a procedure except in certain circumstances (such as when risk is obvious, the patient is not able to respond due to an emergency situation, informing the patient would worsen the condition, etc.). Jurisdictions differ in what risks they consider relevant, but a 2% risk of death arguably meets most tests. Even if it was a risk that should have been disclosed, however, that fact does not alter that the plaintiff cannot establish damages here.