## Facts

- Richard R. Miller consulted John A. Kennedy, M.D., for fatigue, lightheadedness, and shortness of breath with exercise.
- Kennedy diagnosed progressive heart block, hospitalized Miller, and ordered tests to determine the cause.
- Testing revealed a kidney abnormality; Kennedy determined a renal biopsy was indicated. Witnesses for both sides agreed the decision to biopsy was not malpractice.
- Kennedy performed a percutaneous renal biopsy that led to serious complications and loss of Miller’s kidney.
- The key dispute was pre-procedure disclosure: Miller testified Kennedy did not disclose the risk of kidney loss or discuss alternatives and that he would not have consented if warned; Kennedy testified he did disclose risks, supported by the hospital record and his prior detailed explanations to Miller.
- Miller sued alleging negligent performance and lack of informed consent; Kennedy denied negligence and characterized the outcome as an adverse complication despite meeting the standard of care.

## Issues

1. Whether the trial court properly instructed the jury on res ipsa loquitur in a medical malpractice case involving loss of a kidney after biopsy.
2. Whether the trial court erred by instructing that informed-consent disclosure is governed by a professional/customary standard requiring expert proof, rather than a patient-centered materiality standard.
3. Whether other challenged instructions and evidentiary rulings (including “guarantor of results,” “mistake in judgment,” exclusion of exhibits, and withdrawal of a post-biopsy-care theory) warranted relief.

## Decision

- The jury returned a verdict for Dr. Kennedy; the trial court denied Miller’s post-trial motions.
- The Court of Appeals reversed the judgment and remanded for a new trial.
- The court held the res ipsa loquitur instructions were erroneous because they improperly constrained the jury’s ability to draw a permissive inference of negligence from the occurrence.
- The court held the informed-consent instruction was erroneous because it framed disclosure as a matter of professional custom provable only through expert testimony, rather than focusing on information material to a patient’s decision.
- The Washington Supreme Court later affirmed, adopting the Court of Appeals’ reasoning.

## Legal Principles

- Informed consent is a distinct basis of liability: a patient may recover for injuries proximately caused by a procedure performed without informed consent even if the procedure was performed non-negligently.
- The duty to disclose is measured by the patient’s need for information material to the decision; it is not controlled by local or professional customs of disclosure.
- Materiality turns on what a reasonable person in the patient’s position would consider significant in deciding whether to undergo the proposed treatment; expert testimony may describe risks and alternatives, but the disclosure duty is not defined by professional custom alone.
- Causation in informed-consent claims requires a showing that adequate disclosure would have changed the decision to proceed, evaluated by an objective reasonable-patient standard (with the patient’s testimony relevant but not determinative).
- Res ipsa loquitur in medical cases, when supported by the evidence, permits (but does not require) the jury to infer negligence; instructions must not convert the doctrine into an unduly restricted or misleading standard that prevents the inference.

## Conclusion

The appellate court ordered a new trial because the jury was misinstructed on both res ipsa loquitur and informed consent, holding that disclosure is judged by material information a reasonable patient would need to decide, not by what physicians customarily disclose or what experts define as a disclosure standard.


Miller v. Kennedy, 11 Wash. App. 272 (1974)