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Consent and Informed Consent

Brief - Misrepresentations about a physician's qualifications void informed consent - Duttry v. Patterson, 741 A.2d 199 (Pa.Super., 1999) - on appeal

Mrs. Duttry was under the care of Dr. Patterson and Patterson Surgical Associates when she underwent surgery for esophageal cancer.  She claimed that a leak later occurred along the surgical site which developed into a rupture requiring emergency surgery.  She then developed ARDS with permanent damage to her lungs.  This rendered her unable to work. Mrs. Duttry filed a claim against Dr. Patterson, the Patterson Surgical Associates and the Polyclinic Medical Center.  Polyclinic Medical Center was later dismissed but the battery claim for lack of informed consent and negligence against Dr. Patterson along with the respondent superior claim proceeded.  The jury returned a verdict in favor of the defendants and this appeal followed.

At issue in the case was the trial court's refusal to permit Mrs. Duttry to offer documentary and testimonial evidence relating to the actual number of esophageal surgeries performed by Dr. Patterson before he operated on Mrs. Duttry.  Mrs. Duttry made an offer of proof testifying she questioned Dr. Patterson about his experience and he advised her he had performed the same particular procedure on an average of once a month.  In fact, Dr. Patterson had only performed it five times in the preceding five years.  The trial court ruled this information was irrelevant and excluded the evidence.  The trial court looked to Kaskie v. Wright, 589 A.2d 213 (Pa.Super. 1991), which stated that a physician is not required to inform a patient of the number of times he has performed a specific procedure.  The appellees further contended that appellants did not offer any medical expert testimony that Dr. Patterson's level of inexperience with this type of surgery presented a material risk with respect to the surgery. 

The Superior Court concluded that the information was relevant under the facts of the case and that medical expert testimony was unnecessary in the battery claim.  The court stated that an agreement between a physician and a patient is contractual and both parties must understand the nature of the undertaking as well as the expected results. The court concluded that a reasonable person would consider it significant if an individual surgeon who provides false information when so questioned would be subject to a claim of lack of informed consent.  The court further concluded that individuals who question their surgeons prior to surgery about competence, experience, expertise or seeking of information relevant to them in making an informed decision about their surgeon is highly relevant.  A surgeon who then misinforms the patient about this information and misleads the patient into believing that they are in the hands of an experienced surgeon does not have the true consent of that patient. The Court stated that they were not implying that surgeons must inform all their patients about their educational background and experiences, but where such information is sought by the patient deems it very relevant and truthful answers must be given in order to obtain a valid consent. 

The Court further held that there was no expert testimony needed because the theory of recovery is battery and the plaintiff need not establish negligence.  The trial court erred in prohibiting the introduction of evidence regarding the accuracy of Dr. Patterson's responses to Mrs. Duttry's inquiries about his surgical experience which a reasonable person would deem to be a significant factor in formulating consent to a surgery by this particular surgeon.  Therefore, the court vacated the judgment entered in the matter and remanded for a new trial.


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