Indiana Law Review


History and Jurisprudence of
the Physician-Patient Relationship in Indiana

Eleanor D. Kinney*
Myra C. Selby**

Introduction

Common law principles have and continue to govern the physician-patient
relationship, the foundation upon which health care delivery is based. A strong
physician-patient relationship is essential to successful medical treatment, and

sound legal rules delineating the contours of that relationship are necessary to

support the development of strong physician-patient relationships.

Indiana courts have made a significant contribution in this area. In so doing,
Indiana courts have well served both the patients and physicians of Indiana. In

addition, Indiana court decisions have been models for the courts of other states

as they address the fundamental legal issues regarding the physician-patient

relationship.

This Article first reviews some important history about the health care system

in Indiana. It then examines how Indiana jurisprudence regarding the physician-
patient relationship has evolved since the state's early years. Finally, the Article

addresses future challenges that Indiana law faces with respect to the delineation

of the physician-patient relationship.

I. History

The historical context in which Indiana's jurisprudence on the physician-
patient relationship evolved is instructive. It explains, in part, why the Indiana
judiciary has had the opportunity to provide innovative legal analysis and guidance

on the physician-patient relationship and, in particular, the problems that arise in

this relationship.

Indiana has many significant accomplishments in the health care field.
Specifically, the first medical society in the Northwest Territory was established

in Vincennes, Indiana, prior to 1818. An early commentator noted this event:

The first medical society organized in the Northwestern Territory. . .
occurred in Vincennes, Indfiana]. The exact date is not positively known,
but I know for a fact that its origin was prior to the year 1818. .. . I have
evidence, obtained from a newspaper published in this town. ... No
known records of this society exist. 1

* Professor of Law and Director, Center for Law & Health, Indiana University School of
Law—Indianapolis. B.A., 1969, Duke University; 1970, University of Chicago; J.D., 1973, Duke
University School of Law; M.P.H., 1979, University of North Carolina at Chapel Hill.

** Associate Justice, Supreme Court of Indiana. A.B., 1977, Kalamazoo College; J.D,

1980, University of Michigan.

1 . G.W.H. Kemper, A Medical History ofthe State of Indiana 18-19(1911) (internal
quotations omitted).



264 INDIANA LAW REVIEW [Vol. 30:263

The Sanitary Revolution and the discovery of the bacterial origin of infectious
disease in the latter part of the nineteenth century

2
brought governmental efforts

to improve public health.
3

In 1881, Indiana was one of the first states to enact
public health legislation and establish a state health department.

4
It was not

smooth sailing for a state agency devoted to public health in those early years. Dr.

Hurty, one of the first state health officers, reported his exchange over some public
health measures with a recalcitrant state legislator who closed the conversation
with this remark: "I will tell you what can be done. We will get a resolution
through [the legislature] to abolish the whole health business."

5
Obviously, this

prescient legislator did not foresee the future development of the health care

system nor the extensive involvement of both the legislature and judiciary in the

law of the "health business."

Attempts were made to establish a medical school in Indiana as early as 1839;
however, they were ultimately unsuccessful.

6
Indiana University established its

school of medicine in 1903. Today, the School of Medicine, located in

Indianapolis, is one of the largest in the United States and trains most of Indiana's

physicians.
7

Over the years, Indiana has also developed several leading hospitals. Wishard

Memorial Hospital, Indianapolis' s oldest hospital, is one of the nation's largest
providers of health care services to the indigent.

8
Other leading hospitals with

national reputations abound throughout the state and have a distinguished history.9

Through the years, Indiana has continued its leadership in the health care

sector. Even in the later development of the law governing third party payment,
Indiana and its lawyers played a pivotal role. In the years after the inauguration

of the Medicare
10
program in 1965, Indiana hospital lawyers were leaders in

challenging the Medicare cost reimbursement rules perceived to be unfair. For

example, in 1979, the Indiana Hospital Association argued successfully before the

Provider Reimbursement Review Board, the administrative tribunal which
adjudicates Medicare payment disputes with hospitals,

11
that nonprofit hospitals

2. 25 Encyclopaedia Britannica 454-56 ( 1 5th ed. 1 986).

3. George Rosen, A History of Public Health 192-93 (1958).
4. Act of Mar. 7, 1881, ch. 19, 1881 Ind. Acts 37 (repealed 1949). See IND. CODE §§16-

19-1-1 to -3 (1993) (establishing the state department of health); id. §§ 16-19-3-1 to -25 (1993 &
Supp. 1996) (duties of state department of health).

5. Indiana State Department of Health, Changes in Health Care Policy 5 (1995)

(unpublished paper on file with the Indiana Law Review). We are indebted to our colleagues at the
Indiana State Department of Health for bringing this legislator's futuristic vision to our attention.

6. Kemper, supra note 1 , at 20-2 1

.

7. Encyclopedia of Indianapolis 760 (David J. Bodenhamer et al. eds., 1994).

8. Id. at 1432.

9. Id. at 71 1-14, 1104, 1196, 1214-15.

10. Health Insurance for the Aged (Medicare) Act, Pub. L. No. 89-97, 79 Stat. 290 (1965)

(codified as amended in scattered sections of 26 U.S.C., 42 U.S.C., and 45 U.S.C.).

11. 42U.S.C. § 1395oo(1994).



