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| [1] | In the Supreme Court of Georgia |
| [2] | S99G0600. |
| [3] | 2000.GA.0042358 <http://www.versuslaw.com> |
| [4] | March 6, 2000 |
| [5] | ALBANY UROLOGY CLINIC, PC, ET AL. V. CLEVELAND, ET AL. |
| [6] | The opinion of the court was delivered by: Sears, Justice. |
| [7] | Certiorari was granted to consider the Court of Appeals' ruling that a
patient was authorized to bring a claim against a physician for the latter's
failure to disclose his use of illegal drugs. *fn1
The evidence of record indicates that during the general time of the patient's
treatment, the physician used drugs outside of work and when he was not
on call. In its ruling, the Court of Appeals concluded that one who suffers
injury during medical treatment that was consented to in conjunction with
a "physician's . . . non-disclosure, or concealment of a material fact which
the patient has a right to know," in this case illegal drug use, entitles
the patient to recover damages for fraud and battery. *fn2
We conclude, however, that absent inquiry by a patient or client, there
is neither a common law nor a statutory duty on the part of either physicians
or other professionals to disclose to their patients or clients unspecified
life factors which might be subjectively considered to adversely affect
the professional's performance. It follows that the failure to make such
voluntary disclosure cannot provide a basis for a fraud claim, nor can it
vitiate a patient's consent so as to authorize an action for battery. Therefore,
while we find the physician's behavior reprehensible, we must reverse. |
| [8] | In 1993, appellee William Cleveland consulted with urologist Timothy Trulock,
M.D., about a lump on the underside of his penis. Trulock expressed concern
that Cleveland might have penile cancer and after Cleveland signed an informed
consent statement, Trulock performed surgery under general anesthesia to
remove the lump. Thereafter, Cleveland began to experience an acutely painful
ninety-degree curvature of his penis upon erection, and a resulting inability
to have intercourse. Cleveland sued Trulock and the Albany Urology Clinic
where he practiced (collectively "Trulock"), claiming that Trulock negligently
performed unnecessary surgery for non-existent penile cancer, and thereby
exacerbated Cleveland's medical condition. In his complaint, Cleveland alleged
that Trulock was liable for medical negligence; battery; breach of contract,
warranty, and guarantee of cure. Cleveland later amended his complaint to
add an assertion that Trulock had fraudulently concealed or misrepresented
his "illegal use and abuse of cocaine, substance abuse problem, and impairment"
at the time of Cleveland's treatment. *fn3
In addition, Cleveland's wife sued for loss of consortium. Cleveland's expert
testified that the lump on his penis was not caused by cancer but rather
by Peyronie's Disease, *fn4
which might have been confirmed with proper testing and treated effectively
without surgery. |
| [9] | Prior to trial, the court dismissed Cleveland's claim for battery after
finding the pleading defective under OCGA § 31-9-6.1 (a). The jury
returned a defendant's verdict on the malpractice claim, but returned plaintiffs'
verdicts on the claim for fraudulent concealment or misrepresentation of
Trulock's use of cocaine at the time of treatment. The trial court subsequently
granted Trulock's motion for judgment notwithstanding the verdict, holding
that because Trulock had no duty to disclose his cocaine use, Cleveland's
fraud claim failed as a matter of law. The trial court also concluded that
the evidence failed to establish the requisite intent for a claim of fraud. |
| [10] | The Court of Appeals reversed, and held that Trulock's failure to voluntarily
disclose his cocaine use at the time of Cleveland's treatment was equivalent
to an actual misrepresentation, and thus entitled Cleveland to file a fraud
claim that was separate and distinct from his claim for medical negligence,
notwithstanding the absence of evidence showing a proximate connection between
Trulock's drug use and Cleveland's injury. The Court of Appeals also reversed
the trial court's dismissal of Cleveland's claim for battery. |
| [11] | This Court granted certiorari to determine: |
| [12] | (1) Whether there exists a duty arising from all professional relationships
to disclose any factor or factors of the professional's life which might
adversely affect the professional's performance; (2) Whether the failure
to disclose such factors supports an action for fraud and battery; and if
so, (3) Whether recovery in a suit for fraud or battery under such circumstances
would require proof of damages arising from the professional's performance. |
| [13] | 1. Prior to 1988, Georgia physicians were not required to disclose to
their patients any of the risks associated with a particular medical treatment
or procedure. Hence, before 1988, a physician's "silence as to risk" was
not actionable and could not be the basis of a patient's claim of fraud.
