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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Harrold v. Artwohl, M.D. (03/31/2006) sp-5998

Harrold v. Artwohl, M.D. (03/31/2006) sp-5998, 132 P3d 276

     Notice:   This opinion is subject to correction  before
     publication  in  the  Pacific  Reporter.   Readers  are
     requested to bring errors to the attention of the Clerk
     of  the  Appellate  Courts, 303  K  Street,  Anchorage,
     Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,


) Supreme Court No. S- 11638
Appellant, )
) Superior Court No.
v. ) 3AN-02-10500 CI
Appellee. ) No. 5998 - March 31, 2006
          Appeal  from the Superior Court of the  State
          of    Alaska,   Third   Judicial    District,
          Anchorage, Peter A. Michalski, Judge.

          Appearances:   Robert J.  Jurasek,  Pentlarge
          Law  Group, Anchorage, for Appellant.  Howard
          A.  Lazar  and  James  J.  Fayette,  Delaney,
          Wiles,  Hayes, Gerety, Ellis &  Young,  Inc.,
          Anchorage, for Appellee.

          Before:   Bryner,  Chief  Justice,  Matthews,
          Fabe,  and  Carpeneti, Justices.   [Eastaugh,
          Justice, not participating.]

          BRYNER, Chief Justice.

          After learning that he probably had appendicitis, Frank
Harrold  consented to immediate surgery to remove  his  appendix.
The  appendix  turned out to be healthy.  Harrold then  sued  his
surgeon for failing to give him enough information to provide  an
informed  consent, but the superior court dismissed the claim  on
summary  judgment.  The main question in this appeal  is  whether
Harrold  raised any genuine issues of material fact  requiring  a
trial.  Because evidence in the record suggests that Harrold  may
not  have been told that a CT scan could have ruled out the  need
for  immediate  surgery,  and because he  reasonably  could  have
believed that this information was important in deciding  whether
to  give  his consent, we hold that a triable issue of  fact  has
been raised, protecting Harrolds claim against summary judgment.
          Frank  Harrold came to the emergency room at Providence
Hospital  in  Anchorage  to  get help  for  abdominal  pain.   He
reported that he had been seen for kidney stones a month  before;
a  CT  scan performed then suggested that he had an appendicolith
a  calcified mass in the appendix.  The emergency room  physician
examined  Harrold, suspected appendicitis, and summoned  the  on-
call surgeon, Dr. Robert Artwohl.
          Dr.  Artwohl  came  to  the  emergency  room,  examined
Harrold,   and   confirmed  that  Harrold   probably   did   have
appendicitis.  The doctor discussed Harrolds symptoms  with  him,
told him about the possibility of performing another CT scan, but
advised  Harrold that it would probably be best to simply  remove
the  appendix immediately, since the appendix would always be  at
issue if Harrold had future similar episodes of abdominal pain.
          Harrold  agreed  with  the  recommendation.   After  he
finished speaking with Dr. Artwohl, he signed an informed consent
form in the presence of registered nurse Vera Belic.  Dr. Artwohl
then  operated and removed Harrolds appendix.  During the surgery
Dr.  Artwohl  saw  no  signs of infection in or  around  Harrolds
appendix; tests conducted after the operation confirmed that  the
appendix  was  normal.   Harrold  eventually  sued  Dr.  Artwohl,
claiming  that  the doctor had failed to provide  Harrold  enough
information  to  allow him to give an informed consent.   Harrold
also  claimed  that Dr. Artwohl committed medical malpractice  by
performing unnecessary surgery.
          The  superior  court  dismissed the  malpractice  claim
because  Harrold failed to offer any expert evidence  of  medical
malpractice  to  counter evidence offered by Dr.  Artwohl.1   Dr.
Artwohl  then moved for summary judgment on the informed  consent
claim, asserting that he had given Harrold enough information  to
make an intelligent treatment decision and that Harrold had given
informed  consent.   In  support  of  his  motion,  Dr.   Artwohl
submitted  a  copy of the informed consent form that Harrold  had
signed, as well as an affidavit by Nurse Belic, who had witnessed
the  signature,  outlining the procedures  she  had  followed  to
ensure that Harrold understood what he was signing.
          Dr.   Artwohl   also  submitted  his   own   affidavit,
transcripts  of  depositions that he  and  Harrold  had  recently
given, and other relevant hospital records.  The hospital records
included  the  following  entry from Dr.  Artwohls  pre-operative
          The  possibility of obtaining another CT scan
          was discussed, but in reality if this patient
          has  more  episodes of right  lower  quadrant
          pain,  the appendix will always be at  issue.
