Holland v. Sisters of Saint Joseph of Peace

HOLMAN, J.,

dissenting.

The majority opinion reverses the case for the failure to give a proper instruction upon the right of the plaintiff to have alternative methods of treatment explained to her by the defendants so that she could make a choice. This assumes that there was evidence of feasible alternative methods recognized by the medical profession as proper treatment for plaintiff’s particular situation.

There is no substantial dispute as to what the evidence shows. The defendants’ testimony was to the effect that the treatment which was given of two large doses of radium a week apart was the only proper treatment for plaintiff. The plaintiff’s testimony, on the other hand, was to the effect that the only proper treatment for plaintiff was two smaller amounts of radium two weeks apart. There was no evidence by anyone that both methods of treatment were proper for plaintiff.

I diverge from the balance of the court on what I see as a question of logic. The majority sees the jury as being able to find that both methods were proper and, therefore, there was a basis upon which to give the jury an instruction on feasible alternative methods of treatment. I see the jury as being able to find that *139one or the other was proper and, therefore, there was no basis for finding that both were proper. The choice for the jury, as I see it, was whether the plaintiff’s or the defendants’ expert medical testimony was correct, and the jury made the choice in favor of defendants’ testimony.

Before a physician should be required to explain alternative methods of treatment, there should be testimony that the medical profession objectively recognizes feasible alternative methods of treatment for the patient’s particular condition. There was no such testimony in this case.

Because I believe plaintiff was not entitled to an instruction on alternative methods of treatment, I would affirm. Plaintiff could not have been prejudiced by the faulty instruction.