Carr v. Strode

This case concerns a failed vasectomy 1 operation that resulted in the unplanned birth of a healthy child. Plaintiffs-appellants/cross-appellees Robin R. Carr (Carr), individually and as prochein ami of Ellen R. Carr (Ellen), and Donna Sorrell (Sorrell) (collectively, plaintiffs) claim, inter alia, that defendants-appellees/cross-appellants Walter S. Strode, M.D. (Dr. Strode) and Straub Clinic & Hospital, Inc. (Straub) (collectively, defendants) failed to obtain Carr’s informed consent to perform the vasectomy operation.

Although the jury returned a verdict in favor of plaintiffs on the informed consent claim, judgment was entered in favor of defendants pursuant to the trial court’s grant of defendants’ motion for a judgment notwithstanding the verdict (JNOV). The trial court also conditionally granted defendants’ alternative motion for new trial, ruling that, if the judgment entered in their favor was vacated or reversed on appeal, defendants would be entitled to a new trial.

Plaintiffs now appeal from the judgment in favor of defendants and the trial court’s conditional grant of a new trial. Defendants cross-appeal from various pretrial rulings on summary judgment motions and motions in limine as well as the trial court’s giving of plaintiffs’ instruction no. 11.

For the reasons discussed below, we: (1) affirm the (a) order denying defendants’ motion for summary judgment, or, in the alternative, for partial summary judgment, (b) order denying defendants’ various motions in limine, and (c) court’s giving of plaintiffs’ instruction no. 11; and (2) reverse the (a) judgment in favor of defendants, (b) conditional grant of a new trial, (c) order granting *478 plaintiffs’ motion for partial summary judgment, and (d) order denying defendants’ motion for reconsideration. Accordingly, we remand this case for a new trial on the issue of informed consent.

I. BACKGROUND

A. Facts

Carr and Sorrell are married, and, at the time of Carr’s vasectomy, resided in Hawaii. 2 During Sorrell’s pregnancy with their second child, Carr and Sorrell decided not to have any more children because of financial and educational concerns. After she gave birth to her second child, Sorrell planned to have a tubal ligation. 3 However, because his wife had just endured nine months of pregnancy and had difficulty scheduling the tubal ligation operation, Carr volunteered to undergo the vasectomy surgery.

In November 1985, Carr had his first vasectomy consultation with Dr. Strode, a Straub employee. On December 5, 1985, Carr, accompanied by Sorrell, had a second vasectomy consultation with Dr. Strode. Dr. Strode performed the vasectomy operation on December 9, 1985, and subsequently saw Carr on December 12, 1985 for a follow-up examination. On January 13, 1986, Straub informed Carr that, because no live sperm had been found in the sperm sample analysis taken after the vasectomy, he was sterile.

In April 1986, Sorrell discovered that she was pregnant. On April 26, 1986, Carr gave Dr. Strode another sperm sample, which, upon analysis, revealed 340,000 dead sperm. At trial, Dr. Strode admitted that dead sperm could indicate that Carr was producing live sperm. On April 30, 1986, Carr submitted a second sperm sample which contained 21 sperm, six of which were live. Although Dr. Strode offered to perform a second vasectomy at no charge to Carr, Carr rejected this offer because he believed that Dr. Strode had performed the first vasectomy incorrectly.

On November 10, 1986, Carr met with Robert Lewis Simich, M.D. (Dr. Simich) to discuss a second vasectomy. However, Carr was uncertain about undergoing the second procedure because Sorrell had scheduled a tubal ligation to be performed immediately after the impending birth of their third child. Sorrell gave birth to Ellen on November 27, 1986, but no doctors were available to perform the scheduled tubal ligation because of the Thanksgiving holiday. Thereafter, because Sorrell was unable to arrange for a tubal ligation due to her work schedule, Carr decided to have the second vasectomy operation, which Dr. Simich performed on December 26, 1986.

B. Prior Proceedings

On June 28, 1988, plaintiffs filed a five-count complaint against defendants, alleging: (1) general negligence and/or malpractice; (2) breach of warranty; (3) lack of informed consent; (4) negligent misrepresentation; and (5) permanent disruption of plaintiffs’ marital relationship.

