reactions. She was rushed to the hospital emergencyroom where she was treated for chest pains and shortness
of breath. Following discharge, plaintiff continued toexperience chest pains and related medical problems.
455 A.2d 810 (Vt. 1982)
In September, 1978, plaintiff brought suit against the
142 Vt. 305
defendant physician alleging he was negligent in havingprescribed Flagyl, and that he had failed to obtain
Carl PERKINS, Executor of the Estate of Dorothy
plaintiff's informed consent to the Flagyl treatment. 
The complaint also named the hospital as a partydefendant, apparently on the basis of respondeat superior.
Carl Perkins, Individually
[142 Vt. 308]
complaint in August, 1979, alleging that
WINDSOR HOSPITAL CORP. d/b/a Mt. Ascutney
the defendant pharmacy negligently prepared, dispensed
and labelled the Flagyl prescription.
Health Center, Dale Gephart, M.D. and Kelley's
The defendant hospital's motion to dismiss thecomplaint for failure to state a claim as to it was granted,
and the case against the physician and pharmacy wastried before a jury. The jury returned a general verdict for
the defendants and answers to written interrogatoriesfinding neither defendant negligent. Plaintiff appeals
Supreme Court of Vermont.
from the ensuing judgment, raising numerous grounds forreversal.
December 1, 1982
Plaintiff first claims in her brief that the trial court
erred in refusing her request to charge 12 V.S.A. § 1909,Vermont's informed consent statute. Count II of plaintiff's
original complaint alleged that the defendant physician
failed to obtain plaintiff's informed consent to the
Kiel & Boylan, Springfield, Clifford M. Miller,
treatment in question. She also submitted proposed
Springfield (on the brief), for defendants-appellees.
instructions, seeking to have the court give a charge on §1909. Moreover, plaintiff complied with the requirement
of V.R.C.P. 51(b) that the party "[state] distinctly the
defendant-appellee Kelley's Drugstore.
matter to which he objects and the grounds of hisobjection." The issue has therefore been preserved for
[142 Vt. 305]
BARNEY, C.J., and BILLINGS, HILL,
appellate review. Sanville v. Williams,
138 Vt. 498, 501,
418 A.2d 860, 862 (1980); Palmisano v. Townsend,
136Vt. 372, 374-75, 392 A.2d 393, 395 (1978).
[142 Vt. 307]
BARNEY, Chief Justice.
This is a medical malpractice action. In the fall of1976, plaintiff Dorothy Perkins underwent an elective
The standards pertaining to informed consent
cholecystectomy at Mt. Ascutney Hospital in Windsor,
established by this Court in Small v. Gifford Memorial
Vermont. Prior to her release the defendant physician
Hospital, 133 Vt. 552, 557, 349 A.2d 703, 706-07 (1975),
issued plaintiff a prescription for the drug Flagyl.  The
have, since that decision was rendered, been modified by
drug was prescribed in an effort to discover the cause of
legislation. 12 V.S.A. § 1909, entitled: "Limitation of
atypical cells, disclosed in plaintiff's routine pap smear
medical malpractice action based on lack of informed
consent," became effective on April 7, 1976. 1975, No.
250 (Adj.Sess.), § 3. Section 1909 reads in pertinent part:
Plaintiff filled the prescription at the defendantpharmacy in Windsor, Vermont. Some time later,
(a) For the purpose of this section "lack of informed
according to plaintiff's testimony, she ingested the initial
prescribed dosage of Flagyl and suffered severe adverse
(1) The failure of the person providing the
professional treatment or diagnosis to disclose to thepatient such alternatives thereto and the reasonably
Count I of plaintiff's complaint alleged that the
physician's decision to prescribe Flagyl to plaintiffconstituted professional medical negligence. See 12
[142 Vt. 309]
risks and benefits involved as a reasonable
V.S.A. § 1908. The jury disagreed, answering a written
medical practitioner under similar circumstances would
interrogatory with the finding of no negligence on his
have disclosed, in a manner permitting the patient to
Plaintiff asserts, however, that judgment in favor of
It is against this statutory language that the trial
the defendants as to the medical negligence claim must be
judge's instructions must be measured.
