G.R. No. 165279 DR. RUBI LI v. SPOUSES REYNALDO SOLIMAN and LINA SOLIMAN

Promulgated: June 7, 2011

x- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

DISSENTING OPINION

CARPIO, J.:

Dr. Rubi Li (Dr. Li), as oncologist, should have obtained the informed consent of Reynaldo Soliman (Reynaldo) and Lina Soliman (Lina) before administering chemotherapy to their 11-year old daughter Angelica Soliman (Angelica). Unfortunately, Dr. Li failed to do so. For her failure to obtain the informed consent of Reynaldo and Lina, Dr. Li is liable for damages.

The doctrine of informed consent requires doctors, before administering treatment to their patients, to disclose adequately the material risks and side effects of the proposed treatment. The duty to obtain the patients informed consent is distinct from the doctors duty to skillfully diagnose and treat the patient. In Wilkinson v. Vesey,¹ the Supreme Court of Rhode Island held that:

One-half century ago, Justice Cardozo, in the oft-cited case of Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914), made the following observation:

Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patients consent, commits an assault, for which he is liable in damages. This is true except in cases of emergency where the patient is unconscious and where it is necessary to operate before consent can be obtained. Id. at 129-130, 105 N.E. at 93.

x x x x

Shortly after the Schloendorff case, there began to appear on the judicial scene a doctrine wherein courts with increasing frequency began to rule that a patients consent to a proposed course of treatment was valid only to the extent he had been informed by the physician as to what was to be done, the risk involved and the alternatives to the contemplated treatment. This theory, which today is known as the doctrine of informed consent, imposes a duty upon a doctor which is completely separate and distinct from his responsibility to skillfully diagnose and treat the patients ills. (Emphasis supplied)

Four requisites must be proven in cases involving the doctrine of informed consent. The plaintiff must show that (1) the doctor had a duty to disclose the associated risks and side effects of a proposed treatment; (2) the doctor failed to disclose or inadequately disclosed the associated risks and side effects of the proposed treatment; (3) the plaintiff consented to the proposed treatment because of the doctors failure to disclose or because of the inadequate disclosure of the associated risks and side effects of the proposed treatment; and (4) the plaintiff was injured as a result of the treatment. In Coryell v. Smith,² the Court of Appeals of Illinois held that:

To succeed in a malpractice action based on the doctrine of informed consent the plaintiff must plead and ultimately prove four essential elements: (1) the physician had a duty to disclose material risks; (2) he failed to disclose or inadequately disclosed those risks; (3) as direct and proximate result of the failure to disclose, the patient consented to treatment she otherwise would not have consented to; and (4) plaintiff was injured by proposed treatment.

There are two standards by which courts determine what constitutes adequate disclosure of associated risks and side effects of a proposed treatment: the physician standard, and the patient standard of materiality. Under the physician standard, a doctor is obligated to disclose that information which a reasonable doctor in the same field of expertise would have disclosed to his or her patient. In Shabinaw v. Brown,³ the Supreme Court of Idaho held that:

A valid consent must be preceded by the physician disclosing those pertinent facts to the patient so that he or she is sufficiently aware of the need for, and the significant risks ordinarily involved in the treatment to be provided in order that the giving or withholding of consent be a reasonably informed decision. The requisite pertinent facts to be disclosed to the patient are those which would be given by a like physician of good standing in the same community. (Emphasis supplied)

Under the patient standard of materiality, a doctor is obligated to disclose that information which a reasonable patient would deem material in deciding whether to proceed with a proposed treatment. In Johnson by Adler v. Kokemoor,⁴ the Supreme Court of Wisconsin held that:

x x x The concept of informed consent is based on the tenet that in order to make a rational and informed decision about undertaking a particular treatment or undergoing a particular surgical procedure, a patient has the right to know about significant potential risks involved in the proposed treatment or surgery. In order to insure that a patient can give an informed consent, a physician or surgeon is under the duty to provide the patient with such information as may be necessary under the circumstances then existing to assess the significant potential risks which the patient confronts.

The information that must be disclosed is that information which would be material to a patients decision. (Emphasis supplied)

Historically, courts used the physician standard. However, the modern and prevailing trend among courts is to use the patient standard of materiality. In ,⁵ the Court of Appeals of District of Columbia held that:

x x x Some have measured the disclosure by good medical practice, others by what a reasonable practitioner would have bared under the circumstances, and still others by what medical custom in the community would demand. We have explored this rather considerable body of law but are unprepared to follow it. The duty to disclose, we have reasoned, 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 professional standard is at odds with the patients prerogative to decide on projected therapy himself. That prerogative, we have said, is at the very foundation of the duty to disclose, and both the patients right to know and the physicians correlative obligation to tell him are diluted to the extent that its compass is dictated by the medical profession.

