(dissenting) — I respectfully dissent. I would hold appellant Bob Gustav stated and factually supported a claim that his physician failed to inform him of facts material to his treatment.
Early in 1987, Gustav learned he was at risk of prostate cancer. A suspicious nodule was found during a digital rectal examination, and he had an elevated score in a Prostate-Specific Antigen (PSA) blood test. Gustav, then 65 years old, consulted Dr. Gottesman. Dr. Gottesman initially thought it was probable that cancer would be found, and ordered a biopsy. The biopsy was negative for cancer. Dr. Gottesman did not inform Gustav that the biopsy measured fewer areas than he had intended.
In view of the negative biopsy, Dr. Gottesman diagnosed Gustav’s symptoms as manifesting prostatitis, not cancer, though he continued to monitor his PSA level and to send the lab reports to Gustav. PSA levels were being reported in two different scales depending on which lab did the testing. According to the declaration of Dr. Palken submitted by Gustav in defending the motion for summary judgment, Dr. Gottesman did not realize values reported by different labs needed to be converted in order to be comparable, and consequently he did not have accurate information with which to track Gustav’s PSA levels. On occasion, he reported to Gustav his PSA levels were falling when actu*793ally they were rising. Notably, Gustav’s PSA level increased by 50 percent between August and September 1989, but Dr. Gottesman reported to Gustav that it had fallen. By sending Gustav copies of the lab reports displaying absolute values and reassuring him that they represented falling levels, Dr. Gottesman demonstrated his own belief in the significance of PSA levels. Yet, in 1991 when Dr. Gottesman became aware that he had misinterpreted the lab reports, he did not inform Gustav about it.
Later in 1991, Dr. Gottesman, noting a changing appearance in the prostate, ordered another biopsy. His partner, Dr. Lilly, performed the biopsy, but stopped early when it became painful to Gustav. The biopsy was negative for cancer. Dr. Gottesman told Gustav that he was satisfied with the biopsy because even though they did not take as many tissue samples as planned, they did take samples from the most suspicious areas. Dr. Gottesman did not inform Gustav that Dr. Lilly had written on his note, “Appropriate biopsies could not be completed.”13 The majority opinion holds as a matter of law that Gustav’s allegations “involved negligence prior to treatment, not informed consent concerning a treatment the doctor proposed to use.”14 I disagree. The majority’s characterization of Gustav’s cause of action overlooks Gustav’s memorandum responding to the defendants’ motion for summary judgment in which he put his informed consent claim squarely at issue:
It goes without question that, had Mr. Gustav known his PSA was rising instead of staying the same, he would have asked what else could have been done, or if an additional biopsy should have been performed. He could have gotten a second opinion. Had Mr. Gustav been told that both of the biopsies were flawed, he would have asked that they be completed and/or performed again.
*794The majority places this case within the rule that “a physician’s failure to diagnose a condition is a matter of medical negligence, not a violation of the duty to inform.”15 But here, Gustav is not invoking Dr. Gottesman’s duty of care in making a diagnosis. He is invoking Dr. Gottesman’s duty to provide complete information about the PSA levels and the biopsies in order to enable Gustav to intelligently choose the course of his own medical care.16
The majority relies on Bays v. St. Luke’s Hospital,17 in which the court held that “the duty to disclose does not arise until the physician becomes aware of the condition by diagnosing it.” The court rejected the plaintiffs’ argument that the physician’s failure to diagnose a life-threatening condition was actionable both as a violation of the standard of care and as a violation of the duty to disclose the risks and methods of treatment for the undiagnosed condition. By contrast, Gustav is not arguing that Dr. Gottesman breached a duty to disclose a diagnosis the doctor had not yet reached. He is arguing the doctor breached a duty to disclose facts material to Gustav’s belief that no additional biopsies were necessary.