In August 1989, the circuit court entered an order granting defendants’ motion for partial summary judgment, disposing of count I of the plaintiffs’ complaint, relating to general negligence and/or medical malpractice. Subsequently, the circuit court denied defendants’ motion for partial summary judgment, wherein they sought a ruling that child-rearing costs were not recoverable under plaintiffs’ claim for wrongful pregnancy.

Plaintiffs then filed a motion for partial summary judgment limited to a factual finding that Dr. Strode failed to inform plaintiffs of either the risk of failure or the failure rate associated with a vasectomy. Although the circuit court declined to rule that defendants had breached any duty to plaintiffs, it found as a factual matter that Dr. Strode had “failed to specifically state to plaintiff Robin Carr that the vasectomy procedure might fail and if such failure were to occur that it would or could cause the plaintiff to remain fertile *479 or become fertile again in the future.” The circuit court, however, expressly did not otherwise limit “any party’s right to offer testimony concerning information provided to Carr prior to the [vasectomy] or the surrounding circumstances thereto.”

Defendants moved for reconsideration of the circuit court’s order, arguing that the court had improperly made a factual finding on a motion for partial summary judgment. The circuit court denied defendants’ motion.

Prior to the December 1991 trial date, defendants filed several motions in limine to preclude or limit plaintiffs from introducing evidence of child-rearing costs and to prevent Sorrell from signing, correcting, or changing the transcript of her deposition taken in August 1991. The trial court denied these motions.

Jury trial commenced on December 9, 1991. During the trial, the trial court entered an order granting defendants’ motion for a directed verdict on the breach of warranty claim, disposing of count II of plaintiffs’ complaint, and denying all oral motions for directed verdicts made in open court on the remaining claims.

On December 17,1991, the jury returned a verdict in favor of plaintiffs, awarding them $75,000.00 in general damages on count III (lack of informed consent) only. Judgment was entered accordingly.

Post trial, defendants filed a motion for a JNOV, or, in the alternative, for a new trial. After a hearing on the matter, the trial court granted .defendants’ motion for a JNOV because the jury instructions had stated that “the plaintiff must prove liability and legal cause based on medical expert evidence,” noting that it had heard “no medical evidence presented by the plaintiff Robin Carr at all.”

In addition, the trial court alternatively granted defendants’ motion for a new trial “based upon differences or irreconcilable differences” in the jury’s answers on the special verdict form. The trial court again noted that “there [was] no medical evidence submitted by the plaintiff, one way or the other, to prove his theory plus tie it in as a legal cause for the injuries suffered by the plaintiff.” Following the trial court’s entry of its written order, these timely appeals were filed.

II. DISCUSSION

A. Plaintiffs’ Appeal

As previously indicated, the trial court granted defendants’ motion for a JNOV because plaintiffs presented “no medical evidence ... at all.” We thus first consider whether Hawaii’s informed consent doctrine requires a plaintiff to provide expert medical evidence in support of a claim for a physician’s failure to disclose the risks of harm prior to treatment.

1. Hawaii’s Doctrine of Informed Consent and the Expert Medical Testimony Requirement

In Nishi v. Hartwell, 52 Haw. 188, 191, 473 P.2d 116, 119 (1970), this court acknowledged a common law cause of action for a physician’s negligent failure “to disclose to [his or her] patient all relevant information concerning a proposed treatment, including the collateral hazards attendant thereto.” In Ni-shi, the plaintiff (Nishi), sought to recover damages for injuries he suffered that allegedly resulted from his undergoing a thoracic aortography, a diagnostic surgical procedure used to detect aneurysms. The procedure was recommended and performed by the defendant-physicians.

In Nishi, we initially noted that: (1) the complaint framed the action as one sounding in battery, for the defendants’ unlawful touching of Nishi without his consent; (2) battery, however, was inapplicable to the case because Nishi had consented to defendants’ touching; and (3) pursuant to Hawai'i Rules of Civil Procedure Rule 15(b), because the right of a plaintiff to relief does not depend on his or her allegations or his or her theory of the case, we treated the action as one sounding in negligence, explicitly recognizing and adopting the tort cause of action based on a physician’s breach of his or her duty to disclose to his or her patient all relevant information concerning a proposed treatment, which reflected a growing nationwide trend. Id. at 190-91, 473 P.2d at 118-19.