          So,   we  decided  to  proceed  directly   to
          appendectomy.  I told the patient that he has
          approximately  15%  chance  that   a   normal
          appendix  will  be found.  The  technique  of
          open  versus  laparoscopic was discussed  and
          the  patient  states that he  feels  like  he
          would like a laparoscopic approach because  I
          told  him  that this usually involves  a  lot
          less incisional pain and he could go back  to
          work a lot quicker.
Dr. Artwohls affidavit echoed this account of his discussion with
Harrold.   The  doctor relied on these statements in  moving  for
summary  judgment,  arguing  that  his  evidence  supported   the
conclusion that Harrold had received enough information  to  make
an intelligent treatment choice.
          Dr.  Artwohl further maintained that Harrold had failed
to  offer  any  contrary evidence.  In making this argument,  the
doctor  pointed to Harrolds recent deposition testimony.   During
his  deposition,  Harrold  testified that  although  he  recalled
discussing the need for an appendectomy with Dr. Artwohl, he  did
not  remember  discussing the possibility of getting  another  CT
scan;  nor  did  he recall being told that there  was  a  fifteen
percent  chance  that  his  appendix was  healthy.   Yet  Harrold
conceded  the  possibility that these  matters  might  have  been
discussed and that he might simply have forgotten the discussion.
Harrold  also  readily admitted that if he had indeed  been  told
that  there  was  an  eighty-five  percent  chance  that  he  had
appendicitis, he would have agreed to the surgery.
          Given  these  concessions, Dr.  Artwohl  insisted  that
Harrolds general inability to recall what had been discussed  did
not  raise a genuine issue of fact reasonably tending to  dispute
the specific evidence describing what was actually discussed.
          Harrold   opposed  Dr.  Artwohls  motion  for   summary
judgment,  insisting that evidence in the record raised  multiple
issues  of  fact as to whether he had received enough information
to  make  an  informed treatment choice.  Harrold pointed  to  an
affidavit  by his sister describing a post-surgical statement  by
Dr.  Artwohl that, in Harrolds view, raised doubts about  whether
the  doctor  had  reviewed Harrolds prior CT  scan.   He  further
argued  that  the  implied  consent form  raised  factual  issues
because  it  made no mention of the specific advice described  in
Dr.  Artwohls pre-operative report and because Harrolds signature
on  the form had been witnessed by Nurse Belic, instead of by Dr.
Artwohl himself  an impermissible procedure according to Harrold.
          Harrolds opposition also focused on a statement made by
Dr.  Artwohl in his deposition.  During his testimony, the doctor
acknowledged  that if Harrold had been given  a  CT  scan  before
having  to  decide if he wanted to proceed with the appendectomy,
the  scan  could have established almost conclusively whether  he
actually  did  or  did not have appendicitis:  according  to  Dr.
Artwohl,  the additional test would have ruled out  or  ruled  in
appendicitis with a high degree of accuracy . . . 98 percent.  In
relevant part, Dr. Artwohl testified as follows:
          Q     And do you see anywhere on that consent
          form  where  it states that a [CT]  scan  can
          conclusively  determine whether  or  not  you
          have appendicitis?
          A    I would never tell a patient that a [CT]
          scan  can conclusively demonstrate.  I  would
          tell  a patient they can predict with a  high
          degree  of  accuracy, but,  no,  its  not  on
          Q    What would be a high degree of accuracy?
          A    98 percent.
          Q     So it would have been 98 percent likely
          that  if a [CT] scan was taken, it would have
          ruled out appendicitis?
          A    Ruled out or ruled in, yes.
This  testimony  prompted Harrold to submit a new  affidavit,  in
which  he  asserted that nobody had ever told him that  the  scan
could  be  so precise in detecting appendicitis; if he had  known
that   the   test  could  have  ruled  out  the  possibility   of
appendicitis,  Harrold claimed, he would have gladly  taken  that
          After  considering the motion for summary judgment  and
the  opposition,  the superior court granted Dr. Artwohls  motion
and dismissed Harrolds informed consent claim.2
          On   appeal  Harrold  challenges  the  superior  courts
decision  to  dismiss  his  informed  consent  claim  on  summary
judgment.3   Harrold insists, as he did below, that the  evidence
concerning  his informed consent claim raises triable  issues  of
material  fact  that  preclude  deciding  the  claim  on  summary