In our view, the patients right to self-decision shapes the boundaries of the duty to reveal. That right can be effectively exercised only if the patient possesses enough information to enable an intelligent choice. The scope of the physicians communications to the patient, then, must be measured by the patients need, and that need is the information material to the decision. Thus the test for determining whether a particular peril must be divulged is its materiality to the patients decision: all risks potentially affecting the decision must be unmasked. (Emphasis supplied)

In Johnson by Adler, the Court held that:

What constitutes informed consent in a given case emanates from what a reasonable person in the patients position would want to know. This standard regarding what a physician must disclose is described as the prudent patient standard; it has been embraced by a growing number of jurisdictions since the Canterbury decision.

The Scaria [v. St. Paul Fire & Marine Insurance Co.] court emphasized that those disclosures which would be made by doctors of good standing, under the same or similar circumstances, are certainly relevant and material in assessing what constitutes adequate disclosure, adding that physician disclosures conforming to such a standard would be adequate to fulfill the doctors duty of disclosure in most instances. But the evidentiary value of what physicians of good standing consider adequate disclosure is not dispositive, for ultimately the extent of the physicians disclosures is driven by what a reasonable person under the circumstances then existing would want to know. (Emphasis supplied)

In order to determine what the associated risks and side effects of a proposed treatment are, testimony by an expert witness is necessary because these are beyond the common knowledge of ordinary people. In Canterbury, the Court held that, There are obviously important roles for medical testimony in [nondisclosure] cases, and some roles which only medical evidence can fill. Experts are ordinarily indispensable to identify and elucidate for the fact-finder the risks of therapy. The Court also held that, medical facts are for medical experts.

On the other hand, in order to determine what risks and side effects of a proposed treatment are material and, thus, should be disclosed to the patient, testimony by an expert witness is unnecessary. In Canterbury, the Court held that:

x x x It is evident that many of the issues typically involved in nondisclosure cases do not reside peculiarly within the medical domain. Lay witness testimony can competently establish a physicians failure to disclose particular risk information, the patients lack of knowledge of the risk, and the adverse consequences following the treatment. Experts are unnecessary to a showing of the materiality of a risk to a patients decision on treatment, or to the reasonably, expectable effect of risk disclosure on the decision. (Emphasis supplied)

In Betterton v. Leichtling,⁶ the Court of Appeals of California held that, Whether to disclose a significant risk is not a matter reserved for expert opinion.

Again, under the patient standard of materiality, a doctor is obligated to disclose that information which a reasonable patient would deem material in deciding whether to proceed with a proposed treatment. Stated differently, what should be disclosed depends on what a reasonable person, in the same or similar situation as the patient, would deem material in deciding whether to proceed with the proposed treatment.

The testimony of an expert witness is necessary to determine the associated risks and side effects of the treatment. This is the only purpose. In the present case, an expert witness identified the associated risks and side effects of chemotherapy Dr. Li is an expert in oncology. In its 5 September 1997 Decision, the Regional Trial Court (RTC), Judicial Region 5, Branch 8, Legazpi City, stated that:

Dr. Rubi Li is a Doctor of Medicine and a Medical Oncologist. She obtained her degree in Medicine in 1981 at the University of the East. She went on Junior Internship for one year in Rizal Medical Center wherein she was exposed to different diseases and specifications. After the post-graduate internship she underwent six (6) months rural service internship and then took and passed the board examination. She likewise underwent a 3-year residency training in internal medicine wherein she was exposed to different patients, particularly patients with bone diseases and cancer patients, including their treatment. After the residency training in internal medicine, one becomes an internist. She likewise underwent sub-specialty training in medical oncology wherein she dealt with cancer patients, including bone and breast cancers, and learned how to deal with the patient as a whole and the treatment. Before she was admitted to the Society of Medical Oncologists, she first took the test for and registered with the Philippine College of Physicians. She was likewise invited to join the Society of Clinical Oncologists. She has written and has been co-authoring papers on cancer and now she is into the training program of younger doctors and help them with their papers.

Every year Dr. Li goes to conventions, usually in May, known as the American Society of Clinical Oncologist Convention, wherein all the sub-specialties in cancer treatment and management meet and the latest in cancer treatment and management is [sic] presented. In December of each year the Philippine Society of Medical Oncologists have their convention wherein the latest with regards [sic] to what is going on in the Philippines is presented. They also have an upgrading or what they call continuous medical education with [sic] cancer, which is usually every now and then, especially when there are foreign guests from abroad.

