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| [1] | Pennsylvania Superior Court |
| [2] | No. 199 MDA 1999 |
| [3] | 741 A.2d 199, 1999.PA.0045406 <http://www.versuslaw.com> |
| [4] | October 05, 1999 |
| [5] | CLOMA E. DUTTRY AND ALVIN DUTTRY, APPELLANTS v. LEWIS T. PATTERSON, M.D. AND PATTERSON SURGICAL ASSOCIATES, APPELLEES |
| [6] | Appeal from the Judgment entered following the Order entered December
18, 1998 in the Court of Common Pleas of Dauphin County,Civil, No. 2359
S 1991. |
| [7] | Del Sole, Stevens, JJ. and Cirillo, P.J.E. |
| [8] | The opinion of the court was delivered by: Del Sole, J. |
| [9] | ¶1 This is an appeal from a judgment entered following a jury verdict
in favor of defendants-Appellees in a matter brought by Appellants based
upon negligence and a failure to obtain informed consent. We vacate the
judgment and remand for a new trial on Appellants' informed consent claim. |
| [10] | ¶2 Appellant, Cloma Duttry, was under the care of Lewis T. Patterson,
M.D. and Patterson Surgical Associates when she underwent surgery for esophageal
cancer. Appellants*fn1
claim that a leak later occurred along the surgical site which developed
into a rupture requiring emergency surgery. They assert that as a result
Mrs. Duttry developed Adult Respiratory Disease Syndrome with permanent
damage to her lungs, rendering her unable to work. |
| [11] | ¶3 Appellants brought an action against Dr. Patterson, Patterson
Surgical Associates, and the Polyclinic Medical Center. Upon stipulation
of all parties Polyclinic Medical Center was dismissed from the case. Appellants'
battery claim for lack of informed consent, and negligence against Dr. Patterson
proceeded to trial, as did their claim against Patterson Medical Center
based upon respondeat superior. The jury returned a verdict in favor of
the defendants. Appellants filed post-trial motions, which were denied,
and this appeal followed. |
| [12] | ¶4 At issue in this case is the trial court's refusal to permit Appellants
to offer documentary and testimonial evidence relating to the actual number
of esophageal surgeries performed by Dr. Patterson before he operated on
Mrs. Duttry. In support of their informed consent claim Appellants made
an offer of proof that Mrs. Duttry would testify she questioned Dr. Patterson
about his experience and he advised her he had performed this particular
procedure on an average of once a month. In fact, they allege he had performed
it only five times in the preceding five years. |
| [13] | ¶5 The trial court ruled this information was irrelevant to the doctrine
of informed consent and excluded evidence relating to the doctor's experience
and the misinformation imparted to Appellants about his surgical experience.
Both the trial court and Appellees claim that following the case of Kaskie
v. Wright, 589 A.2d 213 (Pa. Super. 1991) a physician is not required to
inform a patient of the number of times the physician has performed a specific
procedure. They claim that to do so would expand existing law to include
personal characteristics of the surgeon. As further support for the trial
court's ruling Appellees contend 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. |
| [14] | ¶6 Upon review we find no support for the trial court's ruling. We
conclude that this information was relevant under the facts of this case
and that medical expert testimony was unnecessary in this battery claim. |
| [15] | ¶7 An agreement between a physician and patient is contractual in
nature and for consent to be valid, both parties must understand the nature
of the undertaking and the possible, as well as, the expected results. Gouse
v. Cassel, 615 A.2d 331 (Pa. 1992). Although a physician need not disclose
all known information, the physician is required to "advise the patient
of those material facts, risks, complications and alternatives to surgery
that a reasonable person would consider significant in deciding whether
to have the operation." Id. at 334. The question thus becomes whether a
reasonable person who questions a doctor about the doctor's personal qualifications
and experience, when making a decision whether to have this individual perform
a procedure, would consider this information significant in making the decision.