judgment.  In response, Dr. Artwohl maintains that he is entitled
to  summary  judgment  because he presented  undisputed  evidence
establishing that Harrold received all the information he  needed
to give an informed consent.  In Dr. Artwohls view, Harrolds near-
total failure of memory is insufficient to create a genuine issue
of disputed fact.
          We   independently   review  orders  granting   summary
judgment, drawing all reasonable inferences in favor of the  non-
moving  party.4  We will affirm the trial courts order  when  the
evidence establishes that there are no genuine issues of material
fact  and  that  the moving party is entitled to  judgment  as  a
matter  of law.5  The party seeking summary judgment must make  a
prima facie showing that he or she is entitled to judgment on the
established  facts as a matter of law. . . .6  Once this  showing
has been made, the opposing party must demonstrate that a genuine
issue  of  fact  exists to be litigated by showing  that  it  can
produce  admissible evidence reasonably tending  to  dispute  the
movants evidence.7
          Here,   we  must  apply  these  standards  within   the
framework of our statutes and caselaw defining informed  consent.
We   have  previously  recognized  that  [t]he  informed  consent
doctrine  is  based on the principle that every  human  being  of
adult years and sound mind has a right to determine what shall be
          done to his or her own body.8  Alaska Statute 09.55.556 describes
the  basic  duty to obtain informed consent by requiring  that  a
health  care provider inform the patient of the common risks  and
reasonable  alternatives to the proposed treatment or procedure.9
We  have  emphasized that the scope of this duty must  be  viewed
from the patients perspective, not the doctors;10 in keeping with
this  view,  we  have  construed the  statute  to  measure[]  the
physicians duty of disclosure by what a reasonable patient  would
need  to  know  in  order  to  make an informed  and  intelligent
decision.11  This perspective applies in determining all  aspects
of  compliance with the duty, including determinations  involving
the  existence  and  nature  of a risk,  the  likelihood  of  its
occurrence,  and the probability that a reasonable patient  would
consider  the information important when deciding on treatment.12
We   have  also  emphasized  that  determinations  applying   the
reasonable  patient standard must usually be left  to  the  jury:
Whenever nondisclosure of particular risk information is open  to
debate  by  reasonable-minded [persons], the  issue  is  for  the
finder of facts.13
          Harrolds  strongest  basis for  claiming  that  he  has
raised  a genuine dispute on the issue of informed consent  under
these standards centers on whether he received enough information
about  the  possibility  of having a CT scan  before  opting  for
surgery.   As  mentioned  above, Dr.  Artwohl  explained  in  his
deposition  that a CT scan would have ruled in or ruled  out  the
presence  of appendicitis with a ninety-eight percent  degree  of
certainty.  In effect, then, viewing this testimony in the  light
most favorable to Harrold, the doctor acknowledged that a CT scan
would  have  established  to  a near  certainty  whether  Harrold
actually  needed  immediate surgery.  But Dr. Artwohl  apparently
may not have explained this to Harrold.
          Dr.  Artwohl stated in his affidavit that he  discussed
the  possibility of another CT scan with Harrold, but recommended
against choosing that option; he advised Harrold that there was a
15%  chance  that  a normal appendix would be  found  if  Harrold
consented to immediate surgery.  But the doctor thought it  would
be  best  to  proceed with appendectomy because, in the  case  of
continuing  pain, [Harrolds] appendix would always be  an  issue.
Dr.  Artwohl testified that Harrold then decided to proceed  with
          When  we  read  these  statements  in  the  light  most
favorable  to Harrold, as we must in reviewing an order  granting
summary  judgment, they suggest that Dr. Artwohl advised  Harrold
to  forgo  a  CT scan and proceed directly to surgery  despite  a
sizable chance that immediate surgery might not be needed.  To be
sure,  Dr.  Artwohl  also  told Harrold why  the  doctor  thought
Harrold  might as well proceed with the appendectomy even  though
there  was  a  fifteen  percent  chance  that  it  might  not  be
necessary.   But  Dr. Artwohls accounts of his conversation  with
Harrold do not assert, or even suggest, that the doctor explained
what  a CT scan could have shown  that the test could have almost
completely  eliminated the existing uncertainty of Harrolds  need
for  immediate  surgery.  And we find nothing in  the  record  to
suggest that it would have been unreasonable to give Harrold this