1997] PHYSICIAN-PATIENT RELATIONSHIP 265

were entitled to a return on equity capital under the old Medicare cost

reimbursement rules for hospitals.
12

Eventually, the federal courts upheld the

Secretary of Health and Human Services' reversal of this decision. 13

Indiana has also provided the nation with leadership regarding reforms in the

procedures for adjudicating medical malpractice cases. In 1975, under the

guidance of its physician-governor, Otis R. Bowen, Indiana enacted an innovative
medical malpractice statute that imposed a cap on recoverable damages and other

reforms.
14

Indiana's comprehensive reforms were among the first in the country
to be implemented in response to increased medical malpractice claims and the

escalating cost of malpractice premiums for health care providers.
15 The act and

its various reforms have been adopted by other states and have also been included

in bills for malpractice reform at the federal level.
16

Further, empirical research

demonstrated that Indiana's reformed system actually provided claimants having

large claims with more compensation than neighboring states which had not

adopted those reforms.
17

In 1980, the Indiana Supreme Court in Johnson v. St. Vincent Hospital, Inc.
1 *

upheld the constitutionality of Indiana's act. This decision has been recognized

by at least one prominent scholar as the appropriate analysis of the

constitutionality of damage caps, screening panels, and other reforms.
19

Further,

after several earlier state court decisions invalidated comparable malpractice

reforms, the trend among state courts has been to uphold malpractice reform
statutes with damage caps and screening panels on the same grounds as the

12. PRRB Dec. No. 79-D95, Dec. 17, 1979 [1979-2 Transfer Binder] Medicare & Medicaid
Guide (CCH) <j[ 30,163, aff'd in part and rev'd in part, HCFA Admr. Dec, Feb. 15, 1980 [1980
Transfer Binder] Medicare & Medicaid Guide (CCH) f 30,333.

13. Indiana Hosp. Ass'n v. Schweiker, 544 F. Supp. 1 167 (S.D. Ind. 1982), aff'd sub nom.

St. Francis Hosp. Ctr. v. Heckler, 714 F.2d 872 (7th Cir. 1983). See generally Eleanor D. Kinney,

Medicare Payment to Hospitalsfor A Return on Equity Capital: The Influence ofFederal Budget

Policy on Judicial Decision-Making, 1 1 J. CONTEMP. L. 453 (1985).

14. Act of Apr. 17, 1975, No. 146, 1975 Ind. Acts 854 (repealed 1993) (current version at

Ind. Code §§ 27-12-14-1 to -5 (1993)).

15. Eleanor D. Kinney & William P. Gronfein, Indiana's Malpractice System: No-Fault
By Accident?, 54 LAW&CONTEMP. PROBS. 169, 171 (1991).

16. See Randall R. Bovbjerg, Legislation on Medical Malpractice: Further Developments

and a Preliminary Report Card, 22 U.C. DAVIS L. REV. 499, 521-31 (1989). See also Eleanor D.

Kinney, Malpractice Reform in the 1990s: Past Disappointments, Future Success?, 20 J. HEALTH

POL.,POL'Y&L. 99, 110-19, 112-13, tbls. 1-2, app. A (1995).
17. William P. Gronfein & Eleanor D. Kinney, Controlling Large Malpractice Claims: The

Unexpected Impact ofDamage Caps, 16 J. HEALTH POL., POL'Y & L. 441, 441 (1991).
18. 404 N.E.2d 585 (1980). In Johnson, the court upheld the act against the challenge that

the act violated article I, section 23 of the Indiana Constitution. Id. at 597. Since the decision in

that case, the Indiana Supreme Court has changed its interpretation of that constitutional provision.

Collins v. Day, 644 N.E.2d 72 (Ind. 1994).

19. PaulC. Weiler, Medical Malpractice on Trial 41 (1991).



266 INDIANA LAW REVIEW [Vol. 30:263

Indiana Supreme Court in St. Vincent.
20

More recently, Indiana demonstrated significant leadership in its public
response to the AIDS epidemic. In the early 1980s, the public school authorities
in Kokomo, Indiana sought to prevent young Ryan White, who had contracted
AIDS from a blood transfusion for hemophilia, from attending public school.21

Ryan White challenged the decision of the school authorities. 22 The Clinton
Circuit Court eventually upheld Ryan's right to attend public school.

23

Responding to the Ryan White controversy, the Indiana State Commissioner of
Health publicly and emphatically supported Ryan White's right to attend school
in light of the non-contagious nature of the AIDS (HIV) virus in a school setting.24

This enlightened attitude has been demonstrated in other areas. Commentators
have put Indiana ahead "of other states with its statewide services plan and

network of community action groups" regarding its treatment of the AIDS
epidemic.

25
Ultimately, Ryan White became a symbol of the AIDS tragedy in the

United States. The federal legislation supporting various AIDS-related programs
bears Ryan's name—the Ryan White Comprehensive AIDS Resources Emergency
Act.

26

Indiana has also demonstrated leadership in legislation addressing complex

end-of-life decisions and planning. Specifically, in 1985, Indiana enacted the

Living Wills and Life-Prolonging Procedures Act.
27

This act permits a competent

person to provide binding direction on whether to withhold life-prolonging

medical procedures.
28

In addition, the Indiana legislature has enacted the Health

Care Consent Act (HCCA),29 a durable power of attorney statute that permits the
appointment of health care representatives to make decisions in the event of
incompetence. In so doing, Indiana was the first state to adopt the Model Health-
Care Consent Act.

30

20. Id. at 42-43.

21

.

See Lawrence Kilman, Nation 's School Officials Seek Guidelinesfor Dealing with AIDS

in the Classroom, INDIANAPOLIS STAR, Aug. 4, 1985, at 22; AIDS Ruling Defied, Cm. TRIB., Dec.