*480 Despite our acknowledgment of the doctrine of informed consent, we nevertheless affirmed the trial court’s dismissal of Nishi’s complaint for two alternative reasons. First, the defendant-physicians’ alleged failure to disclose the collateral risk of the thoracic aortography procedure that injured Ni-shi was justified by the therapeutic privilege exception to the physician’s duty to disclose risk information. This exception recognizes that, under some circumstances, disclosure of certain risks would not be in the patient’s best medical interests. Undisputed testimony was presented at trial that Nishi was apprehensive about his heart and circulatory system problems and that disclosure of information may have exacerbated his condition. Id. at 193, 473 P.2d at 120.

Second, and most importantly for the present case, under the “physician-oriented” or “professional” standard of disclosure, Ni-shi bore the burden to produce expert medical testimony “to establish a medical standard from which the jury could find that defendants deviated from their duty [of disclosure] to [the plaintiff].” Id. at 196, 473 P.2d at 121. We noted:

In determining the question of [a] physician’s liability for nondisclosure courts generally follow the rule applicable to medical malpractice actions predicated on alleged negligence in treatment which requires the question of negligence to be decided by reference to relevant medical standards and imposes on the plaintiff the burden of proving the applicable standard by expert medical testimony.

Id. at 195, 473 P.2d at 121 (emphasis added) (citations omitted). Because Nishi had failed to adduce expert medical testimony regarding what physicians in the community disclosed to their patients regarding the particular medical procedure, we affirmed the trial court’s dismissal of Nishi’s complaint, and by so holding, adopted the “physician-oriented” standard of disclosure for actions based on the doctrine of informed consent.

Two years later, however, the United States Court of Appeals for the District of Columbia Circuit decided the seminal case of Canterbury v. Spence, 464 F.2d 772, reh’g denied, 464 F.2d 772 (D.C.Cir.), cert. denied, 409 U.S. 1064, 93 S.Ct. 560, 34 L.Ed.2d 518 (1972), and spearheaded what has become known as the “patient-oriented” standard of disclosure for actions founded on the doctrine of informed consent. Agreeing that “the physician’s noncompliance with a professional custom to reveal, like any other departure from prevailing medical practice, may give rise to liability to the patient,” the Canterbury court nevertheless disagreed with the then-prevailing view that the patient’s cause of action is “dependent upon the existence and nonperformance of a relevant professional tradition.” Id. at 783. The court, in expressing its concerns with the physician-oriented standard, stated:

There are, in our view, formidable obstacles to acceptance of the notion that the physician’s obligation to disclose is either germinated or limited by medical practice. To begin with, the reality of any discernible custom reflecting a professional con-census on communication of option and risk information to patients is open to serious doubt. We sense the danger that what in fact is no custom at all may be taken as an affirmative custom to maintain silence, and that physician-witnesses to the so-called custom may state merely their personal opinions as to what they or others would do under given conditions. We cannot gloss over the inconsistency between reliance on a general practice respecting divulgence and, on the other hand, realization that the myriad of variables among patients makes each case so different that its omission can rationally be justified only by the effect of its individual circumstances. Nor can we ignore the fact that to bind the disclosure obligation to medical usage is to arrogate the decision on revelation to the physician alone. Respect for the patient’s right of self-determination on particular therapy demands a standard set by law for physicians rather than one which physicians may or may not impose upon themselves.

Id. at 783-84. Thus, dissatisfied with the physician-oriented standard and acknowledging that the patient’s right of self-determination regarding submission to a particular medical procedure “can be effectively ex *481 ercised only if the patient possesses enough information to enable an intelligent choice,” id. at 786, the Canterbury court concluded that “the scope of the physician’s communications to the patient ... must be measured by the patient’s need, and that need is the information material to the decision.” Id. (emphasis added). Therefore, the test for determining “whether a particular peril must be divulged is its materiality to the patient’s decision: all risks potentially affecting the [patient’s] decision must be unmasked.” Id. at 786-87.

The Canterbury court was quick to note, however, that the central inquiry of “materiality” was to be judged by an objective standard:

The scope of the standard is not subjective as to either the physician or the patient; it remains objective with due regard for the patient’s informational needs and with suitable leeway for the physician’s situation. In broad outline, we agree that a risk is thus material when a reasonable person, in which the physician knows or should know to be the patient’s position, would be likely to attach significance to the risk or cluster of risks in deciding whether or not to forego the proposed therapy.