          For  his part, Harrold flatly asserts that he was never
told how exact a CT scan could be.  Although he testified at  his
deposition   that   his  lack  of  memory  prevented   him   from
specifically  denying that Dr. Artwohls version of  events  might
true,  in  opposing the summary judgment motion Harrold submitted
an affidavit that is unequivocal on this point:
          At  no  time did Dr. Artwohl or the nurse  or
          anyone at the office state that another  [CT]
          Scan   would   show  to  a  98%   degree   of
          reliability  that  I  did  or  did  not  have
          appendicitis.   It was my understanding  from
          the  discussions with Dr. Artwohl that I  had
          to  have  the laparoscopic appendectomy.   He
          did not tell me it could be prevented with  a
          simple  [CT] Scan which would show to  a  98%
          degree of reliability that I in fact did  not
          have appendicitis.
          In  response,  Dr.  Artwohl argues that  Harrolds  mere
inability to recall what happened is too speculative a  basis  to
sustain  a  genuine issue of fact that would reasonably  tend  to
dispute the evidence on this point.  But this argument focuses on
the   equivocal   statements  Harrold  made  in  his   deposition
testimony.   Harrolds  statements  in  his  later  affidavit  are
neither  speculative nor equivocal: based on personal  knowledge,
he  professes to be certain that nobody ever told him that  a  CT
scan  could confirm his condition to a ninety-eight percent level
of  certainty.   Nor is this claim defeated by  Harrolds  earlier
statements acknowledging an inability to recall exactly what  Dr.
Artwohl  had said.  The credibility of Harrolds claim  cannot  be
considered at summary judgment: we must assume that his claim  is
true.   And  even if credibility could be considered,  his  claim
would  not  necessarily  conflict  with  his  earlier  testimony.
Dr.  Artwohl has never asserted that he told Harrold  what  a  CT
scan  would  do,  so  Harrolds current certainty  on  this  point
coincides  with the doctors account.  It does not  conflict  with
Harrolds earlier inability to contradict what Dr. Artwohl  claims
to have said.
          In  short,  we  conclude  that Harrolds  new  affidavit
raised a genuine factual dispute as to whether he was told that a
CT scan could effectively rule out appendicitis, thus potentially
offering  a  desirable  alternative to immediate  surgery.   This
dispute  does  not  automatically qualify as a triable  issue  of
fact.   Because  conflicting evidence precludes summary  judgment
only  when  the  conflict involves material facts,  we  must  ask
separately  if  the  issue  disputed here  is  material.   As  we
indicated  above,  compliance with the duty  to  obtain  informed
consent  must  ultimately be judged by what a reasonable  patient
would want to know.14  And when the question of what a reasonable
patient  would  deem important is open to legitimate  debate,  it
must ordinarily be decided at trial by the finder of facts.15
          Here,  we  think that reasonable-minded jurors  viewing
the   record  in  the  light  most  favorable  to  Harrold  could
          legitimately debate whether Dr. Artwohl told Harrold what a CT
scan  was  capable  of  ascertaining: standing  alone,  the  mere
mention  of  the possibility of obtaining another CT  scan  might
fail to convey any indication that this possibility would offer a
significant  increase  in  certainty.  We  similarly  think  that
jurors  could  fairly  debate whether  a  reasonable  patient  in
Harrolds shoes would have wanted to hear this information  before
deciding  on  the  appendectomy.   As  matters  apparently  stood
without  the  information, Harrold knew  that,  by  Dr.  Artwohls
estimate,  he  faced  an  eighty-five percent  chance  of  having
appendicits  and  a fifteen percent chance of  having  a  healthy
appendix.   Had  information about the  CT  scans  accuracy  been
disclosed,  Harrold would have gained the knowledge that  further
testing  would either confirm to a near certainty that he  needed
immediate  surgery or all but eliminate the chance  that  he  had
appendicitis.  Given the obvious risk of refusing surgery in  the
face  of  an eighty-five percent chance of appendicitis, a  fair-
minded juror could find that a patient in Harrolds position might
reasonably view this additional knowledge as crucial.
          Because  the dispute involves a genuine issue of  fact,
we  hold  that  the  superior  court erred  in  granting  summary
judgment against Harrold.16
          We  REVERSE the superior courts judgment and REMAND the
case for further proceedings.
     1     Harrold  does not challenge the superior courts  order
dismissing  his  malpractice claim, so we need not  address  that