19, 1985, at 3; Court Rulings in Other AIDS Cases, L.A. TIMES, Sept. 9, 1987, at 6.

22. Kilman, supra note 21, at 22.

23. Teenage AIDS Victim Back in Class After Indiana Judge Lifts Injunction, ATLANTA J.

& CONST., Apr. 10, 1986, at A02.
24. See Kilman, supra note 21, at 22.

25

.

Glare ofMedia Dogs 14- Year-Old AIDS Victim, THE OTTAWA CITIZEN, Sept. 2, 1 986,

atB16.

26. Pub. L. No. 101-381, 104 Stat. 576 (1990) (codified in scattered sections of 42 U.S.C.).

27. IND. CODE §§ 16-36-4-1 to -13 (1993 & Supp. 1996). See Carol A. Mooney, Indiana's
Living Wills and Life-Prolonging Procedures Act: A Reform Proposal, 20 IND. L. REV. 539 (1987).

28. Ind. Code § 16-36-4-8 (1993).

29. IND. CODE §§ 16-36-1-1 to -14 (1993). See generally William H. Thompson, Indiana's

New Health Care Consent Act: A Guiding Lightfor the Health Care Provider, 21 IND. L. REV. 181

(1988); Linda S. Whitton, Health Care Advance Directives: The Next Generation, RES GESTAE,

June 1995, at 18.

30. Model Health-Care Consent Act, 9 U.L.A. 453-77 ( 1 988).



1997] PHYSICIAN-PATIENT RELATIONSHIP 267

In sum, Indiana has a long and distinguished history of accomplishment in

health law. The Indiana health care agencies, professionals, and institutions, as
well as their attorneys have a tradition of innovation, leadership and excellence.

It is no wonder that the Indiana judiciary has responded with similar leadership in

tackling the important legal issues facing the health care system today.

n. Three Exemplary Cases

The authors have selected three cases which demonstrate the important
tradition of the Indiana judiciary in defining the physician-patient relationship and

the contours of that relationship. The first case, Hurley v. Eddingfield
31

dates from

the turn of the century and defines the nature of the physician-patient relationship.

The second case, Culbertson v. Mernitz^
2
addresses physician liability based on

the failure to adequately inform the patient about treatment or procedure.
33 More

specifically, it addresses Indiana's physician-based standard of informed consent.

The third case, In re Lawrance
34

involves a difficult challenge to the physician-

patient relationship brought about by the life-extending technologies of modern
medicine.

A. Defining the Physician-Patient Relationship

In Hurley v. Eddingfield
35

the Indiana Supreme Court issued a landmark

decision which established that the physician-patient relationship is based on

contract. The 1901 opinion, written by Judge Baker just three years before his
departure for the U.S. Court of Appeals for the Seventh Circuit, defined the

contract as one into which both the physician and patient voluntarily enter.

The facts are straightforward.36 On July 6, 1899, Thomas Burk sought the
services of Dr. Eddingfield, a duly licensed physician practicing in Montgomery
County as well as the Burk's family physician, to attend Mr. Burk's wife,

Charlotte Burk, in the delivery of their child. Although Dr. Eddingfield had no

other pressing matters and there were no other available physicians, he refused to

assist Mrs. Burk. Charlotte Burk and her baby died due to complications during

31. 59N.E. 1058 (Ind. 1901).

32. 602 N.E.2d 98 (Ind. 1992).

33. Another body of law beyond the scope of this Article dealing with the physician-patient

relationship gone awry is the law of fraudulent concealment. See, e.g., Hughes v. Glaese, 659

N.E.2d 516 (Ind. 1995); Guy v. Schuldt, 138 N.E.2d 891 (Ind. 1956); Follett v. Davis, 636 N.E.2d

1282 (Ind. Ct. App. 1994); Weinberg v. Bess, 638 N.E.2d 841 (Ind. Ct. App. 1994); Adams v.

Luros, 406 N.E.2d 1 199 (Ind. Ct. App. 1980); see also John C. Render, Health Care Law, 1994

Survey ofRecent Developments in Indiana Law, 28 IND. L. REV. 959, 960-62 (1995).

34. 579 N.E.2d 32 (Ind. 1991).

35. 59 N.E. 1058 (Ind. 1901).

36. Brief for Appellant, Hurley v. Eddingfield, 59 N.E. 1058 (Ind. 1901). See Rand E.

Rosenblatt et al., Law and the American Health Care System 48 ( 1 997). We are indebted
to Rand E. Rosenblatt, Professor of Law at the School of Law, Rutgers University of New Jersey,
Camden, for bringing this brief to our attention.



268 INDIANA LAW REVIEW [Vol. 30:263

the birth process.

Mrs. Burk's estate sued Dr. Eddingfield for $10,000 in damages for the
wrongful death of Mrs. Burk.

37 The court sustained Dr. Eddingfield' s demurrer
to the complaint.

38
Judge Baker affirmed the Montgomery Circuit Court in a clear,

brief, and controversial opinion.
39

The issue, Judge Baker contended, was the defendant's "refusal to enter into
a contract of employment."