We conclude that a reasonable person would consider it significant and an
individual surgeon who provides false information when so questioned would
be subject to a claim of lack of informed consent. |
| [16] | ¶8 While the courts of this Commonwealth have not considered this
exact question, in Johnson v. Kikemoor, 545 N.W.2d 495 (Wis. 1995), the
Supreme Court of Wisconsin reviewed a case where the plaintiff alleged that
her surgeon did not obtain her informed consent when operating to clip an
aneurysm. The plaintiff testified that she questioned the defendant regarding
his experience and he replied that he had performed the surgery "several"
times. When the plaintiff asked what he meant by "several," he replied,
"dozens." Id. at 498. In fact, however, the defendant had relatively limited
experience with aneurysm surgery and had never operated on a large basilar
bifurcation aneurysm such as the plaintiff's. The court ruled that a reasonable
person in the plaintiff's position would have considered this information
of the defendant's relative lack of experience in performing this specific
surgery to have be material in making an intelligent and informed decision
about the surgery. Accordingly it found that evidence of the defendant's
lack of experience was properly admitted to support the plaintiff's informed
consent case. |
| [17] | ¶9 We too conclude that individuals who question their surgeons prior
to surgery about their competence, experience and expertise are seeking
information that is highly relevant to them in making an informed decision
about their surgeon. A particular surgeon's skill, which many times is borne
by virtue of experience, is important to those making a choice of their
personal surgeon. Certainly one who questions a physician about these matters
deems the answers important and is entitled to truthful and accurate information.
A surgeon who, when answering a patient's inquiries, misinforms the patient
about this information and misleads the patient into believing that the
hands of an experienced surgeon will be performing the operation, does not
have the true consent of that patient. |
| [18] | ¶10 We are not implying that surgeons must inform all their patients
about their educational background and experience, but where such information
is sought, the patient deems it very relevant and truthful answers must
be given in order to obtain valid consent. The trial court cites Kaskie
v. Wright, supra. in support of its ruling that this information is irrelevant.
There the appellants claimed their informed consent was lacking because
they had not been told prior to their son's operation that the surgeon was
an alcoholic and unlicensed to practice medicine. The court considered this
claim in view of the defendant's statute of limitations defense, but in
so doing commented that it refused to expand the doctrine of informed consent
to absent information which consists of facts personal to the treating physician.
Our ruling does not differ with these comments. It is not necessary in every
case for a physician to disclose matters such as experience, credentials
or any personal problems. However, where a patient seeks to discover this
information by asking the physician these direct questions, that patient
deems such information important in the very personal decision of which
physician to choose, and a physician who obtains "consent" by providing
misinformation, does not have the true consent of the patient. |
| [19] | ¶11 This court has recognized the significance of obtaining a patient's
personal consent to permit a particular physician to perform an invasive
procedure. In Taylor v. Albert Einstein, 723 A.2d 1027 (Pa. Super. 1998)
the plaintiff alleged that she had granted consent to perform an invasive
procedure only to a Dr. Wetheimer, based upon his representation that he
had performed the procedure hundreds of times. When it was later discovered
that the procedure was actually performed by Dr. Trinkaus, this court concluded
that there was substantial credible evidence to support a battery claim
based upon lack of consent. The court ruled that "Pennsylvania law permits
a patient to specifically limit his or her consent to an invasive procedure
to a particular surgeon." Id. at 1034. |
| [20] | ¶12 The same was held to be true in the case of Grabowski v. Quigley,
684 A.2d 610 (Pa. Super. 1996), allo. granted, 698 A.2d 594 (Pa. 1997),
appeal dismissed as improvidently granted, 717 A.2d 1024 (Pa. 1998). There
the plaintiff claimed that after he had undergone surgery he learned it
was performed not by the individual surgeon he had authorized to do the
procedure, but by another not so authorized. The court ruled that the plaintiff
had alleged sufficient facts to establish a cause of action for battery
because consent was lacking. The court stated: "The patient is entitled
to the services of the particular surgeon with whom he or she contracts."