Id. at 787 (internal footnote and quotation marks omitted). In this context, many considerations factor into the factfinder’s determination of materiality:

The topics importantly demanding a communication of information are the inherent and potential hazards of the proposed treatment, the alternatives to that treatment, if any, and the results likely [to be expected] if the patient remains untreated. The factors contributing significance to the dangerousness of a medical technique are, of course, the incidence of injury and the degree of the harm threatened. A very small chance of death or serious disablement may well be significant; a potential disability which dramatically outweighs the potential benefit of the therapy or the detriments of the existing malady may summon discussion with the patient.

There is no bright line separating the significant from the insignificant; the answer in any case must abide a rule of reason. Some dangers — infection, for example — are inherent in any operation; there is no obligation to communicate those of which persons of average sophistication are aware. Even more clearly, the physician bears no responsibility for discussion of hazards the patient has already discovered, or those having no apparent materiality to patients’ decision on therapy. The disclosure doctrine, like others marking lines between permissible and impermissible behavior in medical practice, is in essence a requirement of conduct prudent under the circumstances. Whenever nondisclosure of particular risk information is open to debate by reasonable-minded [persons], the issue is for the finder of the facts.

Id. at 787-88.

Following Canterbury, the Hawai'i legislature in 1976 enacted HRS chapter 671, which deals with medical torts, and codified the tort of a physician’s negligent failure to disclose risk information prior to treatment. The statute was subsequently amended in 1988. Today, HRS § 671-3 (1985) deals specifically with informed consent and provides in pertinent part:

Informed consent; board of medical examiners standards.

(a) The board of medical examiners, insofar as practicable, shall establish standards for health care providers to follow in giving information to a patient, or to a patient’s guardian if the patient is not competent to give an informed consent, to insure that the patient’s consent to treatment is an informed consent. The standards may include the substantive content of the information to be given, the manner in which the information is to be given by the health care provider and the manner in which consent is to be given by the patient or the patient’s guardian.

(b) 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;

*482 (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

(5) The recognized serious possible risks, complications, and anticipated benefits involved in the treatment or surgical procedure, and in the recognized possible alternative forms of treatment, including non-treatment,

then the standards shall be admissible as evidence of the standard of care of the health care providers.

(Bold in original.)

Recognizing Canterbury’s innovations in the doctrine of informed consent and faced with the question of the effect of HRS chapter 671 on Hawaii’s doctrine of informed consent, the Intermediate Court of Appeals (ICA) in Leyson v. Steuermann, 5 Haw.App. 504, 705 P.2d 37 (1985), closely examined our decision in Nishi and questioned the continued viability of Nishi ⅛ pronouncements regarding a physician’s duty to disclose risk information regarding proposed medical treatment. In Leyson, the ICA suggested that Nishi ⅛ descriptions of the doctrine “appear to be contradictory,” noting that the Nishi opinion “initially describes the doctrine as a precise and definite duty but then it alternatively describes the doctrine as a duty to comply with relevant medical standards.” Id. at 513, 705 P.2d at 44.

Citing Canterbury, the Leyson court noted that the portion of Nishi that imposed on the plaintiff the burden of proving the applicable standard by expert medical testimony

fails to recognize that “[ejvery human being of adult years and sound mind has a right to determine what shall be done with his [or her] own body,” and that what the medical profession thinks their patients should be told is not necessarily what their patients would find significant in making their informed choices.

Id. at 513, 705 P.2d at 44-45 (brackets in original) (quoting Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 129, 105 N.E. 92, 93 (1914)). However, despite the ICA’s discomfort over the state of the law and, although the plaintiffs in Leyson had submitted jury instructions couched in the patient-oriented viewpoint, the Leyson court did not reach the issue whether the physician- or patient-oriented standard governed the physician’s duty of disclosure in Hawaii, because the plaintiffs in Leyson had agreed to the presentation of the defendant’s proposed instruction regarding the standard of disclosure.