Dr. Li has been dealing with bone cancer treatment for almost thirteen (13) years now and has seen more than 5,000 patients.

As an expert, Dr. Li identified the associated risks and side effects of chemotherapy: (1) falling hair; (2) nausea; (3) vomiting; (4) loss of appetite; (5) lowering of white blood cell count; (6) lowering of red blood cell count; (7) lowering of platelet count; (8) sterility; (9) damage to the kidneys; (10) damage to the heart; (11) skin darkening; (12) rashes; (13) difficulty in breathing; (14) fever; (15) excretion of blood in the mouth; (16) excretion of blood in the anus; (17) development of ulcers in the mouth; (18) sloughing off of skin; (19) systemic lupus erythematosus; (20) carpo-pedal spasm; (21) loose bowel movement; (22) infection; (23) gum bleeding; (24) hypovolemic shock; (25) sepsis; and (26) death in 13 days.

Dr. Li admitted that she assured Reynaldo and Lina that there was an 80% chance that Angelicas cancer would be controlled and that she disclosed to them only some of the associated risks and side effects of chemotherapy. In its 5 September 1997 Decision, the RTC stated that:

By way of affirmative and special defenses, Dr. Rubi Li alleged that she saw the deceased patient, Angelica Soliman, and her parents on July 25, 1993, and discussed the patients condition and the possibility of adjuvant chemotherapy x x x. The giving of chemotherapy is merely in aid, or an adjuvant, of surgery, hoping to prevent or control the recurrence of the malignant disease (cancer). The plaintiffs were likewise told that there is 80% chance that the cancer could be controlled and that no assurance of cure was given, considering that the deceased was suffering from cancer which up to this moment, cure is not yet discovered and not even the exact cause of cancer is known up to the present.

Plaintiffs were likewise informed that chemotherapy will be given through dextrose and will, therefore, affect not only the cancer cells, but also the patients normal parts of the body, more particularly the fast growing parts, and as a result, the patient was expected to experience, as she has in fact experienced, side effects consisting of: 1) Falling hair; 2) Nausea and vomiting; 3) Loss of appetite considering that there will be changes in the taste buds of the tongue and lead to body weakening; 4) Low count of white blood cells (WBC count), red blood cells (RBC count), and platelets as these would be lowered by the chemotherapy; 5) The deceased patients ovaries may be affected resulting to sterility; 6) The kidneys and the heart might be affected; and 7) There will be darkening of the skin especially when the skin is exposed to sunlight.

Thus, Dr. Li impliedly admits that she failed to disclose to Reynaldo and Lina many of the other associated risks and side effects of chemotherapy, including the most material infection, sepsis and death. She impliedly admits that she failed to disclose as risks and side effects (1) rashes; (2) difficulty in breathing; (3) fever; (4) excretion of blood in the mouth; (5) excretion of blood in the anus; (6) development of ulcers in the mouth; (7) sloughing off of skin; (8) systemic lupus erythematosus; (9) carpo-pedal spasm; (10) loose bowel movement; (11) infection; (12) gum bleeding; (13) hypovolemic shock; (14) sepsis; and (15) death in 13 days.

Clearly, infection, sepsis and death are material risks and side effects of chemotherapy. To any reasonable person, the risk of death is one of the most important, if not the most important, consideration in deciding whether to undergo a proposed treatment. Thus, Dr. Li should have disclosed to Reynaldo and Lina that there was a chance that their 11-year old daughter could die as a result of chemotherapy as, in fact, she did after only 13 days of treatment.

In Canterbury and in Wilkinson, the Court of Appeals of District of Columbia and Supreme Court of Rhode Island, respectively, held that, A very small chance of death x x x may well be significant. In the present case, had Reynaldo and Lina fully known the severity of the risks and side effects of chemotherapy, they may have opted not to go through with the treatment of their daughter. In fact, after some of the side effects of chemotherapy manifested, they asked Dr. Li to stop the treatment.

The facts, as stated by the RTC and the Court of Appeals, clearly show that, because of the chemotherapy, Angelica suffered lowering of white blood cell count, lowering of red blood cell count, lowering of platelet count, skin darkening, rashes, difficulty in breathing, fever, excretion of blood in the mouth, excretion of blood in the anus, development of ulcers in the mouth, sloughing off of skin, systemic lupus erythematosus, carpo-pedal spasm, loose bowel movement, infection, gum bleeding, hypovolemic shock, sepsis, and death after 13 days.