Id. at 617. |
| [21] | ¶13 These cases are similar to the instant case. They recognize that
individual patients have a right to choose their surgeons and that this
choice is often times made based upon the surgeon's qualifications and experience.
Where, however, the patient who seeks to learn such details, is provided
with false information, that patient has not validly consented to surgery. |
| [22] | ¶14 Further, Appellees assertion that Appellants could not go forward
with this informed consent case because they had no expert testimony connecting
the doctor's inexperience with the claimed injuries, is unfounded. In this
type of claim where the plaintiff alleges the physician did not have her
consent to perform the surgery because she was misinformed of his qualifications,
the theory of recovery is battery and the plaintiff need not establish negligence.
As was stated in Taylor v. Albert Einstein, supra: "Unlike an informed consent
case where it must be shown that 'as a result of the recommended treatment,
the patient actually suffers an injury the risk or which was undisclosed,
or the patient actually suffers an injury that would not have occurred had
the patient opted for one of the undisclosed methods of treatment,' it is
not necessary for a plaintiff to prove such specific medical findings under
a theory of battery." Taylor, 723 A.2d 1035 (citations and emphasis omitted.).
"It is the conduct of the unauthorized procedure which constitutes the tort."
Id. (citing Moure v. Raeuchle, 604 A.2d 1003, 1008 (Pa. 1992). |
| [23] | ¶15 Appellants in this case proceeded under a battery theory. They
were entitled to fully develop their claim that Dr. Patterson was unauthorized
to perform the surgery on Mrs. Duttry due to his mischaracterization of
his experience. Accordingly, we find the trial court erred in prohibiting
the introduction of evidence regarding the accuracy of Dr. Patterson's responses
to Appellants' 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. *fn2 |
| [24] | ¶16 Remaining for our review is Appellants' claim that the trial
court abused its discretion by allowing Appellees' medical expert to render
opinions of the issue of causation, which exceeded the scope of his report. |
| [25] | In determining whether an expert's trial testimony falls within the fair
scope of his pre-trial report, the trial court must determine whether the
report provides sufficient notice of the expert's theory to enable the opposing
party to prepare a rebuttal witness. The trial court must also inquire whether
there has been surprise or prejudice to the party which is opposing the
proffered testimony of the expert, based upon any alleged deviation between
the matters disclosed during discovery, and the testimony of such expert
at trial. What constitutes surprise and prejudice, however, depends upon
the pre-trial particulars of each case. Foflygen v. Allegheny General Hospital,
723 A.2d 705, 709 (Pa. Super. 1999). |
| [26] | ¶17 We have examined Appellants' claims in view of the testimony
offered and the expert report and we find no error in the trial court's
ruling. "An expert may base his or her opinion on facts learned by listening
to testimony at trial." Id. at 710 (citations omitted). And, where an expert's
testimony is fair rebuttal to the other party's expert testimony, it cannot
be seen as unfairly surprising or prejudicial. Id. In this case, we find
the testimony to be within the broad scope of the expert's report and as
fair rebuttal, which could not be viewed as surprising or prejudicial to
Appellants. Thus, we find no merit to this allegation of error. |
| [27] | ¶18 For the forgoing reasons we vacate the judgment entered in this
matter and remand this case for a new trial in accordance with this opinion.