40
Judge Baker also explored the implications of state

licensure on a doctor's obligations toward those in need of medical care and
concluded: "In obtaining the State's license (permission) to practice medicine, the

State does not require, and the licensee does not engage, that he will practice at all

or on other terms than he may choose to accept."41

Judge Baker's decision has generated considerable commentary over the years,

including articles in notable law reviews,
42
and it is also included in leading health

law textbooks.
43 One well-known commentator on the law of medical malpractice

illuminates the Hurley case's national prominence and reiterates its importance in

delineating the law of the physician-patient relationship:

The classic case in this area is Hurley v. Eddingfield, decided in 1901 by
the Supreme Court of Indiana. . . . [T]he court pointed out that the
physician-patient contractual relationship is one depending on assent of

both parties and that a license to practice medicine does not compel a

physician to contract against his will. [Doctors have] the right to refuse to

see [a] patient and [are] not therefore liable for the patient's death.
44

This case does represent a seemingly stark and harsh statement of a

physician's obligation to a potential patient. It seems especially harsh given its

support of the elective nature of the physician-patient relationship, especially in

emergency situations. Yet the law does impose considerable obligations on

physicians once the physician-patient relationship commences. It seems only fair

that physicians have control over whether they enter that relationship with all of

its attendant obligations. Perhaps ethics rather than law is the better instrument to

define the physician's moral obligation toward individuals in need of medical

treatment. It is noteworthy that the American Medical Association's Code of

37. Hurley, 59 N.E. at 1058.

38. Id.

39. Id.

40. Id.

41. Id.

42. See, e.g., Melvin A. Eisenberg, The Bargain Principle and Its Limits, 95 HARV. L. Rev.

741, 755 & n.45 (1982); Leonard S. Powers, Hospital Emergency Service and the Open Door, 66
Mich. L. Rev. 1455, 1480 & n.95 (1968); Rand E. Rosenblatt, Health Care Reform and
Administrative Law: A Structural Approach, 88 YALE L.J. 243, 248 & n.13 (1978); Graham
Hughes, Criminal Omissions, 67 YALE L.J. 590, 632 & n.148 (1957).

43. See, e.g., George J. Annas ET AL., American Health Law 45 (1990); Walter
WADLINGTONET AL., Law AND MEDICINE 102, 322, 363 (1980).

44. Angela Roddey Holder, Medical Malpractice Law 7 ( 1 975).



1997] PHYSICIAN-PATIENT RELATIONSHIP 269

Ethics enunciates a similar vision of the contractual nature of the physician-patient

relationship from a legal perspective, but imposes additional obligations on

physicians in that relationship as a matter of professional ethics.
45

B. The Physician-Patient Relationship Gone Awry—
Informed Consent in Medical Liability Cases

The physician-patient relationship, while contractual in nature, also has
associated duties in tort. Specifically, there is the general duty of care under the

law of negligence. The Restatement (Second) of Torts defines negligence as
"conduct which falls below the standard of care established by law for the

protection of others against unreasonable risk of harm."
46

In addition, the law of negligence imposes an additional duty on physicians

to accord their patients sufficient information about proposed medical treatments

to enable patients to give informed consent.
47

The doctrine was first articulated

by Justice Cardozo and was based on his observation that "[e]very human being
of adult years and sound mind has a right to determine what shall be done with his
own body."48 The doctrine of informed consent arises from the patient's right of
self-determination.

49
It requires physicians to provide information to the patient

on the nature and the purpose of the procedure or treatment as well as its risks and

alternatives.
50

Indiana adopted the physician-based standard of informed consent in

Culbertson v. Mernitz.
5]

Justice Krahulik wrote the notable opinion ninety-one

years after Hurley v. Eddingfield.

Patty Jo Culbertson consulted Dr. Mernitz for some troubling gynecological
problems. Dr. Mernitz recommended and performed two surgical procedures.
Unsatisfied with the results and treatment, Mrs. Culbertson sought another

physician's care. Ultimately, according to Mrs. Culbertson, she had to undergo

a complete hysterectomy as a result of the two procedures that Dr. Mernitz had

performed.

Mrs. Culbertson sued Dr. Mernitz on several medical malpractice theories,

45. Council of Ethical & Jud. Affairs, AMA, Code of Medical Ethics §§ 9.06, 9. 1

2

(1996-97 ed.).

46. Restatement (Second) of Torts § 282 ( 1 977).

47. Barry R. Furrow et al., Health Law §§ 6-9 to 6- 1 8 ( 1 995). See generally Ruth R.
Faden & Tom L. Beauchamp, A History and Theory of Informed Consent (1986).

48. Schloendorff v. Society of N.Y. Hosp., 105 N.E. 92, 93 (1914).

49. Faden & Beauchamp, supra note 47, at 9, 33; Furrow, supra note 47, § 6-9;
1 President's Comm'n for the Study of Ethical Probs. in Med. & Biomed. & Behav. Res.,
MAKING HEALTHCARE DECISIONS 2-4 (1982); Marjorie Maguire Shultz, From Informed Consent

to Patient Choice: A New Protected Interest, 95 YALE L.J. 219, 220 & n. 13 (1985).
50. Faden & Beauchamp, supra note 47, at 252. See Councilof Ethical& Jud. Affairs,

AMA, CODE OF MEDICAL ETHICS § 8.08 (1994 ed.); Anthony Szczygiel, Beyond Informed Consent,
21 Ohio N.U.L. Rev. 171, 184(1994).

51. 602 N.E.2d 98 (Ind. 1992).



270 INDIANA LAW REVIEW [Vol. 30:263

including informed consent.
52

She asserted that Dr. Mernitz "failed to inform her

of the alternatives to the surgery and the inherent risks and complications of the

surgery."
53 She proceeded through the medical review panel, as required by

Indiana's medical malpractice statute,
54

without success.
55

The Fulton Circuit
Court granted summary judgment for the defendant on all claims.56 The Indiana
Court of Appeals reversed in part,

57
because it determined that a lack of informed

consent claim did not require expert medical testimony.
58

On transfer, the Indiana Supreme Court held that "except in those cases where
deviation from the standard of care is a matter commonly known by lay persons,
expert medical testimony is necessary to establish whether a physician has or has

not complied with the standard of a reasonably prudent physician."
59

In this

holding, the Indiana Supreme Court clearly adopts a physician-based standard for

determining informed consent.

