Appeal from the United States District Court for the Southern District of Illinois. No. 82-3069 -- James L. Foreman, Chief Judge.
Before CUMMINGS, Chief Judge, BAUER, Circuit Judge, and CAMPBELL, Senior District Judge.*fn*
CAMPBELL, Senior District Judge.
On November 2, 1978, Mr. James Pardy visited the Scott Air Force Base (SAFB) Primary Care Clinic after having felt poorly for a week to ten days. He was suffering from a cough and fever and he suspected the flu. Tests were performed. Mr. Pardy was given erythromycin and decongestants and released. He was asked to return the following day. On the next day, November 3, Mr. Pardy returned feeling worse, experiencing an aching groin, high fever, nausea and a headache. Dr. William R. Kelso III discovered Mr. Pardy had experienced burning during urination and had a high white blood cell count. Pyelonephritis, or a kidney infection, was now suspected. An I.V.P., an intravenous urogram, was ordered for Mr. Pardy. The test involves injecting an iodine contrast medium or dye into a vein in order to highlight internal organs for X-ray. After a subsequent physical examination of Mr. Pardy, Dr. Kelso also discovered an enlarged, tender prostrate and penile discharge. This indicated prostatitis rather than kidney infection. The medical signs had now become mixed.
Dr. Kelso waited until the next day to do anything. On November 4, Mr. Pardy's condition had drastically improved. Dr. Kelso discussed with his supervisor whether the I.V.P. was still desirable. If Mr. Pardy suffered from prostatitis, the I.V.P. was not necessary. However, several of Mr. Pardy's symptoms, such as the high white blood cell count and his history of a urinary tract infection, indicated there may be more than prostatitis involved. An obstruction or lesion in the urinary tract was a possibility. Indeed, such a condition could also cause the prostate to become enlarged, as was the case with Mr. Pardy. These concerns led the doctors to conclude an I.V.P. was still the desirable route to take.
Mild reactions affect approximately 15% of patients who are administered an I.V.P. (sweating, nausea, vomiting and hives). However, there is also a remote risk of a severe reaction to an I.V.P. One in 14,000 patients suffer from a severe reaction (severe drop in blood pressure or cardiopulmonary collapse). One in 40,000 patients dies due to an I.V.P. based on these odds and on this experience, Dr. Kelso believed an informed consent was unnecessary before an I.V.P. was performed. While he did tell it was administered, and a few of the mild side effects from the test, no written or informed consent was ever secured from Mr. Pardy or his wife.
On November 6, the I.V.P. was administered to Mr. Pardy. Dr. Daley, a radiologist, injected Mr. Pardy with the appropriate dye (called Conray 60). Prior to injection Dr. Daley asked Mr. Pardy if he ever had an I.V.P. or was allergic to any drugs. Mr. Pardy answered no. Dr. Daley also did not obtain an informed or written consent from Mr. Pardy because in his opinion standard medical practice did not require it. Indeed, Dr. Daley believed informing patients of the remote possibility of a severe reaction to the I.V.P. would increase patient anxiety which in turn would increase the chance of a severe reaction. A severe reaction could become self-inducing.
Shortly after the injection Mr. Pardy became nauseous and began to vomit. When the vomiting subsided, Dr. Daley proceeded to the X-ray room to take X-rays. Shortly thereafter, Mr. Pardy curled up on the table. When attended to he became combative. He was unable to breathe. Mr. Pardy began to have seizures, the first time a patient of Dr. Daley's had had such a severe reaction after the performance of approximately 600 I.V.P. tests. Dr. Daley summoned the appropriate emergency hospital personnel. In sum it took approximately seven minutes before Mr. Pardy was able to breathe regularly again. Unfortunately, however, by this time Mr. Pardy had suffered brain damage due to an inadequate supply of oxygen.
Plaintiff Sue Pardy, guardian of the estate of James Pardy, subsequently filed this lawsuit in the United States District Court for the Southern District of Illinois. The suit arises under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. A bench trial was held on July 24-26, 1984 and Chief Judge James Foreman entered judgment in favor of the defendant, the United States. Our review for appellate purposes centers on the issue of whether the failure of SAFB hospital physicians to obtain an informed consent from Mr. Pardy before performing the I.V.P. fell below the acceptable standard of medical care, constituting medical malpractice/negligence. There is also a second issue as to whether the failure to obtain an informed consent proximately caused Mr. Pardy's injuries. A third issue plaintiff raises is whether the district court erred in refusing to allow the introduction of learned treatises for the purpose of cross-examining defendant's expert witnesses. We note an allegation of medical malpractice concerning the hospital's resuscitation procedures is not presented for review on this appeal.
As previously mentioned, this case arises under the Federal Tort Claims Act, 28 U.S.C. § 2671. The law of the State of Illinois controls because that is where the act or omission surrounding this case occurs. 28 U.S.C. 1346 (b). The case of Green v. Hussey, 127 Ill. App. 2d 174, 262 N.E.2d 156 (1970), has been uniformly recognized as the lead case in Illinois which articulates the standard to be applied in informed consent cases. (See, for example, Ziegert v. South Chicago Community Hosp., 99 Ill. App. 3d 83, 54 Ill. Dec. 585, 425 N.E.2d 450, 459 (1981) for recognition of the authority attached to Green, supra.)*fn1 In Green, the Appellate Court of Illinois, First District, First Division stated:
"We conclude that to establish liability for defendants' failure to inform plaintiff of the foreseeable risks . . ., plaintiff had the burden of proving by expert medical evidence that the reasonable medical practitioner of the same school, in the same or similar circumstances, would have told the patient of such risks, or that the disclosures as made by the defendants did not meet the standard of what a reasonable medical practitioner would have disclosed under the same or similar circumstances." See Green, supra, 262 N.E.2d at 161. (Citations omitted.)
This statement was more recently elaborated upon and endorsed in Guebard v. Jabaay, 117 Ill. App. 3d 1, 72 Ill. Dec. 498, 452 N.E.2d 751 (1983):
"The reasonable physician or national standard simply measures the standard of physician disclosure by what a reasonable physician would disclose under the same or similar circumstances. (Ziegert v. S. Chicago County Hosp., 99 Ill.App.3d 83, 92, 54 Ill.Dec. 585, 425 N.E.2d 450.) This is the rule in Illinois and remains the majority rule today. (See Cowman v. Hornaday, 329 N.W.2d 422, 425 (Iowa 1983); see also Harnish v. Children's Hosp. Med. Center, 387 Mass. 152, 439 N.E.2d 240, 243 n. 4 (collecting cases from 13 other jurisdictions).) This rule substitutes a national standard of reasonable and ordinary care for the traditional locality standard. (Cross v. Trapp, 294 S.E.2d 446, 451 citing 82 W.Va.L.Rev. 251, 275 (1979).)"
Plaintiff does not argue along the lines that a reasonable medical practitioner at a civilian hospital under similar circumstances would have told Mr. Pardy about the severe medical risks associated with an I.V.P. test. Indeed, this hypothesis is simply not supported by the expert medical testimony at trial. Instead, plaintiff argues the standard of care to be applied in this case is that applied to military hospitals established by the "Patient's Bill of Rights" manual published by the American Hospital Association as well as another "patient's right ...