Consent Form Said "Epidural Steroid
	Injection," But Doctor Delivered
	"Neurolytic Block" Making Patient Quadriplegic
	Patient Signed Consent Forms Without
	Ever Reading Them, And Doctor Never Explained
	Improper Consent Form, However,
	Not the Proximate Cause of Injuries

Facts: In 1988, Charlotte Butler sought treatment for relief of chronic pain she had begun to experience in her left chest and ribcage area after undergoing surgery, radiation and chemotherapy treatments for breast cancer during 1986. She was referred by her oncologist to Dr. Jong-In Kim, an anesthesiologist and a member of South Fulton Anesthesia Associates, who worked as an independent contractor at South Fulton Medical Center. Dr. Kim administered epidural steroid injections to the patient on January 20, 1988 and February 17, 1989. In September 1989, when the steroid injections failed to give long-term relief, Dr. Kim gave patient a thoracic sympathetic block or neurolytic block, which, unlike the two previous steroid injections was an injection of the nerve-destroying agent phenol. In January 1990, Kim performed a second neurolytic block on Butler, following this procedure almost immediately, in February 1990, with a third neurolytic block.

In August 1990, Butler called Dr. Kim requesting additional treatment for her pain. Although the consent form filled out by the hospital nursing staff and signed by Butler identified this last procedure as an "epidural steroid injection," Dr. Kim actually administered a fourth neurolytic block using the agent phenol. The injection was administered too close to Butler's spinal cord. The phenol penetrated into the spinal cord where it did massive damage which rendered Butler a ventilator-supported C-1 quadriplegic.

Butler settled her claim against Dr. Kim, and subsequently filed this action against South Fulton alleging the hospital was negligent in two ways: (1) the hospital's nursing staff did not fulfill their duties and obligations with regard to the obtaining of consent forms from Butler; and (2) the hospital failed to adequately supervise Dr. Kim in that it allowed him to perform sympathetic neurolytic blocks without the requisite credentials. The trial court granted South Fulton's motion for summary judgment as to Butler's claim that it negligently hired and supervised Dr. Kim. The court denied the parties' cross-motions for summary judgment on Butler's contentions that South Fulton was negligent in failing to obtain a consent form for the neurolytic block procedure performed and in obtaining a consent form for the wrong procedure.

Court Decision: First, the Court of Appeals of Georgia ruled that the hospital was not liable for injuries suffered by Butler on the theory of negligent hiring and/or supervision of its physician. Generally, a hospital owes a duty to patients to act in good faith and with reasonable care to ensure that a doctor is qualified to practice the procedure he was granted privileges to perform. In this case, there is absolutely no evidence that the hospital should have required Dr. Kim, an anesthesiologist, to obtain specific privileges to perform neurolytic blocks.

Once it has been established that the hospital had a procedure in place, approved by the Joint Commission for the Accreditation of Hospitals, for evaluating the credentials of staff physicians and that the hospital did not undertake to direct the doctor in the way or manner in which he treated the patient, the hospital cannot be held liable for the acts of the doctor.

Defective Consent

Secondly, Butler asserts the trial court erred in denying her motion for summary judgment as to her negligence claim against South Fulton for failing to obtain a valid consent form. The court rejected this claim as well. In her deposition Butler testified that she never read any of these consent forms before she signed them. It is also clear from her deposition testimony that Dr. Kim never told her anything specific about any of the procedures he performed in his effort to relieve her chronic pain. For example, the only thing he told her when he changed the course of treatment from steroid injection to phenol block was that he was going to change the medicine he was injecting to give her longer relief. Butler candidly acknowledged that she did not know the difference in the various procedures Dr. Kim performed on her, and that she was relying upon him to select the procedure that was right for her.

In obtaining a consent form, a nurse is not acting as a "borrowed servant" of the doctor, but as an employee of the hospital because the task of obtaining a properly executed form is administrative and does not involve professional medical skill or judgment. Even were we to decide, as a matter of law, that South Fulton's rules created a duty to Butler, the failure of the nurses to comply with a rule of the hospital does not give rise to negligence per se. Butler candidly acknowledges that she signed each and every one of the consent forms, those which correctly described the procedure as well as those which incorrectly or incompletely described the procedure, without reading even one. She also acknowledges that she did not know and did not ask the difference between an epidural steroid injection and a neurolytic block, and that, to her, they were all simply nerve blocks designed to relieve her pain. Therefore, we conclude the trial court properly denied Butler's motion for summary judgment with regard to this issue.

Proximate Cause 

In its order denying summary judgment, the trial court found a "jury issue exists regarding proximate cause because Butler testified, among other things, that she never would have consented to this neurolytic block procedure."

Our review of Butler's deposition, however, reveals that she stated she did not read any of the consent forms which she signed. She testified she did not appreciate the difference between a thoracic phenol block and epidural block and that if the consent form presented to her on that day had stated she was to receive a phenol block she would not have understood what it meant. When asked if she would have signed the consent form if it had said she was to receive a phebol block, she stated: "If I had known what it would do, I wouldn't."

This statement clearly goes to whether Butler had been informed by her physician of the risk associated with the procedure. To the extent there is a duty in Georgia to disclose risks associated with a procedure performed by a doctor, that duty rests squarely upon the doctor. If an injury would have occurred notwithstanding alleged acts of negligence of the defendant, there could be no recovery in an action for negligence. Given the undisputed facts of this tragic case it is clear the sole proximate cause of Butler's injury was that Dr. Kim unsuccessfully performed upon her.

In view of the fact that she admits she did not read any of the consent forms, including the one involved here, it is clear that she would have been injured even if the correct procedure had been listed. We also note that only if the nurse, through negligence, puts the wrong procedure on the form and physician follows the form, thereby committing malpractice, would the nurse's/hospital's negligence be the proximate cause of the malpractice. Here the form had nothing to do with what the physician did. Any negligence of the hospital's employees regarding the consent form was therefore eliminated as a proximate cause of the Butler's injuries.

It is clear, as the trial court noted, that she would never have agreed to the procedure had she known that it carried the risk of quadriplegia. Sadly, however, she would have known had her treating physician explained to her what he was doing and the risk involved. Fortunately, she has been able to recover from her physician.

Editor's Note: The court overruled trial court's decision to deny South Fulton's motion for summary judgment. 

Butler v. South Fulton Medical Center 215 Ga. App. 809; 452 S.E. 2d 768; 1994 Ga. App.