But the court was by no means united in its decision. Justice Krahulik was
joined by Chief Justice Shepard and Justice Givan. Justice Dickson wrote a

spirited dissent which Justice DeBruler joined.

The doctrine of informed consent has generated considerable debate, and
Culbertson reflects that debate. The reason for the debate is the doctrine's
troubling nature. Liability based on informed consent is often imposed even when
liability based on negligent performance of the medical care in question is not

warranted. From the physician's perspective, liability is based on factors, such as
the outcome of future events, beyond the control of the physician. The patient, on

the other hand, lives with a bad result that might have been avoided had the

physician provided better information on which to base decisions about medical

treatment. But then, the physician counters, will a patient, in retrospect, ever have

had enough information if the outcome is bad.

It is no surprise that state courts over the years have adopted two approaches

to determining whether patients have given informed consent. One approach is
a physician-oriented standard that focuses on what a prudent physician would have

done in like or similar circumstances regarding advising the patient about a risk

inherent in a proposed procedure.
60 The second approach is a patient-oriented

standard that focuses on what a prudent patient would have needed to know
regarding a given risk.

61

Operationally, the different standards impose different requirements for the

requisite expert testimony to establish informed consent. With the prudent

52. Id. at 99.

53. Id.

54. Ind. CODE § 27-12-8-4 (1993).

55. Culbertson, 602 N.E. 2d at 99.

56. Id.

57. Id. (citing Culbertson v. Mernitz, 591 N.E.2d 1040, 1042 (Ind. Ct. App. 1992)).

58. Id. at 99-100.

59. Id. at 104.

60. Furrow, supra note 47, § 6- 1 0(b).

61. /</. § 6- 10(a).



1 997] PHYSICIAN-PATIENT RELATIONSHIP 27

1

physician standard, expert testimony is required to establish what a reasonable

physician would have done in similar circumstances.
62

In the prudent patient

standard, beginning with the seminal cases of Cobbs v. Grant
63
and Canterbury

v. Spence,
64

the plaintiff need not introduce expert testimony once the existence

of the risk is established, and the jury can determine if adequate information was

given for informed consent.
65

It is with this understanding of the problematic nature of the informed consent

doctrine, that one comes to appreciate both the majority and dissenting opinions

in Culbertson v. Mernitz.

In the majority opinion, Justice Krahulik comes down on the side of the
physician and requires the plaintiff to present expert testimony on what

information a reasonably prudent physician would have offered in the same

situation. Justice Krahulik reiterates that this standard was well established in

Indiana and other jurisdictions prior to the early 1970s when "two cases on the
opposite coasts carved out an additional exception to the requirement of expert

medical testimony in the area of 'informed consent'"

—

Cobbs v. Grant and

Canterbury v. Spence.
66

After reviewing informed consent in Indiana jurisprudence,
67

Justice Krahulik

offers a perspective on the practical problem of the physician in the informed

consent situation:

From a physician's viewpoint, he should not be called upon to be a "mind
reader" with the ability to peer into the brain of a prudent patient to

determine what such patient "needs to know," but should simply be called

upon to discuss medical facts and recommendations with the patient as a

reasonably prudent physician would.
68

Justice Krahulik, not unmindful of the patient's important interest in self-

determination, comments further: "the physician should be required to give the
patient sufficient information to enable the patient to reasonably exercise the

patient's right of self-decision in a knowledgeable manner."
69

Further, he

observes, that patients do not want the medical profession "to determine in a

paternalistic manner what the patient should or should not be told concerning the

course of treatment."
70

Justice Krahulik also recognized that the medical profession's own ethical
standards on informed consent had become more sensitive to the importance of
patient autonomy in decision-making about medical care. He quotes the standard

62. Id. § 6- 10(b).

63. 502P.2dl (Cal. 1972).

64. 464 F.2d 772 (D.C. Cir. 1972).

65. Furrow, supra note 47, § 6- 10(a)

66. Culbertson, 602 N.E.2d at 100.

67. Id. at 101-04.

68. Id. at 103.

69. Id. at 104.

70. Id.



272 INDIANA LAW REVIEW [Vol. 30:263

on informed consent from the 1992 Code of Medical Ethics Current Opinions
prepared by the Council on Ethical and Judicial Affairs of the American Medical
Association: "The patient's right of self-decision can be effectively exercised only

if the patient possesses enough information to enable an intelligent choice."
71

This

standard goes on to state the physician's obligation to "present the medical facts

accurately" and to "make recommendations for management in accordance with
good medical practice."

72 The standard also recognizes that reasonable patients
"should not be expected to act uniformly, even under similar circumstances, in

agreeing to or refusing treatment."
73

In his thoughtful dissent, Justice Dickson comes down on the side of the
patient.

74 He places great emphasis on the value of patient autonomy as paramount
in resolving the informed consent dilemma. He recalls that the court's decision
in the case, In re Lawrance, had recognized "a commitment to patient self-
determination."