It is clear from the transcript that plaintiff's claim of
lack of informed consent centered around (1) whether thedefendant physician provided plaintiff with any warning
because the trial court erred in using assumption of risk
concerning the dangers of taking Flagyl after ingesting
language when instructing the jury on the defendants'
alcoholic beverage; and (2) whether, assuming such a
affirmative defense of comparative negligence. In Sunday
warning was given, it was adequate in light of plaintiff's
v. Stratton Corp.,
136 Vt. 293, 304, 390 A.2d 398, 404
infirmities.  Although the trial judge charged
(1978), we stated that "use of assumption of risk language
extensively on the elements of medical malpractice, see
is irrelevant and confusing in a jury instruction on
12 V.S.A. § 1908, he refused plaintiff's request to charge
comparative negligence." The parties were entitled to a
the elements of informed consent as set forth in § 1909
jury free from irrelevancies and possible confusion.
stating: "There is no competent medical evidence in the
While mindful that, under V.R.C.P. 51(b), the procedures
record that would support that charge." We disagree with
for preserving objections to jury instructions are limited
this assessment of the state of the evidence below.
by requiring an objection "before the jury retires toconsider its verdict," Collette v. Bousley,
141 Vt. 373,
The cornerstone of plaintiff's suit was the claim that
374, 449 A.2d 936, 937 (1982), we nonetheless agree
she had not knowingly and intelligently consented to
with plaintiff that the instruction given was erroneous. In
Flagyl treatment because she had not been made aware of
charging the jury, the trial court blended the instructions,
the reasonably foreseeable risks, in particular the
creating an overlap between the negligence of the doctor
potential adverse reaction when combined with alcohol.
in prescribing Flagyl in the first place, the warnings, if
In response to this allegation, the defendant physician
any, to Mrs. Perkins of potential harmful side effects and
testified that although he did not recall actually warning
her assumption of risk. The interrogatories given the jury
plaintiff of this risk, it nevertheless was his "custom" to
further emphasized this meld by asking only if Dr.
give such an oral warning. Plaintiff's expert testified that
Gephart was negligent, and not separating the two causes
even if the physician had given his customary warning it
of action. Thus, while ordinarily the mere inclusion of the
would not have provided plaintiff with sufficient
assumption of risk language might not have been
information concerning the dangers to permit plaintiff to
reversible error, and this is particularly true here since it
make a knowledgeable evaluation to undergo the
[142 Vt. 311]
as required by V.R.C.P. 51(b), it becomes
This testimony in itself was enough to require that
so from the unfortunate interweaving of those concepts.
informed consent be fully charged. See 12 V.S.A. §1909(e). Instead, while the charge as given did contain
In other words, the plaintiff correctly noted his
some of the elements of informed consent, they were
objections to, among other things, the failure to give an
sparse at best, and considered in context with the charge
informed consent instruction and the confusion of
as a whole, did nothing by express reference to this issue
contributory negligence with the alleged warnings by the
doctor or pharmacist. Formal objection was not madespecifically to the words "assumed the risk" included in
[142 Vt. 310]
question before the jury. Even assuming
the negligence charge. Thus, under our long-established
these references might have alerted a person trained in
rule, review of the irrelevant assumption of risk language
the law of the subject, we conclude they were not
is not undertaken except to prevent a failure of justice.
sufficient, either as a directive to a jury of laymen that the
See McCrea v. State,
138 Vt. 517, 519-20, 419 A.2d 318,
factual issue was theirs to determine, or as providing a
319 (1980); 2B W. Barron & A. Holtzoff, Federal
Practice and Procedure § 1106 (C. Wright ed. 1961). As
consideration. Accordingly, we hold that plaintiff was
we unanimously agree, the lack of an informed consent
effectively deprived of her right to have the jury
charge was error and was objected to. Unlike the minority
determine the adequacy of the information furnished by
opinion, however, we will not preclude ourselves from
examining the totality of the charge merely because there
was no formal objection to three irrelevant words.