Moreover, the ICA noted that the duty to disclose, as prescribed by HRS § 671-3 and as delineated in our opinion in Nishi, were in conflict — where Nishi mandates a duty to disclose “all collateral hazards,” HRS § 671-3 requires a physician to disclose “the probable risks and effects of the proposed treatment or surgical procedure.” 4 Although the ICA noted that “[i]t is not clear from the language or history of chapter 671 whether the legislature’s intent was to supplant Ni-shi’s ambiguously defined duty of disclosure,” it nevertheless identified five material elements of the tort of a physician’s negligent *483 failure to disclose the risks of harm prior to treatment: (1) the physician owed a duty to disclose to the patient prior to treatment the risk of the harm suffered by the patient; (2) the physician negligently performed or failed to perform his [or her] duty of disclosure; (3) the patient suffered the harm; (4) the physician’s negligent performance or nonperformance of duty was the [legal] cause of the patient’s harm in that (a) the physician’s treatment was a substantial factor in bringing about the patient’s harm, and (b) the patient, acting rationally and reasonably, would not have undergone the treatment had he or she been properly informed of the risk of the harm that in fact occurred; and (5) no other cause is a superseding cause. See Leyson, 5 Haw.App. at 516-17, 705 P.2d at 47.

Two years later, in Mroczkowski v. Straub Clinic & Hospital, Inc., 6 Haw.App. 563, 732 P.2d 1255 (1987), the ICA revisited the informed consent doctrine and explicitly held that HRS chapter 671 “modified the description of the general standards of required disclosures announced in Nishi” Id. at 567, 732 P.2d at 1258. The ICA explained:

Act 219[, § 2, 1976 Haw.Sess.Laws 523-24] (1976) directed the board of medical examiners (board) to specifically itemize the probable risks and effects of each specific treatment or surgical procedure. It made the resulting specific itemizations, if any, prima facie evidence of what the physician was required to disclose to the patient before obtaining the patient’s informed consent.

Act 223[, § 1, 1983 Haw.Sess.Laws 468-69] (1983) asked the board to establish specific standards for health care providers to follow in disclosing information to a patient before obtaining the patient’s informed consent. It made the board’s specific standards, if any, admissible as evidence of the required specific standards of care only if the board’s specific standards are designed to reasonably inform the patient of, inter alia, the recognized serious possible risks and complications of each specific treatment or surgical procedure.

Since under both Acts 219 and 22S the board’s specifically itemized components of the statutory general standard are relevant evidence of the applicable general standard, it necessarily follows that the statutory general standard is the applicable general standard.

Id. at 567, 732 P.2d at 1258 (emphasis added). Because Mroczkowski was injured in 1980, the ICA applied the 1976 statutory standard. In so doing, the ICA held that, had the Board of Medical Examiners developed the specifically itemized components of the statutory general standard, as contemplated by HRS § 671-3(b) (1976), Mroczkow-ski would have been required to prove the specific components because, as stated in the statute, the board’s itemization would have been prima facie evidence of the specific information required to be given. Due to the overwhelming amount of medical and surgical procedures, however, the board did not comply with HRS § 671-3(b), and the ICA accordingly held that “Mroczkowski was therefore required to prove by proper evidence that the harm he is complaining about was a probable risk....” Id. at 568, 732 P.2d at 1259 (emphasis added). The ICA, however, did not further elucidate as to what would constitute “proper evidence,” and, moreover, explicitly declined, in a footnote, to answer the question whether the “seriousness” of the risk as delineated in the 1983 amendments to HRS § 671-3 was “to be answered from the point of view of the patient, the physician, or otherwise.” Id. at 567-68 n. 1, 732 P.2d at 1259, n. 1.

Subsequently, in Keomaka v. Zakaib, 8 Haw.App. 518, 811 P.2d 478, cert. denied, 72 Haw. 618, 841 P.2d 1075 (1991), the ICA explicitly held that the statutory standard set out in HRS § 671-3(b) would govern the physician’s duty of disclosure and noted that “a physician or surgeon has a duty to reasonably inform his [or her] patient regarding those items specified in HRS § 671-3(b) as to the proposed treatment or surgical procedure in order to obtain an informed consent from his [or her] patient.” Id. at 524, 811 P.2d at 482-83. The Keomaka court did not, however, address the issue whether the statutory factors were to be viewed from, the viewpoint of the physician or the patient.

