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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. [2] Perkins, and
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 Hospital and
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, Drugstore, Inc.
and the case against the physician and pharmacy wastried before a jury. The jury returned a general verdict for No. 387-80.
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. [1] 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. [3] 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, 138 Vt.
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, Northfield, 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., 123 Vt.
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, 138 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 [1] 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 [2] 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 [3] 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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