75 He goes on to assert that "informed consent is a requisite
component of the doctor-patient relationship, attributable in part to the relative

lack of parity in that relationship."
76

Justice Dickson recognizes that the real nub of the informed consent dilemma
and the basis of the conflict between prevailing standards is the "disagreement

concerning the role of expert witnesses in determining whether the informed

consent of the patient has been obtained."
77
With respect to the nature of testimony

needed, Justice Dickson nicely states the applicable rule for the prudent patient

standard: "while medical expertise would be required to identify the risks of the

proposed treatment and non-treatment, the fact finder needs no expert guidance

to determine the materiality of a particular risk to a patient."
78

Justice Dickson

then lays out the contours of material risk, quoting extensively from Canterbury

v. Spence.
19

Further, Justice Dickson rejects the majority's view that the relevant ethical

commands of the medical profession adequately address the problem of informed
consent. Specifically, Justice Dickson maintains that the AMA standard did not
articulate useful parameters to guide physicians on the extent to which risks must

be disclosed to patients.
80

However, he points out that this deficiency is

"understandable" because the extent of disclosure is really a "non-medical

71. Id. at 103-04 (quoting COUNCIL ON ETHICAL & JUD. AFFAIRS, AMA, 1992 CODE OF
Medical Ethics Current Opinions (1992)).

72. Id.

73. Id.

74. Id. at 104 (Dickson, J., dissenting).

75. 579 N.E.2d 32 (Ind. 1991).

76. Culbertson, 602 N.E.2d at 105 (Dickson, J., dissenting) (citing Cobbs v. Grant, 502 P.2d

l,9(Cal. 1972)).

77. Id. at 105.

78. Id.

79. Id. at 105-06.

80. Id at 106.



1997] PHYSICIAN-PATIENT RELATIONSHIP 273

determination."
81

Justice Dickson concludes: "It is only from the perspective of

the ordinary person that a fact-finder can realistically determine how much
information is 'enough' for the ordinary reasonable patient to make an informed
decision."

82

Justice Dickson is not unmindful of the dilemma the informed consent

situation placed on physicians in requiring a physician "to speculate as to what a

hypothetical reasonable patient would 'need to know.'" However, he is also

concerned about "bias" and "protective self-interest" with the prudent physician

standard
83
and concludes: "Sympathy for such a physician plight, however, is

eclipsed by the fundamental value of patient autonomy and self-determination."
84

The Culbertson case presents two opinions that articulate the two prevailing

positions on the highly troublesome informed consent doctrine in an especially

skillful and accurate manner. On the one hand—the majority tips the balance in
favor of the physician. On the other hand—the dissent would tip the balance in
favor of the patient.

Conscientious courts endeavor to avoid dissents and speak with one voice.

But dissents are wonderful from the perspective of the law teacher for they show
students the essential character of the law. Namely, at its heart and core, the law

is rhetoric to be plied by lawyers who make it work for the resolution of their
clients' problems—day-by-day, case-by-case. Inevitably, there are always more
than two sides to any legal issue.

But only academic lawyers have the luxury of vacillating from side to side on

important legal questions. Courts must pick a position and decide—even when the
issues are not straightforward and the consequences for the loosing party

unfortunate. In those opportunities when the Indiana Supreme Court has been
asked to take a position and decide questions in delineating the physician-patient

relationship, it has done so with wisdom and sensitivity and has achieved justice.

C. The Physician-Patient Relationship Faces New Challenges

Both Hurley and Culbertson teach that the physician-patient relationship is

one which includes certain duties and obligations on the part of the physician

toward the patient. Perhaps the most significant of these duties is that of

informing the patient of the risks involved in a proposed medical treatment or

procedure so that the patient can reach an informed decision about consenting to

that treatment or procedure.

Frequently, however, physicians and other health care providers must treat

individuals who lack the capacity to consent. For example, patients who suffer an
injury rendering them unconscious cannot consent to treatment. To deal with such
situations, various forms of constructive or substituted consent have emerged in

81. Id.

82. Id.

83. Id.

84. Id.



274 INDIANA LAW REVIEW [Vol. 30:263

the law.
85

This substituted consent generally allows a surrogate to make medical
decisions on behalf of the patient.

86

In the landmark decision In re Lawrance*1 the Indiana Supreme Court
addressed a special form of constructive consent—surrogate decision-making by
the parents and siblings of an individual who was never competent to give
consent.

88 The opinion, written by Chief Justice Shepard, examines the propriety
of surrogate decision-making when the decision will most likely result in the
patient's death. Lawrance is significant in Indiana health law jurisprudence,
because, at the time the court heard the case, it was unclear whether artificially-

provided nutrition and hydration constituted medical treatment. It was also
unclear whether such treatment could be withdrawn based on the consent of

parents as surrogate decision-makers.
89

Also, as discussed below, this decision has

been important for other state courts in delineating sound rules to address these
90

issues.

Sue Ann Lawrance, born in 1949, grew normally from birth until age nine
when she began to show symptoms of intracranial pressure. Sue Ann underwent
a craniotomy, a procedure intended to relieve the pressure on her brain.

91
After

undergoing this procedure, Sue Ann suffered permanent brain damage. She was,
however, still functional to some degree. Throughout the rest of her childhood
and adolescence, she attended special schools and camps for the handicapped.

Her condition deteriorated over time.