to the hospital on the basis of respondeat superior. Thehospital moved, unsuccessfully, for summary judgment
A brief examination of the charge given highlights
on the ground that the physician was an independent
our concerns and supports our conclusion that the error
contractor. On the day of jury drawing, the hospital
requires reversal. The court told the jury to turn their
moved to dismiss the complaint for failure to state a
attention "to the specific legal principles which [they]
claim as to which relief can be granted. V.R.C.P.
must apply in determining whether or not the defendant,
12(b)(6). The court granted this motion without giving
Doctor Gephart, was or was not negligent." The
explanation of the legal principles, however, immediatelybecame muddled:
Plaintiff promptly moved for reconsideration of thedismissal and sought to amend the complaint against the
The claim of negligence against Doctor Gephart relates to
defendant hospital. This motion was denied, the court
his act of prescribing the drug Flagyl. Your first task is to
stating: "The proposed amendments would cause
decide what standard of care is required of physicians in
prejudice to the defendants . because they state an
Doctor Gephart's type of practice in this general area with
entirely new cause of action and are out of time." The
respect to the need to warn when prescribing Flagyl for
amendments, if allowed, would have clarified the
this purpose you may and should consider the testimony
respondeat superior claim and alleged direct negligence
of all the physicians who testified.
The court then went on to outline very briefly the
[142 Vt. 313]
We find that the court erred in refusing to
jury's task of weighing the evidence before it against the
permit the requested amendments; reversal of judgment
in favor of the defendant hospital is therefore required.
If you find that Doctor Gephart did not meet this standard
V.R.C.P. 15(a) directs the trial courts that "leave [to
of care, then you may find he was negligent and is
amend] shall be freely given when justice so requires."
responsible for any damages that were the proximate
Moreover, the lower courts must be mindful of the
result of his negligence. If you also find, however, that
"historical Vermont tradition of liberality in the
allowance of amendments to the pleadings." Tracy v.
Vinton Motors, Inc.,
130 Vt. 512, 513, 296 A.2d 269, 271
[142 Vt. 312]
Perkins had been warned of potential
(1972). Nonetheless, we will reverse a trial court's ruling
harmful effects, if any, of Flagyl, by any other individual,
on a motion for leave to amend only if the ruling is an
you must find that Mrs. Perkins assumed the risk of
abuse of discretion. Gilwee v. Town of Barre,
which she had been warned and that Doctor Gephart is
109, 111, 412 A.2d 300, 301 (1980). See also 6 C. Wright
not legally responsible for any damages.
& A. Miller, Federal Practice and Procedure § 1484(1971).
It is clear that, what started as an instruction onnegligent
It appears that the court below denied plaintiff's
instruction "with respect to a need to warn."
motion to amend in part because it stated a new cause of
Compounding the error, the court charged that, if the jury
action--direct negligence on the part of the defendant
should find the existence of a warning "by
hospital. This was error. V.R.C.P. 15 directs the trialcourt to consider not whether the amendment raises a
new cause of action but "whether the just and expeditiousdisposition of the controversy between the parties will be
any other individual," then Dr. Gephart would not be
advanced by permitting the amendment." 1A W. Barron
legally responsible for any damages. This incorrectly
& A. Holtzoff, Federal Practice and Procedure § 448, at
states the law. As we have already noted, 12 V.S.A. §
753 (C. Wright ed. 1960). The trial court should have
1909(a) requires that "the person providing the
considered the propriety of plaintiff's motion to amend by
professional treatment" disclose the risks. Not only is this
examining several factors: (1) undue delay; (2) bad faith;
instruction confusing and erroneous, it is also strongly
(3) futility of amendment; and (4) prejudice to the
tilted in favor of Dr. Gephart. Monti v. Town of
opposing party. See Forman v. Davis,
371 U.S. 178, 182,
135 Vt. 97, 99, 369 A.2d 1373, 1375 (1977).
83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962). None of these
See also Gibson v. Mackin Construction Co.,
factors support the denial of plaintiff's motion to amend.
287, 292-93, 187 A.2d 337, 340-41 (1963) (Barney, J.,dissenting).