*fn5 Although
a physician did then and does now have a common law duty to answer truthfully
a patient's questions regarding medical or procedural risks, absent such
inquiry the common law of this state does not designate the failure to disclose
such risks a fraud that may vitiate a patient's consent to medical procedures.
*fn6 As established
by pre-1988 precedent, under the common law, evidence of a failure to reveal
the risks associated with medical treatment is not even admissible in support
of a claim for professional negligence. *fn7 |
| [14] | As recognized by Georgia's appellate courts, this common-law rule could
be changed only by legislative act. *fn8
That occurred in 1988, when the General Assembly adopted the Informed Consent
Doctrine, OCGA § 31-9-6.1, which became effective on January 1, 1989.
Section 31-9-6.1 sets forth six specified categories of information that
must be disclosed by medical care providers to their patients before they
undergo certain specified surgical or diagnostic procedures. *fn9
The Georgia informed consent statute does not impose a general requirement
of disclosure upon physicians; rather, it requires physicians to disclose
only those factors listed in OCGA § 31-9-6.1 (a). *fn10
This statutory list of mandatory disclosures does not include a requirement
that physicians disclose to their patients any aspect of their personal
lives which might adversely affect their professional performance. |
| [15] | Because section 31-9-6.1 is in derogation of the common law rule against
requiring physicians to disclose medical risks to their patients, it must
be strictly construed and cannot be extended beyond its plain and explicit
terms. *fn11
Thus, in situations not covered by the statute's language, the common law
rule must still govern, as courts are without authority to impose disclosure
requirements upon physicians in addition to those requirements already set
forth by the General Assembly. *fn12 |
| [16] | It follows that, notwithstanding the repugnance of Trulock's conduct at
the time he rendered medical services to Cleveland, the Court of Appeals
erred in concluding that Trulock was under an affirmative obligation, either
under statute or common law, to disclose his drug use to his patients prior
to rendering services, and that Trulock's failure to make such disclosure
was the basis for an independent cause of action against him. In so doing,
the Court of Appeals impermissibly expanded upon the statutory disclosures
required of health care providers, and imposed upon health care providers
a new, judicially-created, duty of disclosure. As explained above, that
action was beyond the scope of the appellate court's authority, and it must
therefore be reversed. |
| [17] | 2. The Court of Appeals also erred in ruling that Trulock's non- disclosure
of his cocaine use at the time of Cleveland's treatment entitled the latter
to file a fraud claim seeking damages. Because, as explained above, Trulock
was not under a duty to make any disclosures regarding his personal life
factors, the failure to make such disclosure cannot logically support a
claim for fraudulent concealment or nondisclosure. The Court of Appeals,
however, upheld Cleveland's independent fraud claim based solely upon Trulock's
concealment of a negative factor in his life that, although he was not obligated
to disclose, nonetheless might have adversely affected his professional
performance in treating Cleveland. Notably, the Court of Appeals held that
such a claim was separate and distinct from Cleveland's claim of medical
negligence. Neither the Code nor the case law authorized treating this claim
independently from Cleveland's claim for malpractice. |
| [18] | A full and adequate remedy for Cleveland's injuries in this case is already
provided by existing law - - the right to sue Trulock for professional negligence.
Thus, Cleveland was not deprived of the legal means by which to recover
fully for his injuries, and it was not necessary for the Court of Appeals
to carve out a previously unrecognized cause of action for fraudulent concealment
by a professional of a life factor that might adversely affect their performance.
