Wobbrock Removal
Kristeen Cheek
In this medical malpractice action, plaintiffs Danitaand Lawrence Macy challenge a trial court ruling that preventedthem from introducing evidence at trial that Dr. Blatchford(defendant) had a sexual relationship with Danita Macy (1) at thetime when the Macys assert that he negligently treated her forpersistent and debilitating pelvic pain. The Court of Appealsaffirmed that ruling, specifically holding that the trial courtdid not err in granting defendant's motion in limine to excludeany evidence that he and Macy had a relationship of that kind.Macy v. Blatchford, 154 Or App 313, 329, 961 P2d 873 (1998). TheMacys sought review by this court, and we allowed their petitionto consider whether and how evidence of a sexual relationshipmight be relevant to a claim that a physician's treatment of apatient was negligent. We conclude that such evidence isrelevant to one of the Macys' allegations, viz., that defendantwas negligent in failing to obtain Macy's informed consent torecommended surgery. We therefore reverse the decision of theCourt of Appeals on that ground.
In January 1992, Macy consulted with defendant, agynecologist, about severe and persistent pelvic pain. Macy hadcomplained to defendant about pelvic pain previously, in 1982 andin 1985. Dr. Alberts examined Macy and performed a laparoscopyin February 1992, in the course of which he removed anendometrioma (an abnormal growth of uterine tissue outside theuterus) from Macy's left ovary. After reviewing Dr. Alberts'report and a videotape made during the laparoscopic surgery,defendant diagnosed endometriosis, a condition marked by growthof uterine tissue outside the uterus.
In May 1992, Macy again complained to defendant aboutpelvic pain. Defendant recommended additional laparoscopicsurgery, including removal of Macy's left ovary and fallopiantube. On June 3, 1992, defendant performed that surgery. Afterwards, Macy continued to suffer pelvic pain. Defendant thendiscussed with Macy the possibility of removing her right ovaryand fallopian tube, along with her uterus. Macy agreed to theadditional surgery, which defendant performed on August 20, 1992. Macy's pelvic pain did not subside after the secondsurgery. In fact, she began to suffer from new pain in her leftside and back. Ultimately, Macy consulted a different physician,Dr. Ellis, about the latter pain. Ellis determined that Macy'sleft ureter -- the tube connecting the kidney to the bladder --was obstructed, and performed surgery to correct the problem. Ellis believed that defendant inadvertently had stapled Macy'sureter during the June 1992 surgery, thereby causing theobstruction and related pain. (2)
In 1994, the Macys filed the present malpractice actionagainst defendant. In their complaint, they alleged fourspecifications of negligence -- that defendant had been negligentin: (1) stapling Macy's ureter during the June 1992 surgery; (2)failing to ascertain that Macy's continuing pain after the June1992 surgery arose from the obstructed ureter; (3) recommendingthe August 1992 surgery; and (4) failing to obtain Macy'sinformed consent for the August 1992 surgery. Defendant's answerdenied all four specifications of negligence.
Shortly before trial, the Macys moved to amend theircomplaint to include a fifth specification -- that defendant hadbeen negligent in continuing his physician-patient relationshipwith Macy after entering into a personal, sexual relationshipwith her. In submitting their motion, the Macys asserted thatdefendant would not be prejudiced by the addition of thatspecification, because he and his attorneys had been aware fromthe beginning that the Macys intended to make an issue of thealleged personal relationship.
Defendant opposed the motion to amend, arguing that theamendment was time-barred, that its inclusion would be unfairlyprejudicial, and that the Macys had failed to allege any injuryrelated to that amendment. Defendant also filed a motion inlimine to exclude any evidence of a sexual relationship betweenMacy and defendant. Defendant argued that any such evidence wasunfairly prejudicial, OEC 403, and that it was irrelevant to thespecifications of negligence that the Macys had pleaded, OEC 402. Ultimately, the trial court denied the Macys' motion to amend andgranted defendant's motion in limine. (3) A jury thereafterreturned a verdict in favor of defendant.
The Court of Appeals affirmed the trial court's rulingsconcerning the motion to amend and the motion in limine. Withregard to the motion in limine, the court opined that theevidence of a sexual relationship between defendant and Macy wasnot admissible, because it was not relevant to any of thespecifications of negligence that the Macys had pleaded. Macy,154 Or App at 326-29. The Court of Appeals also concluded that,even if erroneous, the denial of the Macys' motion to amend couldnot amount to reversible error, because the Macys had suffered noactual prejudice from that ruling. The court explained that thetheory underlying the amendment -- that Macy would not haveundergone the August 1992 surgery if she had been referred toanother physician -- was defeated by a special finding by thejury that defendant's surgery recommendation was one that couldhave been made in compliance with the applicable standard ofcare. Id. at 331.