The second reason advanced by the court in supportof its denial of plaintiff's motion for leave to amend was
that the amendments were out of time. By this it appears
Plaintiff also presents a valid argument for reversal
that the trial court concluded that the amendments were
with respect to the dismissal of the complaint against Mt.
barred by the applicable statute of limitations, 12 V.S.A.
Ascutney Hospital. Her original complaint sought to
§ 521, since made more than three years after the
impute the alleged negligence of the defendant physician
occurrence of the alleged negligence. This, too, was error.
V.R.C.P. 15(c) governs the relation back of
I concur with the majority on the issues relating to
amendments, stating: "Whenever the claim . asserted in
informed consent, the hospital, and the pharmacy. I agree
the amended pleading arose out of the conduct,
also that the charge to the jury on informed consent was
erroneous because it embodied irrelevant assumption ofrisk language. I disagree strongly, however, that the
[142 Vt. 314]
occurrence set forth or attempted to be set
charge as given constitutes reversible error. In my view it
forth in the original pleading, the amendment
is most unfortunate that plaintiff is to be given "anotherbite of the apple," and the physician subjected to further
travail because of a minor error which is highly technicalat best. The possibility of the charge having "confused"
relates back to the date of the original pleading." Here the
the jury is so remote and improbable as to be virtually
proposed amendments were designed to accomplish two
nonexistent. Accordingly, I am compelled reluctantly to
goals (1) clarify the claim under respondeat superior, and
dissent from the reversal of the jury's verdict in favor of
(2) allege direct negligence against the hospital. There is
the physician on the medical negligence count.
no question regarding the relation back of theamendments to the respondeat superior claim. Thus it was
First, plaintiff failed to object to the irrelevant part of
error to deny that amendment as "out of time."
the charge before the case was submitted to the jury asrequired by V.R.C.P. 51(b). This Court has ruled on
It was also error to refuse to allow the direct
numberless occasions that only those claims relating to
negligence amendment. The negligence claim arose out
jury instructions which are raised in the trial court will be
of the conduct or occurrence set forth in the original
considered on appeal. A failure to do so "constitutes a
complaint. The defendant hospital had notice from the
waiver of the claim of error." State v. Joyce,
139 Vt. 638,
beginning of this action that plaintiff sought to hold it
640, 433 A.2d 271, 272-73 (1981); McCrea v. State,
responsible for the harm she allegedly suffered as a result
Vt. 517, 520, 419 A.2d 318, 319 (1980). I do not
of the Flagyl treatment. We find the hospital's assertion
understand why the majority has failed to apply this
that it would be prejudiced if the amendment is permitted
sound and well-established rule, and has created in its
unpersuasive in light of the fact that the hospital was a
place, relying on what I view as thin if lengthy
party defendant up to the actual day of jury drawing. Any
rationalizing, a legal specter that will serve as a precedent
surprise engendered by allowance of the proposed
and come back to haunt us. The majority opinion does
amendment could have been eliminated by requesting a
recognize the rule, but thereupon departs from it. I
believe this departure will require some uncomfortable ifnot embarrassing explaining away in future cases.
The sole issue presented by plaintiff's appeal fromjudgment in favor of the defendant pharmacy is whether
I disagree strongly with the majority view that the
the court erred in refusing to charge the jury on the
instruction may have confused the jury by "overlapping"
practice of pharmacy, as defined by 26 V.S.A. § 2022(6).
the negligence and informed consent issues. The
We answer this question in the negative.
negligence count related very clearly throughout to theprescription of Flagyl, not to whether plaintiff gave her
Chapter 36 of Title 26 is designed to "promote,
informed consent to the treatment. As I read the court's
preserve and protect the public health, safety and welfare
instructions, the majority's argument exaggerates their
by and through the effective control and regulation of the
possible impact beyond any reasonable likelihood of fact.
practice of pharmacy." 26 V.S.A. § 2021. It is a general
regulatory chapter, not a statutory codification of the tortliability of pharmacists. In view of the court's extensive
[142 Vt. 316]
reached through a labored rationalization,
instruction on the elements of pharmacist's liability, it
seeking to accomplish what the majority views as the
was not error to refuse to charge § 2022(6).