Certainly any evidence relevant to Cleveland's claim that Trulock rendered
deficient professional services, including evidence that Trulock used illegal
drugs at the time such services were rendered that might have impacted upon
his performance, is admissible in support of Cleveland's malpractice claim.
However, a professional's failure to disclose personal factors such as illicit
drug use does not constitute an independent and distinct fraud action that
is separate from a malpractice action. Even where certain disclosure requirements
are mandated under the Informed Consent Doctrine, the legislature has specified
that a medical provider's failure to make the requisite disclosures does
not constitute an independent cause of action, but rather may only give
rise to and support a claim of professional negligence. *fn13
It follows that the failure to make disclosures that are not required cannot
give rise to an independent cause of action, either. Therefore, the Court
of Appeals erred by judicially creating an independent cause of action permitting
Cleveland to allege that Trulock fraudulently withheld voluntary disclosure
of his drug use at the time he rendered professional services to Cleveland,
and in treating such claim independently from Cleveland's claim for malpractice.
*fn14 |
| [19] | 3. The Court of Appeals also erred in reviving Cleveland's battery claim
against Trulock. If a physician obtains consent for touching another in
the course of treatment by some artifice directly related to his or her
professional relationship with a patient, then the consent may not be valid
and the touching may have been unlawful, making the physician liable for
battery. Thus, where a physician knowingly misrepresents a patient's condition
or the proper treatment, *fn15
or fails to truthfully respond to a patient's queries about a diagnosis
or treatment, *fn16
or performs procedures outside the scope of consent, *fn17
a patient's consent may be vitiated, leaving the physician liable for having
committed a battery. |
| [20] | Thus, obtaining consent for medical treatment by an artifice that is directly
related to the subject matter of the professional relationship - - i.e.:
diagnoses, treatments, procedures - - may result in an unlawful touching
that supports a battery claim. However, we decline to extend this rule of
law to situations such as the present case, where (1) a physician fails
to disclose on their own initiative a negative personal life factor that,
although not directly related to the professional relationship, may, depending
upon a patient's subjectively held beliefs, impact upon the patient's consent
to be touched in the course of treatment, *fn18
and (2) there is no direct evidence of record that the physician was impaired
or affected by the negative personal life factor at the time consent was
obtained and treatment was rendered. |
| [21] | Cleveland urges, quite naturally, that he would not have consented to
treatment had he known of Trulock's cocaine use outside of work. We do not
question the sincerity or merit of this argument. However, there is no evidence
of record showing a causal nexus between Cleveland's consent to treatment
(and his resulting injury) and Trulock's drug use, and we cannot allow a
cause of action for battery to be based upon pure speculation that such
a nexus exists. In this case, the unknown factor which Cleveland claims
would have caused him to withhold his consent is too attenuated from the
subject matter of the professional relationship to support a battery claim.
Therefore, the Court of Appeals erred in reviving Cleveland's cause of action
for battery. |
| [22] | 4. We also note that there are compelling public policy reasons that militate
against creating an independent cause of action for fraud and battery based
upon a professional's failure to disclose life factors that might be detrimental
to the rendering of services to patients or clients. First among these is
the impossibility of defining which of a professional's life factors would
be subject to such a disclosure requirement. Indeed, in arguing before this
Court, Cleveland concedes that because every situation is different, and
because every patient or client has unique sensibilities, it would be impossible
to say what a professional is required to disclose in any given professional
relationship. This concession highlights the difficulty of ascertaining
standards that would guide both professionals and their clients if such
a new disclosure requirement existed, and underscores the fact that such
standards would, in large part, be based upon a plaintiff's subjective beliefs
and standards. *fn19 |
| [23] | Accordingly, we conclude that public policy concerns support our decision
to reverse the Court of Appeals' decision to permit the filing of independent
claims for fraud and battery based upon a medical professional's failure
to disclose a life factor which may be subjectively considered to impact
negatively upon the provision of services. |
| [24] | 5. To conclude, neither the common law nor the Code impose a duty upon
physicians or any other professional to disclose personal life factors which
might adversely affect their professional performance. Hence, the failure
to make such disclosure cannot be a basis for either a fraud or battery
claim. Furthermore, plaintiffs cannot file a claim asserting non-disclosure
of a life factor by a professional that is separate and distinct from a
claim for malpractice or professional negligence, but they may assert such
allegations in support of their malpractice or professional negligence claims.