In their petition to this court, the Macys challengeonly the Court of Appeals' affirmance of the trial court's ordergranting defendant's motion in limine. They argue that, contraryto the Court of Appeals' reasoning, evidence of a sexualrelationship between defendant and Macy was relevant to the third(negligence in recommending the August 1992 surgery) and fourth(negligence in failing to obtain informed consent) specificationsof negligence in their complaint. (4) In considering thosearguments, we are mindful of the relatively low threshold ofrelevance that is required under the Oregon Evidence Code. UnderOEC 401, evidence is relevant if it has "any tendency to make theexistence of any fact that is of consequence to the determinationof the action more probable or less probable than it would bewithout the evidence." (Emphasis added.)
The Macys argue that evidence of a sexual relationshipbetween defendant and Macy is relevant to their thirdspecification, because it supports an inference that, at the timethat he recommended additional surgery, defendant lacked theobjectivity that is required of physicians in their treatment ofpatients. The Court of Appeals rejected that theory, reasoningthat the standard of care for medical practitioners does notdelve into the practitioner's state of mind and requires onlythat his or her treatment of patients be objectively reasonable:
"The question presented by the third specification waswhether defendant's recommendation of the August 1992surgery was objectively reasonable given the totalityof plaintiff's medical circumstances. * * * Factorsbearing on defendant's subjective state of mind wereirrelevant to that objective inquiry."
The Macys argue that the foregoing reasoning is "justplain wrong." They contend that, because defendant's conductmust be measured against a standard set by his own profession andbecause "everyone," including the medical profession as a whole,understands that physicians must be dispassionate and objectivewhen making treatment decisions, maintaining an objective mentalstate is part of the standard of care that is applicable in thiscase. Thus, they conclude, any fact suggesting that defendantlacked objectivity in making his treatment recommendations toMacy is relevant and admissible to show that he was negligent.
We are not persuaded. The standard of care that isapplicable to the medical profession requires physicians to "usethat degree of care, skill and diligence that is used byordinarily careful physicians * * * in the same or similarcircumstances in the community of the physician * * * or asimilar community." ORS 677.095(1); see also Creasey v. Hogan,292 Or 154, 163, 637 P2d 114 (1981) (stating standard). Thatstandard is an objective one; it provides no ground for delvinginto a physician's subjective state of mind. Physicians mayviolate their ethical duties if they fail to maintain therequisite clear and objective state of mind -- for example, ifthey work while intoxicated or while their judgment is clouded bya relationship with a patient. But if, despite their less thanoptimal mental and emotional condition, their actual treatment ofa patient reflects the appropriate degree of care, they cannot beheld liable in negligence.
"The plaintiff's requested instruction was clearlyerroneous. Under the requested instruction, the testof whether or not the practitioner was negligent isbased upon his knowledge of his professed art. Alicensed practitioner of the healing art of medicine ispresumed to have the necessary medical knowledge topractice his profession. The law cannot equate themental ability of various individuals; it seeks only tofix a standard by which a jury may determine whether ornot the practitioner has properly performed his dutiestoward his patient."
Similarly, in Rogers v. Meridian Park Hospital, 307 Or612, 772 P2d 929 (1989), the court considered the correctness ofthe then-standard error-of-judgment instruction. Thatinstruction provided, inter alia, that, when there aredifferences of opinion among members of the medical profession asto the proper course of treatment, a physician must exercise"reasonable judgment." Id. at 615. The court concluded that theinstruction in question was confusing and that its use wasreversible error. It explained that the instruction "makes it appear that reasonable judgment is thecrucial issue. It is not. In fact, reasonablejudgment is irrelevant if the treatment option selectedprovides reasonable care. A doctor may not know thatthere is more than one treatment option, or the doctormay adhere only to one option, unreasonably rejectingall others. In both of these instances the doctor, byignoring or rejecting all other treatment options, maynot be exercising reasonable judgment. Nevertheless,the doctor is not liable for negligence if thetreatment furnished is consistent with reasonablecare."
c80f0f1006