*484 Finally, in Bernard v. Char, 79 Hawai'i 371, 903 P.2d 676 (Haw.App.1995), cert. granted, 78 Hawai'i 474, 896 P.2d 930 (1995), the ICA explicitly addressed the issue whether the physician’s duty of disclosure, in the dental context, would be assessed from the viewpoint of the physician or the patient. In Bernard, the ICA reiterated the physician’s duty to disclose risk information as phrased in Nishi that a physician owes a duty to disclose “all relevant information concerning a proposed treatment, including the collateral hazards attendant thereto, so that the patient’s consent to the treatment would be an intelligent one based on complete information.” Bernard, 79 Hawai'i at 382, 903 P.2d at 687. Citing “growing acceptance in recent years” for the patient-oriented standard across the nation, the ICA held that, “[b]e-cause the focus of this duty is on what information a patient needs in order to make an intelligent decision regarding a course of treatment, we conclude that the patient standard applies.” Id., 79 Hawai'i at 382, 903 P.2d at 687. The ICA went on to explain:

Under the patient standard, expert testimony is not critical to demonstrate the amount of information a patient needs in order to intelligently decide between two treatment options. The decision as to what procedure to undergo is ultimately the patient’s; to impose a standard of disclosure dictated by experts would be to undermine the decision-making power of patients in similar situations. Therefore, in proving the element of duty for informed consent purposes, a patient is not required to produce any expert medical testimony regarding what other reasonable dentists would have disclosed under the same or similar circumstances.

Id. (emphasis added.) The Bernard court cautioned, however, that the adoption of the patient standard “should not be construed to mean that expert [medical] testimony may be dispensed with entirely in informed consent cases,” id., 79 Hawai'i at 383, 903 P.2d at 688, and noted that “[e]xpert testimony will still be required 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.” Id. (internal quotation marks, internal brackets, and citation omitted).

However, the Bernard court did note that, regarding the therapeutic privilege exception, pursuant to Nishi, the physician-oriented standard applied because a physician’s nondisclosure of risk information pursuant to the therapeutic privilege exception would be based on the physician’s exercise of his or her professional judgment. Id., 79 Hawai'i at 381-82, 903 P.2d at 686-87. As noted in Nishi, a defendant doctor’s testimony may, in appropriate circumstances, satisfy the expert testimony requirement pursuant to the physician-oriented standard.

2. The Patient-Oriented Standard Governs the Physician’s Duty to Disclose Risk Information Prior to Treatment

Ideally, and in the abstract, the physician-oriented standard — ie., what a reasonable physician believes should be disclosed to a patient prior to treatment in order for the patient to make an informed and intelligent decision regarding a course of treatment or surgery — and the patient-oriented stan dard — ie., what a reasonable patient needs to hear from his or her physician in order to make an informed and intelligent decision regarding treatment or surgery — would dictate the same scope of disclosure, barring the applicability of any of the exceptions to a physician’s duty to disclose. We must assume, for purposes of fashioning a prospective rule, that physicians seek to provide their patients with the same amount and quality of risk information prior to treatment that the patient would need to hear in order to make an informed and intelligent choice. Both standards, therefore, tempered by objectivity, seek to achieve the same goal, that is, to insure that the patient’s decision to undergo a particular medical procedure is an informed and intelligent decision.

The dispositive issue, therefore, is one of proof; in other words, which party’s viewpoint should dictate the standard against which the conduct in issue should be judged? The Bernard court provided the following rationale:

*485 Courts which apply [the patient-oriented] standard emphasize what the patient needs to know to make an informed decision, rather than what the medical community thinks the patient should be told.... [The patient-oriented] standard provides the patient with effective protection against a possible conspiracy of silence wherever it may exist among physicians. Moreover, since the patient must suffer the consequences, and since he or she bears all the expenses of the medical treatment, fundamental fairness requires that the patient be allowed to know what risks a proposed treatment entails, what the alternatives thereto are and the relative probabilities of success.

Id., 79 Hawai'i at 381, 903 P.2d at 686 (internal quotation marks and citations omitted). Analogously, the Canterbury court reasoned as follows:

The duty to disclose ... arises from phenomena apart from medical custom and practice. The latter, we think, should no more establish the scope of the duty than its existence. Any definition of scope in terms purely of a professi