Finally, public policy dictates against imposing such a duty of disclosure
upon professionals. For all of these reasons, we reverse the Court of Appeals'
opinion in this matter. |
| [25] | Judgment reversed. All the Justices concur, except Hunstein and Carley,
JJ, who concur in part and dissent in part . |
| [26] | CARLEY, Justice, concurring in part and dissenting in part. |
| [27] | I concur in the majority's holding that the judgment cannot rest upon
the theory that Dr. Trulock's non-disclosure of his cocaine use is actionable
as an independent tort of fraud. I do not, however, agree with the majority's
conclusion that a recovery cannot be based upon the alternative theory that
Dr. Trulock committed a battery against Mr. Cleveland. |
| [28] | Medical negligence is not the only possible tort which can arise from
the doctor-patient relationship. To avoid civil liability for a battery,
a physician has the duty to obtain his patient's consent to undergo treatment.
OCGA §§ 51-1-13, 51-11-1. "The relation of physician and patient
is a consensual one, and a physician who undertakes to treat another without
express or implied consent of the patient is guilty of at least a technical
battery." Mims v. Boland, 110 Ga. App. 477 (2) (138 SE2d 902) (1964). Insofar
as Dr. Trulock's civil liability for commission of a battery is concerned,
it is immaterial whether he conformed to the applicable standard of care,
since performance of an unauthorized medical procedure is actionable regardless
of the skill with which it was accomplished. See Irwin v. Arrendale, 117
Ga. App. 1, 5 (4) (159 SE2d 719) (1967). Likewise, the question of damages
is not a bar to Mr. Cleveland's recovery under a battery theory, since nominal
damages are authorized even if the injury is small or the mitigating factors
are strong. OCGA § 51-12-4; Southern Finance Co. v. Alexander, 113
Ga. App. 740, 741 (2) (149 SE2d 526) (1966). "As a general rule, no tort
is committed against a person who consents to medical treatment unless that
consent is not freely obtained or is obtained by fraud. [Cit.] A valid general
consent negates any actionable claim for battery. [Cits.]" (Emphasis supplied.)
Lloyd v. Kramer, 233 Ga. App. 372, 375 (1) (503 SE2d 632) (1998). The dispositive
issue in this case is whether Dr. Trulock's failure to disclose his use
of and addiction to cocaine was a fraudulent misrepresentation of a material
fact which invalidated Mr. Cleveland's consent to undergo the recommended
surgical procedure. In this connection, the record shows that Dr. Trulock
specifically admitted that he intended for his patients not to know that
he used cocaine. |
| [29] | A physician and patient share a confidential relationship. Keenan v. Plouffe,
267 Ga. 791, 794 (2) (482 SE2d 253) (1997). Where such a relationship exists,
silence when one should speak or the failure to disclose what one ought
to reveal is equivalent to an actual affirmative false representation. Morris
v. Johnstone, 172 Ga. 598, 605 (158 SE2d 308) (1931). OCGA § 31-9-6.1
(a) enumerates certain general risks that are inherent in medical procedures,
which risks the physician must disclose so as to obtain the patient's valid
consent. Because the doctor's use of an illegal drug is not included in
the statutory list, the majority concludes that there is no requirement
for disclosure absent a specific inquiry by the patient. Were Dr. Trulock's
use of illegal drugs a general and inherent risk of the medical procedure
which he recommended, I could agree that its absence from the list in OCGA
§ 31-9-6.1 (a) is dispositive of Mr. Cleveland's battery claim. However,
the General Assembly's mandated disclosure of the general and inherent risks
of a medical procedure does not indicate a legislative intent to insulate
a physician from liability for the fraudulent concealment of any and all
other forms of risks to the patient. In my opinion, the concept of valid
consent to undergo a medical procedure encompasses more than the procedure
itself, and includes the qualifications or lack thereof of the one who is
proposing himself as the professional who will perform that procedure. See
Sutlive v. Hackney, 164 Ga. App. 740, 742 (297 SE2d 515) (1982), overruled
on other grounds, Hunter, Maclean, Exley & Dunn, P.C. v. Franc, 269 Ga.