ends of justice. I am apprehensive, however, that such anadmittedly desirable result in any litigation is not being
Judgment in favor of defendant Dale Gephart, M.D.
as to the informed consent and negligence countsreversed and remanded. Judgment in favor of Windsor
Assuming, for purposes of argument however, that
Hospital Corp. d/b/a Mt. Ascutney Hospital and Health
the majority is correct in postulating a thoroughly
bewildered jury, it concludes that when such a possibilityemerges, "all bets are off;" all rules are out the window.
[142 Vt. 315]
Judgment in favor of Kelley's Drugstore,
A party then has no further responsibilities to object, or
take any other steps to afford the court an opportunity to
PECK, Justice, concurring in part and dissenting in
correct an error. He may sit back and do nothing, or rely
on some vague, broad, and subsequent action, and still
The majority has elected to raise an error (not
preserve the question for review in the event the verdict is
not to his liking. In effect, I believe the claim is presentedhere for the first time, and the claimed error is far from
being so glaring or egregious to justify our sua spontereview, particularly where, in doing so, we are treating
affected thereby), which I view as trivial and
plaintiff with an exception to our timely-objection rule.
nonprejudicial, to the level of reversible error, therebygiving plaintiff another roll of the dice. I cannot sit idly
Even errors of constitutional magnitude may not be
by and countenance, without comment, a majority view
for consideration on appeal if not raised below, Cleveland
which I consider to be palpably and egregiously wrong
v. Department of Employment Security,
138 Vt. 208, 211,
under some of our own most fundamental and firmly
414 A.2d 1157, 1159 (1980), and this is so even in
established rules of appellate review. I would affirm the
criminal cases, State v. Patnaude,
140 Vt. 361, 368, 438
judgment in favor of the defendant physician on the
A.2d 402, 404 (1981), where the rights of a person
accused of a crime are rigidly protected. It is, therefore,all the more difficult to comprehend the radical departure
from these fundamentals by the majority. The rationale
 Flagyl is a brand name for the chemical
Secondly, whatever error there was in charging the
jury, it was manifestly harmless within the meaning ofV.R.C.P. 61. The jury found the defendant physician was
 Mrs. Perkins' husband Carl Perkins is also a plaintiff
not negligent in prescribing Flagyl. How then can it
in this action. Mrs. Perkins is now deceased and her
possibly be said that the jury was confused or mislead by
representative has been substituted as a party. V.R.A.P.
the assumption of risk language? It is as obvious as
Cyrano's nose that the jury never even reachedcomparative negligence or assumption of risk, let alone
 Plaintiff Dorothy Perkins had a history of mental
having been confused by the latter. Only if there had been
illness, alcoholism and physical problems.
a finding of negligence in the first instance wouldcomparative negligence have entered the picture, and
only in that case might there have been some arguablepossibility of confusion with assumption of risk, asremote and speculative as even that would be in this case.
But the ultimate irony of this argument, it seems to me,lies in the fact
[142 Vt. 317]
that, assuming confusion did result, it could
have worked only in favor of the plaintiff, since it would
have provided broader grounds on which to base a
finding of negligence by adding informed consent as an
element. Very clearly, in my view, plaintiff has failed
totally to show the slightest degree of prejudice resulting
from this most trivial and irrelevant of errors; the burden
was upon her to do so. Paradis v. Kirby,
138 Vt. 524,
528, 418 A.2d 863, 865 (1980).
Further, the majority, for no reason apparent to me,has turned away from our obligation to affirm the resultreached in the trial court when it is reasonably possible,and it is certainly more than just that here. Appellatecourts traditionally go to some lengths to affirm theresults reached below, if it is reasonably possible to doso. Rarely, however, in my experience, do courts go tothe tenuous lengths represented by the majority positionhere to accomplish a reversal when an affirmance is, inmy judgment, clearly called for, and the more obviousand direct. When it becomes necessary to protest toomuch, the validity of the result is at least suspect andshould be examined carefully.
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