Jurisdiction relinquished. |
| [28] | ¶19 Judge Cirillo files a Dissenting statement. |
| [29] | DISSENTING STATEMENT BY CIRILLO, P.J.E. |
| [30] | ¶1 Because the effect of the majority's decision to vacate and remand
the instant case for a new trial impermissibly expands the informed consent
doctrine beyond its traditional and fundamental roots, I must respectfully
Dissent. |
| [31] | The goal of the informed consent doctrine is to provide the patient with
material information which is necessary to determine whether or not to proceed
with the surgical procedure. Sinclair v. Block, 534 Pa. 563, 570, 633 A.2d
1137, 1140 (1993). If this vital information regarding risks, complications,
and alternatives to surgery, which a reasonable person in the patient's
condition would have considered significant, is not disclosed to the patient,
the surgeon is held liable. See Gouse [v. Cassel, 532 Pa. 197, 202, 615
A.2d 331, 333 (1992)]. Rowinsky v. Sperling, 681 A.2d 785 (Pa. Super. 1996)
(Cirillo, P.J.E.). |
| [32] | ¶2 In Kaskie v. Wright, 589 A.2d 213 (Pa. Super. 1991), our court
was faced with the issue of whether the doctrine of informed consent can
be expanded to include information other than that which concerns medical
treatment by surgical procedure. Specifically, the plaintiffs, parents of
their deceased minor son, brought an action against the surgeon who operated
on their son. The basis of the plaintiffs' complaint centered around the
fact that they were not informed prior to surgery that the surgeon was both
an alcoholic and was unlicensed to practice medicine in the Commonwealth
of Pennsylvania. The Kaskie court refused to find that the plaintiffs made
out a case of lack of informed consent where the personal weaknesses and
professional credentials of the surgeon operating on their son were not
disclosed. Rather, the court stated: |
| [33] | "[T]here is no allegation here that appellants were uninformed about the
particular procedures their son underwent irrespective of the surgeon performing
them. We too refuse to expand the informed consent doctrine to include matters
not specifically germane to surgical or operative treatment." Id. at 216-17. |
| [34] | ¶3 The majority believes its decision today is consistent with the
ruling in Kaskie. Specifically, the majority states: |
| [35] | "The court [in Kaskie] considered this claim in view of the defendant's
statute of limitations defense but in so doing commented that it refused
to expand the doctrine of informed consent to absent information which consists
of facts personal to the treating physician. Our ruling does not differ
with these comments. It is not necessary in every case for a physician to
disclose matters such as experience, credentials or any personal problems.
However, where a patient seeks to discover this information by asking the
physician these direct questions, that patient deems such information important
in the very personal decision of which physician to choose, and a physician
who obtains "consent" by providing misinformation, does not have the true
consent of the patient." |
| [36] | ¶4 The trial court's holding carves out an exception to the informed
consent doctrine that effectively redefines a "reasonable patient" and,
as a result, dilutes the jury's function by virtue of the verdict being
vacated on such evidentiary grounds. See Southard v. Temple University Hospital,
731 A.2d 603 (Pa. Super. 1999) ("Generally, it is the fact finder who determines
whether information is material in an informed consent action."); Sagala
v. Tavares, 533 A.2d 165, 168 (Pa. Super. 1987) ("the determination of what
a reasonable patient would do or consider significant under certain circumstances
is for the jury to decide."). |
| [37] | ¶5 A physician's personal experience with regard to having performed
a certain operative procedure is certainly an important decision. However,
such a consideration is not "germane to surgical or operative treatment,"
Kaskie, supra at 217, and, therefore, is not properly classified as a basis
for an "informed consent" cases. See Southard, supra at 612 n.13 ("the personal
characteristics of a particular physician are only tangential to a surgical
procedure."). Rather, such claim is more properly rooted in a negligence
or intentional misrepresentation action. |
| [38] | ¶6 Accordingly, I would affirm the verdict in favor of Appellees
where such excluded information does not concern the risks, complications,
and alternatives to surgery, and, therefore, is not a factor in the determination
of whether a patient has given his or her informed consent for a surgical
procedure. |
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| Opinion Footnotes | |
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| [39] | *fn1 Cloma E.
Duttry and her husband, Alvin Duttry. |
| [40] | *fn2 Because of
our resolution of this issue, we need not reach the other issues presented
in support of Appellants' informed consent claim. |
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