844, 849 (1) (507 SE2d 411) (1998). "`Consent' is `a voluntary yielding
of the will,' or `a rational and voluntary concurrence in an act.' [Cit.]
.... Consent is an act of reason accompanied with deliberation. [Cit.]"
Shehany v. Lowry, 170 Ga. 70, 72 (152 SE 114) (1930). Dr. Trulock obtained
Mr. Cleveland's consent to undergo the recommended medical procedure and
to perform that procedure himself. Certainly, the qualifications of the
particular physician, no less than the general and inherent risks of the
suggested medical procedure, are of concern to the patient whose authorization
is being sought. With regard to the risks of the procedure itself, Dr. Trulock
complied with OCGA § 31-9-6.1 (a) and made the requisite disclosures.
However, the controlling issue is whether Dr. Trulock's illegal drug use
was material to Mr. Cleveland's consent to undergo the recommended procedure,
and the mere fact that that factor is not otherwise enumerated in the irrelevant
provisions of OCGA § 31-9-6.1 (a) should have no bearing on the determination
of this issue. |
| [30] | Except in plain and palpable cases, the issue of materiality must be submitted
to the jury. Norris v. Hart, 74 Ga. App. 444, 446 (40 SE2d 96) (1946). Under
the evidence, Dr. Trulock's failure to disclose his cocaine use is not clearly
and palpably immaterial to Mr. Cleveland's consent to undergo the medical
procedure. Indeed, the majority concedes the materiality of the non-disclosure
by acknowledging that it cannot question the sincerity or merit of Mr. Cleveland's
assertion that he would not have consented to treatment by Dr. Trulock had
the cocaine use been disclosed. If the jury was authorized to believe Mr.
Cleveland's contention that the undisclosed cocaine use was material to
his decision to accept Dr. Trulock's recommendation, then neither the trial
court nor this Court is authorized to conclude that, to the contrary, Mr.
Cleveland's consent nevertheless was valid as a matter of law. Norris v.
Hart, supra. |
| [31] | Seeking to justify its decision on public policy grounds, the majority
opines that it is impossible to define those life factors which should be
subject to disclosure by a professional. This public policy argument is
completely irrelevant, however, since we deal here only with the medical
profession and the specific requirement that, in order to avoid liability
for the intentional tort of battery, the physician must obtain the patient's
consent. Indeed, in the context of this case, we do not even need to draw
a bright line rule establishing exactly what a physician who is charged
with a battery must disclose in order to demonstrate that the patient gave
a valid consent to the touching. It is undisputed that, at the time of the
procedure, Dr. Trulock was addicted to and used cocaine and that the use
of that drug is always illegal. OCGA §§ 16-13-26 (1) (D), 16-13-30
(a). Both the commission of a crime of moral turpitude and the use of illegal
drugs are factors which can result in the loss of a physician's license
to practice medicine in this state. OCGA § 43-34-37 (4), (13). Thus,
resolution of this case does not depend on whether Dr. Trulock measures
up to Mr. Cleveland's subjective beliefs and standards. Dr. Trulock has
violated the beliefs and standards of society in general and his profession
in specific. Regardless of where the line ultimately is drawn with regard
to a doctor's duty to disclose in order to avoid civil liability for an
unauthorized touching, Dr. Trulock crossed that line when he obtained Mr.
Cleveland's consent without disclosing a factor which could result in the
doctor's criminal prosecution and put his professional license in jeopardy. |
| [32] | In my opinion, this appeal is controlled by the principle that consent
which is obtained by a material misrepresentation is invalid, since fraud
vitiates all contracts. See generally Dye v. Wall, 6 Ga. 584, 586 (1) (1849).
