Miller v. Kennedy

522 P.2d 852 (1974)

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Nature of the Case

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Facts

D was a board-certified specialist in internal medicine with subspecialties in heart and nephrology. P came to D complaining of fatigue, shortness of breath, and lightheadedness. P found a first-degree heart block after an electrocardiogram. Less than a week later, D found a second and third-degree heart block. D was hospitalized under intensive care. The search was on for the source of the problem. Kidney problems were diagnosed, and a biopsy was to be performed. P claims that D did not inform him of the risk of losing a kidney from the procedure nor did D inform P of alternative methods of performing biopsies. P claims he would not have consented if he had known of the risk of loss. D claims he informed P. D’s version of the story was backed up by hospital records and by the prior conduct of D in which D explained to P in detail what was happening to P’s heart. P contends that the biopsy needle was negligently inserted causing damage and injury to the kidney, which resulted in its loss. The biopsy was the proximate cause of the loss of the kidney. The entire kidney eventually had to be removed. P contends that D violated the standard of care. At trial, P objected to the informed consent instruction in that it wrongfully placed the burden upon P to prove a failure to inform. The verdict went to D and P made motions for a new trial or judgment n.o.v. and both were denied. P appealed.