After the administration of chemotherapy, Angelica suffered infection, which progressed to sepsis. Thereafter, Angelica died. In its 5 September 1997 Decision, the RTC stated that:

Angelica Soliman was admitted at the St. Lukes Medical Center on August 18, 1993. Preparatory to the chemotherapy, she was hydrated to make sure that her kidneys will function well and her output was monitored. Blood test, blood count, kidney function test and complete liver function test were likewise done. Chemotherapy started on August 19, 1993 with the administration of the three drugs, namely, Cisplatine, Doxorubicin and Cosmegen. In the evening Angelica started vomiting which, according to Dr. Rubi Li, was just an effect of the drugs administered.

Chemotherapy was likewise administered on August 20, 1993. Vomiting continued. On August 21, 1993 Angelica Soliman developed redness or rashes all over her face, particularly on the nose and cheek area, which on subsequent day became darker and has spread to the neck and chest. Dr. Li told plaintiffs that was just a reaction or effect of the medicines and it was normal. Vomiting likewise continued. Dr. Li then consulted Dr. Abesamis, a pediatric oncologist, because she was entertaining the possibility that the patient might also have systemic lupus erythematosus.

Angelica Soliman developed fever and difficulty of breathing on the fourth day and she became weak already. She was placed on oxygen and antibiotics. Her blood count was checked. Dr. Li began to entertain the possibility of infection, the lungs being considered the focus of such infection. An auscultation of the lungs showed just harsh breathing sounds. She was given Bactrim. The following day the antibiotic was changed into something stronger by giving the patient Fortum intravenously. Dr. Li started to consider the possibility of beginning sepsis, meaning that the germs or bacteria were already in the blood system. Fortum did not, however, take effect. White cells were down and it was not enough to control the infection because there was nothing in her body to fight and help Fortum fight the infection. Another medicine, Leucomax, was added that would increase the patients white cell count, but even this did not help.

Plaintiffs then requested Dr. Li to stop the chemotherapy. Dr. Li complied, although according to her the chemotherapy should not be stopped. So chemotherapy was not given on August 22, 1993. Plaintiffs then asked if they could already bring their daughter home. They were permitted by Dr. Li.

On August 23, 1993, preparatory to the discharge, Dr. Li prescribed take home medicines, but while still in the premises of SLMC, Angelica Soliman had a convulsive attack so she was placed back to her room.

This convulsive attack mentioned by the plaintiffs was actually what is referred to as carpopedal spasm in medical parlance, which Dr. Li described as naninigas ang kamay at paa. It is a twitching of a group of muscles of the hands and legs. The patients calcium was checked and it was noted to be low, so she was given supplemental calcium which calmed her down. ECG was likewise conducted. Angelica Soliman started to bleed through the mouth. This, according to Dr. Li, was only a spitting of blood because at that time the patient had gum bleeding. Dr. Li told plaintiffs the bleeding was due to platelet reduction. Angelica Soliman was then transferred to a private room wherein the plaintiffs themselves were required to wear a mask to avoid any infection as their daughter was already sensitive and they might have colds or flu and might contaminate the patient who was noted to have low defense mechanism to infection. Plaintiffs were asked to sign a consent form for blood transfusion. Patient was transfused with more than three (3) bags of blood and platelets. The bleeding was lessened, but she became weak.

The bleeding and blood transfusion continued until August 31, 1993. Angelica Soliman became hysterical and uneasy with the oxygen and nasogastric tube attached to her. Parts of her skin were shredding or peeling off, and according to plaintiffs, she already passed black stool.

On September 1, 1993, at around 3:00 p.m., Angelica Soliman died, but prior to her demise, she pulled out her endotracheal tube at 9:30 p.m. of August 31, 1993.

As admitted by Dr. Li, infection, sepsis and death are associated risks and side effects of chemotherapy. These risks and side effects are material to Reynaldo and Lina, and to any other reasonable person, in deciding whether to undergo chemotherapy. Had Dr. Li adequately disclosed to Reynaldo and Lina that there was a chance that their 11-year old daughter could die of infection as a result of chemotherapy, they may have decided against it and sought for an alternative treatment.

Accordingly, I vote to DENY the petition.

ANTONIO T. CARPIO

Associate Justice

1 110 R.I. 606, 295 A. 2d 676, 69 A.L.R. 3d 1202.

2 274 Ill. App. 3d 543, 653 N.E. 2d 1317.

3 125 Idaho 705, 874 P. 2d 516.

4 199 Wis. 2d 615, 545 N.W. 2d 495.

5 464 F. 2d 772, 150 U.S. App. D.C. 263.

6 101 Cal. App. 4^Th 749.