The majority creates an exception to that rule when the contract at issue
involves a physician who offers to perform a recommended procedure and a
patient who agrees to accept that recommendation. In accordance with today's
opinion, such an agreement is valid, as a matter of law, despite the physician's
intentional suppression of the fact of his ongoing addiction to and use
of cocaine, which fact was clearly material to the validity of the patient's
consent. Because I believe that a jury would be authorized to find that
Dr. Trulock's non-disclosure of his addiction to and use of cocaine vitiated
Mr. Cleveland's consent to undergo the medical procedure, I dissent to the
determination that the judgment cannot rest on a battery theory. |
| [33] | I am authorized to state that Justice Hunstein joins in this opinion. |
|
|
|
| Opinion Footnotes | |
|
|
|
| [34] | *fn1 Cleveland,
et al. v. Albany Urology Clinic, et al., 235 Ga. App. 838 (509 SE2d 664)
(1998). |
| [35] | *fn2 Id., 235
Ga. at 840. |
| [36] | *fn3 There
is no direct evidence of record that Trulock was under the immediate or
residual influence of cocaine at the time he made decisions regarding Cleveland's
treatment and performed surgery. However, it also appears from the record
that some time after Cleveland's procedure, Trulock was admitted to a rehabilitation
facility for drug treatment, and that this fact became known during discovery
in the underlying action. |
| [37] | *fn4 Peyronie's
Disease is a condition where collagen deposits become calcified in the tunica
of the penis secondary to an inflamation process. It is generally a benign
condition that may respond to simple vitamin therapy. |
| [38] | *fn5 See Young
v. Yarn, 136 Ga. App. 737, 738 (222 SE2d 113) (1975); see also Spikes v.
Heath, 175 Ga. App. 187, 188 (332 SE2d 889) (1985) (a physician is under
no duty to disclose the risks of treatment, and the failure to do so is
not actionable); Padgett v. Ferrier, 172 Ga. App. 335, 335-36 (323 SE2d
166) (1984) (doctrine of informed consent not applicable in Georgia and
the failure to reveal risks of treatment cannot give rise to fraud claim). |
| [39] | *fn6 See Padgett,
supra; Spikes, supra. |
| [40] | *fn7 Padgett,
172 Ga. App. at 335; Hyles v. Cockrill, 169 Ga. App. 132, 133 (312 SE2d
124) (1983). |
| [41] | *fn8 Spikes,
175 Ga. App. at 188 n. 2; Simpson v. Dickson, 167 Ga. App. 344, 347-48 (306
SE2d 404) (1983). |
| [42] | *fn9 These
are: (1) the patient's diagnosis necessitating the procedure; (2) the nature
and purpose of the procedure; (3) the generally recognized and accepted
material risks of infection, allergic reaction, disfigurement, brain or
heart damage, etc. associated with the procedure; (4) the likelihood of
the procedure's success; (5) the practical, accepted and recognized alternatives
to the procedure; and (6) the patient's prognosis if the procedure is rejected.
OCGA § 31-9-6.1 (a) (1)-(6). |
| [43] | *fn10 See
Butler v. South Fulton Med. Ctr., 215 Ga. App. 809 (452 SE2d 768) (1994);
Moore v. Baker, 989 F.2d 1129 (11th Cir. 1993). |
| [44] | *fn11 Bo
Fancy Prods., Inc. v. Rabun County Bd. of Cm'rs, 267 Ga. 341, 343 (478 SE2d
373) (1996); Fayette County v. Seagraves, 245 Ga. 196, 197-98 (264 SE2d
13) (1980). |
| [45] | *fn12 Simpson,
167 Ga. App. at 348. |
| [46] | *fn13 OCGA
§ 31-9-6.1 (d). |
| [47] | *fn14 It
also bears noting that in creating this new cause of action, the Court of
Appeals disregarded the requirement that before damages are recoverable,
it must be established that the wrongful conduct complained of proximately
caused loss and damage to the plaintiff. Bacote v. Wyckoff, 251 Ga. 862,
865 (310 SE2d 520) (1984); see Reynolds v. Flint River Tech. Inst., 223
Ga. App. 240 (477 SE2d 393) (1996). In this case, the record appears not
to include evidence that Trulock was under either the direct or residual
influence of cocaine at the time he treated Cleveland. While unnecessary
to our decision in this case, that failure of proximate causal connection
might also be fatal to the Court of Appeals' ruling. In this same regard,
the successful pursuit of a fraud claim, even one within the professional
context, requires a showing of an intention to deceive, see Hunter&c. v.