In 1987, at thirty-eight years of age, Sue Ann fell while attending a camp for
the disabled and suffered a subdural hematoma. She underwent a second

craniotomy. On July 24, 1987, she entered the Manor House nursing home in
Noblesville, Indiana, and she remained in a persistent vegetative state until her

death on July 18, 1991. She was forty-two years old at the time of her death.
Before Sue Ann Lawrance died, her condition had deteriorated to the point

that she could no longer receive food or water orally. To provide her with
sustenance, Sue Ann's caretakers inserted tubes into her stomach to deliver

nutrition and hydration. Her doctors predicted that she would remain in this state
indefinitely. On March 4, 1991, her parents petitioned the court for permission to

85. Furrow, supra note 47, § 17-16.

86. Id.

87. 579 N.E.2d 32 (Ind. 1991).

88. See FURROW, supra note 47, § 17-31 for a general discussion regarding never-

competent individuals.

89. Vaneeta M. Kumar & Eleanor D. Kinney, Indiana Lawmakers Face National Health
Policy Issues, 25 IND. L. REV. 1271, 1272 (1992).

90. See Susan Busby-Mott, The Trend Towards Enlightenment: Health Care

Decisionmaking in Lawrance and Doe, 25 CONN. L. REV. 1159 (1993); Edward O'Brien, Note,

Refusing Life-Sustaining Treatment: Can We Just Say No?, 67 NOTRE DAME L. REV. 679 (1992);
Recent Case, 105 Harv. L. Rev. 1426 (1992).

91. Lawrance, 579 N.E.2d at 35. Although the case does not specifically state it,

considering their daughter's minor status, it was most likely Sue Ann's parents who consented to

the craniotomy.



1997] PHYSICIAN-PATIENT RELATIONSHIP 275

withdraw their daughter's artificially provided nutrition and hydration.
92

She died

of natural causes before the petition wended its way through the courts.
93

However, after her death, despite the mootness of the case, the Indiana

Supreme Court decided to issue an opinion. The court found that the case
involved a question of "great public interest,"

94
a well-carved out exception to the

mootness doctrine. The court also stated: "[I]rrespective of the death of the
patient in this litigation, many Indiana citizens, health care professionals, and
health care institutions expect to face the same legal questions in the future."

95

Indiana's approach, which gives great deference to the family's interest in making

informed medical treatment choices without state intervention, is consistent with

positions advocated by various commentators in this area.
96

The court addressed two issues of significance to surrogate decision-makers,

physicians, and health care treatment facilities. First, the court examined the issue

of whether Indiana's Health Care Consent Act (HCCA) applies where the family
of a never-competent patient in a persistent vegetative state seeks to withdraw

artificially provided nutrition and hydration.
97 The HCCA98 permitted individuals

authorized to make medical treatment decisions for another—surrogate decision-
makers

—
"to provide, withdraw, or withhold medical care necessary to prolong

life."
99 The act clearly accorded a surrogate decision-maker the right to withdraw

medical care. Therefore, the resolution of the case turned on whether artificially

provided nutrition and hydration, i.e., food and water delivered directly to the

patient's stomach through tubes, constituted "medical treatment" within the

meaning of the HCCA. 100

The HCCA did provide some guidance on this question. The court
determined that the act, by virtue of its definition of "health care," applied to

"health care" decisions.
101

Specifically, the HCCA defined "health care" as "any
care, treatment, service, or procedure to maintain, diagnose, or treat an individual's

92. Id. The petition was filed in Hamilton Superior Court No. 2.

93. Id. at 36.

94. Id. at 37.

95. Id.

96. See, e.g., The Saikewicz Decision, Judges As Physicians, 298 NEW ENG. J. MED. 508
(1978) (arguing that the court should not involve itself in private decisions between families of

incompetent patients and their physicians); Task Force on Ethics of the Society of Critical Care

Medicine, Consensus Report on Ethics ofForegoing Life-Sustaining Treatments in the Critically

III, 18 Critical Care Med. 1435-39 (1990) (arguing that judicial intervention should be a last

resort).

97. Lawrance, 579 N.E.2d at 38-41.

98. Act of Apr. 30, 1987, No. 207, 1987 Ind. Acts 2340 (codified as amended at IND. CODE

§§ 16-8-12-1 to -13 (1988 & Supp. 1992) (repealed 1993) (current version at IND. CODE §§ 16-36-
1-1 to -14 (1993)).

99. Ind. Code. § 16-8-12-1 1(a) (Supp. 1992) (repealed 1993).

100. See Kathleen M. Anderson, Note, A Medical-Legal Dilemma: When Can

"Inappropriate" Nutrition and Hydration Be Removed in Indiana?, 67 IND. L.J. 479, 500 (1992).

101. Lawrance, 579 N.E.2d at 40.



276 INDIANA LAW REVIEW [Vol. 30:263

physical or mental condition."
102

However, the HCCA itself did not address the
question of whether artificial nutrition and hydration was a "treatment" under the
act. If it did, the plain language of the HCCA would permit a surrogate decision-
maker to consent to the withdrawal of artificial nutrition and hydration.

The court, looking to the Indiana medical community, Indiana statutory law
and courts in other jurisdictions, concluded that there was no substantial difference

between artificial nutrition and hydration and any other medical treatment.
103

Interestingly, this conclusion is consistent with other positions advanced by the

Hastings Center
104

and the American Medical Association.
105

The court reiterated Indiana's commitment to a patient's right of self-
determination regarding decision-making in medical situations.

106 The right to
consent to a course of treatment, the court determined, necessarily includes the

right to refuse a course of treatment.
107

The court noted that a patient's autonomy does not end when the patient
becomes incompetent, but rather the power to make decisions about health care
shifts to the family.