     2     Harrold initially failed to submit a timely opposition
to  Dr.  Artwohls  motion for summary judgment, so  the  superior
court  entered  an  order  granting the  motion  because  it  was
unopposed.  Harrold then moved for reconsideration and  submitted
a late opposition to the summary judgment motion, together with a
motion to accept his late opposition.  The superior court granted
Harrolds  motion  to accept the late opposition but  declined  to
reconsider  its  order  granting summary judgment.   Given  these
circumstances  Dr. Artwohl acknowledges that the  superior  court
considered  Harrolds opposition in reaching its  ultimate  ruling
and did not dismiss the informed consent claim merely because the
claim was unopposed.

     3    Harrold also appeals the superior courts order awarding
Dr. Artwohl prevailing-party attorneys fees.  Our decision on the
merits  of  Harrolds claim makes it unnecessary to  address  this

     4     See  Kaiser v. Umialik Ins., 108 P.3d 876, 879 (Alaska
2005); Sonneman v. State, 969 P.2d 632, 635 (Alaska 1998).

     5    Sonneman, 969 P.2d at 635.

     6     French  v. Jadon, Inc., 911 P.2d 20, 23 (Alaska  1996)
(citing Wassink v. Hawkins, 763 P.2d 971, 973 (Alaska 1988)).

     7    Id.

     8     Parker  v.  Tomera,  89 P.3d 761,  769  (Alaska  2004)
(quoting Korman v. Mallin, 858 P.2d 1145, 1149 (Alaska 1993)).

     9      AS  09.55.556(a).   The  statute  also  defines   the
necessary  elements of a cause of action for  failure  to  obtain
informed consent and establishes several defenses:

          (a)   A  health care provider is  liable  for
          failure to obtain the informed consent  of  a
          patient  if  the  claimant establishes  by  a
          preponderance  of  the  evidence   that   the
          provider has failed to inform the patient  of
          the  common risks and reasonable alternatives
          to  the proposed treatment or procedure,  and
          that  but for that failure the claimant would
          not  have consented to the proposed treatment
          or procedure.
          (b)   It  is  a  defense to  any  action  for
          medical  malpractice based  upon  an  alleged
          failure to obtain informed consent that
          (1)   the  risk not disclosed is too commonly
          known or is too remote to require disclosure;
          (2)   the  patient stated to the health  care
          provider  that the patient would undergo  the
          treatment or procedure regardless of the risk
          involved or that the patient did not want  to
          be  informed  of  the matters  to  which  the
          patient would be entitled to be informed;
          (3)  under the circumstances consent by or on
          behalf of the patient was not possible; or
          (4)    the   health   care   provider   after
          considering  all of the attendant  facts  and
          circumstances  used reasonable discretion  as
          to   the   manner   and   extent   that   the
          alternatives or risks were disclosed  to  the
          patient  because  the  health  care  provider
          reasonably  believed that a  full  disclosure
          would have a substantially adverse effect  on
          the patients condition.
     10    Marsingill v. OMalley, 58 P.3d 495, 503 (Alaska 2002).

     11    Id. (citing Korman, 858 P.2d at 1149).

     12    Id. (citing Korman, 858 P.2d at 1149).

     13    Korman, 858 P.2d at 1151 (citing Canterbury v. Spence,
464 F.2d 772, 788 (D.C. Cir. 1972)).

     14    Marsingill, 58 P.3d at 504.

     15    Korman, 858 P.2d at 1151.

     16     Harrolds remaining summary judgment arguments require
only brief mention.  We find no merit to Harrolds contention that
the implied consent form obtained here was invalid because it was
witnessed by Nurse Belic instead of being signed in Dr.  Artwohls
presence.   Neither AS 09.55.556 nor its implementing regulation,
7 AAC 12.120, can be reasonably read to require that the treating
physician  personally read the consent form  to  the  patient  or
witness  the  patients  signature.   Harrold  misreads  Ward   v.
Lutheran  Hospitals & Homes Society of America,  Inc.,  963  P.2d
1031,  n.12 (Alaska 1998), as providing support for his position.
Ward  simply recognizes that the duty to obtain informed  consent
extends  only to a health care provider who proposes and  directs
the procedure at issue; it does not imply that a provider to whom
this duty extends is the only person who can obtain the consent.

          We similarly find no merit in Harrolds assertion that a
genuine  issue  of material fact arises from the  fact  that  his
implied  consent  form  fails to recite the specific  information
that  Dr. Artwohl claims he discussed with Harrold.  Neither  the
statute  nor  the  regulation requires the  form  to  recite  the
information communicated in obtaining informed consent.

          Last,  we  reject Harrolds contention that his  sisters
affidavit  raises  a  genuine  factual  dispute  concerning   Dr.
Artwohls  awareness of Harrolds previous CT scan.  The  affidavit
asserts  that Dr. Artwohl asked Harrolds sister after the surgery
whether  Harrold  had  previously had his appendix  x-rayed;  but
standing  alone,  the  mere fact that  Dr.  Artwohl  asked  about
previous x-rays does not support a reasonable inference  that  he
must not have known about the recent CT scan.

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