Frame, 269 Ga. 844, 849 (507 SE2d 411) (1998), and the record in this case
appears to be void of such evidence. |
| [48] | *fn15 See
e.g., Boggs v. Bosley Medical Inst., 228 Ga. App. 598 (492 SE2d 264) (1997);
Smith v. Wilfong, 218 Ga. App. 503 (462 SE2d 163) (1995). |
| [49] | *fn16 See
e.g., Spikes, supra. |
| [50] | *fn17 See
e.g., Joiner v. Lee, 197 Ga. App. 754 (399 SE2d 516) (1990). |
| [51] | *fn18 See
also, Division Four, infra. |
| [52] | *fn19 These
concerns are perhaps best described by hypothetical scenarios: Consider
an attorney who, on most nights, drinks between four and five glasses of
wine between the time he arrives home from work and the time he retires
for the evening. He is never intoxicated or hung over at work, and he never
misses or is late for a work-related event. No one has ever suggested to
him, and he does not suspect, that his wine drinking affects his professional
performance. However, his doctor informs him that he may be a "binge drinker,"
and may have a drinking problem. See National Institute on Alcohol and Alcoholism
Alcohol Alert No. 37 (U.S. Dept. of Health & Human Services Publications,
July 1997) (having five or more drinks in a row may be indicative of `binge
drinking'). Having been so informed, does the attorney have an affirmative
duty to disclose this life factor - - a diagnosed drinking problem which
conceivably could affect his professional performance - - to every current
and prospective client? If so, does his failure to make such disclosure
create a cause of action against him regardless of whether his work is competently
performed? What if the lawyer is aware that his client is opposed to the
drinking of alcohol on moral or religious grounds, does that create a heightened
duty of disclosure on the lawyer's part with regard to that particular client?
Or consider the internist who, the night before receiving patients, is served
with divorce papers or learns of an elderly parent's illness. Both of these
incidents are naturally upsetting and might be considered by some to potentially
impact the internist's ability to render professional services. However,
the internist believes that, despite the receipt of bad news, she can treat
her patients competently. Is she nonetheless obligated to inform patients
of the prior evening's events, regardless of whether she actually violates
the applicable standard of care in treating them? What if the internist
had a mastectomy the month before and is currently undergoing preventative
chemotherapy that weakens her physically, does she have an obligation to
disclose that life factor to all of her patients, since it might be deemed
to affect her professional performance? These hypothetical scenarios and
the questions they raise (which we do not attempt to answer here) exemplify
the uncertainty that would ensue if the Court of Appeals' opinion in this
matter were allowed to stand. No ascertainable standards exist by which
these professionals may gauge whether their failure to voluntarily disclose
certain life factors to their patients or clients might leave them liable
for damages. Moreover, whether a duty of disclosure even exists in any given
scenario turns in large part upon (1) the particular profession engaged
in, (2) the services being rendered, and (3) the subjective beliefs of the
professional's patient or client. Not only do these variables raise constitutional
vagueness concerns, see State v. Johnson, 270 Ga. 111, 112 (507 SE2d 443)
(1998) (law cannot impose unconstitutionally vague duties, rather it must
"furnish a test based on normal criteria which men of common intelligence
. . . may use with reasonable safety in determining its command."), they
also highlight how the duty of disclosure required by the Court of Appeals'
opinion would raise an impracticable, if not impossible, impediment to the
efficient rendering of professional services. |
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