108 The court concluded that "artificial nutrition and hydration
is treatment that a competent patient can accept or refuse, that the family of an

incompetent patient can accept or refuse it on behalf of the patient, and that the

procedures of the HCCA apply to such decisions." 109

The court next addressed the question of whether court proceedings were
necessary to implement the surrogate's decision to withdraw nutrition and

hydration.
110 The court found that the HCCA was designed to avoid court

proceedings, and that with such a design, the legislature had signaled its clear

intent to favor the decision of family-member surrogates over decisions arrived at

through judicial intervention.
111 The court wrote that the court system should

"become involved only when no one is available to make decisions for a patient
or when there are disagreements."112 The court concluded that court proceedings
were not necessary for the Lawrance family to make health care decisions for their

102. Id. at 38.

103. Id.

104. See The Hastings Center, Guidelines on the Termination of Life-Sustaining

Treatment and the Care ofthe Dying 59 (1987) (concluding that standards for withdrawal of

artificial nutrition and hydration are essentially the same as other forms of medical treatment).

1 05. See COUNCIL OF ETHICAL AND JUD. AFFAIRS, AMA, CODE OF MEDICAL ETHICS § 2.20
(1996-97 ed.) (concluding that patient autonomy includes the decision to forgo life-sustaining

treatment which may include artificial nutrition and hydration, and if the patient is not competent

to make this decision a surrogate may make the decision for the incompetent patient).

106. Lawrance, 579 N.E.2d at 38-39 (citing the Indiana Constitution, the common law, and

several statutes in support of its decision).

107. Id. at 39.

108. Id.

109. Id. at 41.

110. Id. at 41-44.

111. Id. at 41-42.

112. Id. at 42.



1997] PHYSICIAN-PATIENT RELATIONSHIP 277

daughter, and that, in the future, health care providers could rely on the decision

of surrogate decision-makers to withdraw life sustaining treatment in similar

circumstances.
113

Through Lawrance, Indiana adopted the family-based model of decision-

making for incompetent patients who have left no or inadequate advance
directives.

114
This model allows the family of a never-competent patient to make

treatment choices with the assistance of a family physician without the need for

judicial intervention.
115

It is also important to note that the court dismissed the

emergency guardianship statute as inapplicable to this case.
116 The court asserted

that the legislature did not intend to permit strangers to litigate family decisions.
117

In so doing, the court reiterated its support for the private nature of medical

decisions which should be made between the physician and the incompetent
patient's family. This excludes uninterested (in a legal sense) third parties and the

court system from intruding unnecessarily into the private decisions of Indiana's

citizens.

The articulation of the family-based decision-making model in Lawrance has

received some acclaim. Specifically, one commentator observed that: "[T]he
Indiana Supreme Court reclaimed the power of surrogates to make decisions for
incompetent patients, setting an example for other states to follow."

118 The case

has been touted, not only for its determination that artificial treatment and

hydration is a medical treatment which can be removed,
119

but also for its clear

support of private medical decision-making.
120

Yet the Lawrance decision has not been without criticism.
121 The major thrust

of these critiques is a failure to delineate guidance for families in making

decisions. Chief Justice Shepard has responded to this criticism:

The students who edit the Harvard Law Review thought we had failed in
our duty to our citizens. I am not persuaded that families need much
guidance from judges on these questions or that a court which purports to

provide such guidance won't only embroil families in difficult litigation.

Surrounded as they are by legions of legal entanglements already, families

would do best to consult their own hearts and consciences. The nation
has thrived as families have done that over the generations, and it will

probably be the surest path for the years ahead.
122

113. Id. at 43.

114. See Busby-Mott, supra note 90, at 1175-76, for a discussion of the Family-Based

Decision Making Model.

115. Id. at 1175.

1 16. Lawrance, 579 N.E.2d at 43-44.

117. Id. at 44.

118. Busby-Mott, supra note 90, at 1 222.

119. Id. at 1 2 1 3 ; Anderson, supra note 1 00, at 494.

120. Busby-Mott, supra note 90, at 1225; Kumar & Kinney, supra note 89, at 1276.
121. See generally O'Brien, supra note 90; Recent Case, supra note 90.

122. Randall T. Shepard, Family Decisionmaking and Forgoing Treatment: A Judicial



278 INDIANA LAW REVIEW . [Vol. 30:263

What does the case mean to physicians and patients in Indiana? It is clear
after the Lawrance opinion that the Health Care Consent Act permits the surrogate
decision-maker broad authority to decide to withdraw extraordinary artificial

means used to sustain life when there is no reasonable hope of recovery from a
persistent vegetative state. The Lawrance decision also serves as a guide to other
states adopting the Uniform Health-Care Consent Act and generally as an attempt

to resolve questions of surrogate decision-making.

Conclusion

The physician-patient relationship has faced tremendous challenges since the
turn of the century and the historic case of Hurley v. Eddingfleld. Modern medical
science has developed highly successful treatments for illness as well as life

prolonging technologies. Because of the high cost of these treatments and

technologies, public and private health insurance has, with all the attendant efforts

of third parties to constrain the escalating cost of medical care, impinged on,

although not attenuated, the essential therapeutic relationship between physician

and patient. Further, the physician-patient relationship has been challenged by

expanded tort liability rules, primarily from the 1960s forward, that impose greater

accountability on physicians in their relationships with patients.

The twenty-first century will undoubtedly see increasing challenges for the
physician-patient relationship. State courts, including Indiana's, must be ready to

assist physicians, patients and the other major players in the health care system in

delineating appropriate legal rules to meet these challenges and in defining the

new dimensions of the relationship in a sound and just manner.

Perspective, 10 ISSUES L. & Med. 251, 260 (1994) (citation omitted).