Nishi v. Hartwell

Dr. Paul Nishi (plaintiff) was referred to Dr. Alfred Hartwell (defendant) after complaining of chest pain. Hartwell believed that Paul could be suffering from an aneurysm and discussed Paul’s medical situation with Paul and his wife, Frances (plaintiff). After consulting with a thoracic surgeon, Dr. Niall Scully (defendant), Hartwell recommended to Paul that Paul undergo a thoracic aortography to determine whether he had an aneurysm. Frances later claimed that Hartwell had told Paul that he had nothing to worry about and that the procedure was a simple one. Paul consented to Scully performing the procedure. Scully performed the procedure, which left Paul paralyzed from the waist down. The paralysis resulted from a side effect from the contrast medium used by Scully as part of the procedure. Hartwell and Scully both had been aware that paralysis was a possible risk of the procedure but had not informed Paul of the possibility. Paul and Frances brought a medical-malpractice suit against Hartwell and Scully for damages from the disability suffered as a result of the procedure. The Nishis argued that the failure to disclose the risks of the procedure voided Paul’s consent, so the performance of the unconsented-to procedures constituted battery. Hartwell explained that he had not disclosed the risk of the procedure to Paul because Paul was very apprehensive about his condition, and Harwell was concerned that if he mentioned that there was a remote chance of paralysis from the procedure, Paul would not have agreed to the procedure. Hartwell believed such a decision could be life threatening. Scully also explained that he had omitted the risk of paralysis when informing Paul about the procedure because he believed that full disclosure was not in Paul’s best interest, considering Paul’s state of mind about his medical condition, and because the risk was relatively minimal. Paul testified that Hartwell and Scully had not made any promises regarding the outcome of the procedure. Paul and Frances argued that even if Paul could not have been informed of the risks of the procedure, the doctors should have informed Frances. After the Nishis rested their case, the circuit court granted Hartwell and Scully’s motion to dismiss. The Nishis appealed.