A health care provider may become liable for breaching a duty to obtain informed consent if the provider fails to “inform the patient of a material fact or facts relating to the treatment.”18 Failure to obtain informed consent is itself a form of negligence because it breaches a duty of due care to alert the patient to abnormalities in his body.19 The doctor’s duty to inform the patient is a fiduciary duty, arising from the relationship of trust and the physician’s recognition of the patient’s ignorance and helplessness regard*795ing his own physical condition.20 The duty to disclose material facts arises as “to each item of information which the doctor knows or should know about the patient’s physical condition.”21 The scope of the duty to disclose is “the reasonably foreseeable risk to the patient of a proposed course of treatment.”22
Applying these legal rules to the present case, Dr. Gottesman was aware that Gustav’s condition strongly suggested cancer. After the first biopsy came back negative, he diagnosed the condition as prostatitis. From then on, Dr. Gottesman’s treatment was to diagnose and treat prostatitis, while continuing to monitor for new signs of cancer. He continued with the same course of treatment after doing a second biopsy which also came back negative. This course of treatment, because it depended on the accuracy of the PSA levels and the adequacy of the biopsies, presented a foreseeable risk to the patient if the PSA levels were inaccurately tracked and the biopsies were incomplete. A jury could thus find that Dr. Gottesman breached his duty to disclose material facts when he failed to inform Gustav of the errors in the information underlying Gustav’s consent to a course of treatment involving no additional biopsies. The nondisclosure deprived Gustav of the choice to seek additional biopsies or a second opinion from a physician better informed about how to interpret PSA tests.
Under Miller v. Kennedy,23 the scope of the duty to disclose information concerning the risk of a course of treatment is measured by the patient’s need to know information necessary to an intelligent choice. It is “the prerogative *796of the patient” to choose his course of treatment.24 The inquiry is whether “the patient as a human being” would consider the item in choosing his or her course of treatment.25 Once the plaintiff has established a prima facie case of failure to disclose, the burden shifts to the physician to prove a defense by explaining the reasons for not providing the information.26
The defendants’ only argument in moving for summary judgment was that Gustav’s informed consent claim was completely subsumed under his negligence theory. I would hold Gustav established a distinct prima facie case of breach of the duty to disclose. Dr. Gottesman’s explanation, that he did not need to tell Gustav about the erroneous PSA readings or the flaws in the biopsies because these items were not significant to his diagnosis, is a defense. It does not negate the plaintiff’s cause of action.
I would reverse and remand for trial on the issue of informed consent.
Review denied at 136 Wn.2d 1023 (1998).
Dr. Lilly qualified this observation in deposition, saying that on the whole he felt the patient had an adequate evaluation. But on summary judgment we must construe all inferences in favor of Gustav, the nonmoving party, and an available inference is that Dr. Lilly would have recommended doing another biopsy.
Majority at 789.
Majority at 790.
See Gates v. Jensen, 92 Wn.2d 246, 250, 595 P.2d 919 (1979).
Bays v. St. Luke’s Hosp., 63 Wn. App. 876, 881, 825 P.2d 319, review denied, 119 Wn.2d 1008 (1992); see also Burnet v. Spokane Ambulance, 54 Wn. App. 162, 168, 772 P.2d 1027, review denied, 113 Wn.2d 1005 (1989).
RCW 7.70.050(l)(a).
Miller v. Kennedy, 11 Wn. App. 272, 282, 522 P.2d 852 (1974).
Miller v. Kennedy, 11 Wn. App. at 282.
Id.; quoted in Keogan v. Holy Family Hosp., 95 Wn.2d 306, 315, 622 P.2d 1246 (1980).
Keogan v. Holy Family Hosp., 22 Wn. App. 366, 369, 589 P.2d 310 (1979). On appeal to the Supreme Court, the Court of Appeals analysis of the informed consent issue was cited with approval by Justice Hicks’ concurring/dissenting opinion, in which he was joined by four other members of the Supreme Court. Keogan, 95 Wn.2d at 330.
Miller v. Kennedy, 11 Wn. App. 272, 282-83, 522 P.2d 852 (1974).
Id. at 283.
Id. at 282.
Id. at 283.