805 A.2d 1232 (Pa. 2002), Valles v. Albert Einstein Medical Center

Citation:805 A.2d 1232, 569 Pa. 542
Party Name:Esmelinda VALLES, Administratrix of the Estate of Lope Valles, Deceased; Ruben Valles, Appellant v. ALBERT EINSTEIN MEDICAL CENTER; Leonard H. Cohen, M.D.; Archimede J. Silvestri, M.D.; Paul H. Steerman, M.D.; A. Silvestri Associates; Jay Morros, M.D.; Mark Kramer, M.D.; and Alan Wladis, M.D., Jay Morros, M.D., Cross-Appellant.
Case Date:August 28, 2002
Court:Supreme Court of Pennsylvania

Page 1232

805 A.2d 1232 (Pa. 2002)

569 Pa. 542

Esmelinda VALLES, Administratrix of the Estate of Lope Valles, Deceased; Ruben Valles, Appellant


ALBERT EINSTEIN MEDICAL CENTER; Leonard H. Cohen, M.D.; Archimede J. Silvestri, M.D.; Paul H. Steerman, M.D.; A. Silvestri Associates; Jay Morros, M.D.; Mark Kramer, M.D.; and Alan Wladis, M.D., Jay Morros, M.D., Cross-Appellant.

Supreme Court of Pennsylvania

August 28, 2002.

Argued Oct. 16, 2001.

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[569 Pa. 544] Jonathan Alan Briskin, Pamela E. Lewis, Bryn Mawr, for Esmelinda Valles.

[569 Pa. 545] Michael G. Sabo, Daniel N. German, Philadelphia, for Albert Einstein Medical Center.

Marion Henry Griffin, for Jay Morros, M.D.



Justice CAPPY.

We granted allocatur in order to address several issues regarding the scope of the informed consent doctrine. The Superior Court affirmed the entry of summary judgment in favor of Appellee Albert Einstein Medical Center ("AEMC") and Cross-Appellant Jay Morros, M.D. ("Morros"). For the reasons set forth herein, we affirm the order of the Superior Court.

We view the facts in the light most favorable to Appellant Esmelinda Valles, as the non-moving party. Murphy v. Duquesne Univ. of the Holy Ghost, 565 Pa. 571, 777 A.2d 418, 429 (2001). Appellant's claims arise from two separate medical procedures performed upon her brother, Lope Valles ("Valles"). 1 On November 14, 1992, Valles, a diabetic, was admitted to AEMC for a suspected abdominal aortic aneurysm 2 . An aortogram 3 was scheduled

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to study the location of the aneurysm. Muriel Gordon, M.D., a radiology resident at AEMC, obtained Valles' written consent to undergo the procedure scheduled to be performed by Steven Allen, M.D. ("Allen"), a radiologist at AEMC. While the written consent does not disclose the risk of renal damage or alternatives to the procedure, Allen indicated that it was his custom to inform a [569 Pa. 546] patient undergoing this procedure that the dye from the aortagram might damage the kidneys. After the procedure was performed on November 19, 1992, Valles' kidney functions worsened. Surgery to repair the aneurysm was postponed and Valles was discharged on November 24, 1992. On December 8, 1992, Valles was again admitted to AEMC suffering from renal failure. On December 17, 1992, the aneurysm was successfully repaired.

Given Valles' need for extended dialysis and prior complications with a short-term catheter, doctors recommended placement of a different catheter (the "Permacath"), which was suitable for longer periods of dialysis. Morros was scheduled to perform the surgical placement of the Permacath. On January 6, 1993, Alan Wladis, M.D., a surgical resident at AEMC, obtained Valles' written consent for the procedure. Wladis advised Valles of certain risks involved in the insertion of the Permacath, including bleeding, infection, collapsing of a lung and death. While the Permacath can be placed at several sites, including the jugular (neck) veins, the subclavian (chest) veins, or the femoral (groin) veins, Wladlis did not know at which site the catheter would be inserted and did not advise Valles as to where the catheter would be placed.

On January 7, 1993, Morros attempted to insert the Permacath into Valles' right subclavian vein. During the procedure, Valles suffered a hemopneumothorax 4 and cardiac arrest. Thereafter, Valles remained comatose and subsequently died on January 16, 1993.

Appellant filed a complaint against AEMC, Morros and others. The claim against AEMC was premised, inter alia, upon a theory of vicarious liability for the battery committed by Allen due to his failure to obtain informed consent prior to performing the aortogram. Appellant contends that Valles was not properly advised of the risks of the use of contrast dye and alternatives to the aortogram. In support of this claim, Appellant's expert opined that there were alternatives to the [569 Pa. 547] aortogram; that the risks to Valles of contrast-induced renal failure were significant (10-20%) and that Valles' renal failure was caused by the aortogram.

The claim against Morros was also based on a lack of informed consent to the catheter procedure Morros performed. Appellant claims that Valles was not advised of the alternative placement sites for the Permacath and risks relative to those sites. Appellant's expert opined that use of the alternative sites would have lessened or eliminated the risks of the complication that developed during the attempted insertion of the Permacath. The expert further indicated that the attempted placement of the catheter in the right subclavian vein resulted in the complications that led to Valles' death.

AEMC moved for summary judgment. Morros filed a motion in limine in which he sought to preclude Appellant from pursuing any claims relating to informed consent.

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The trial court granted AEMC's motion but denied Morros' motion, leaving Morros as the only remaining defendant. 5 Prior to jury selection, Morros renewed his motion, which a different trial judge granted and thereafter dismissed the claim. 6

On appeal, a panel of the Superior Court unanimously affirmed the trial courts' orders. Following reargument, a divided en banc panel affirmed. Valles v. Albert Einstein Medical Center et al., 758 A.2d 1238 (Pa.Super.2000). With regard to the aortogram performed by Allen, a majority of the en banc panel concluded that AEMC could not be held vicariously liable for Allen's failure to obtain informed consent. The court determined that nothing in the record indicated that AEMC exercised control over the manner in which Allen was to perform radiology work. The court relied on Kelly v. Methodist Hospital, 444 Pa.Super. 427, 664 A.2d 148 (1995), wherein the Superior Court determined that [569 Pa. 548] a hospital could not be held liable under a theory of corporate negligence based on its failure to promulgate policies and procedures relating to informed consent. The court in Kelly reasoned that the surgeon was in the best position to advise each patient of such risks, and it would be unworkable to have the hospital draft the forms imparting the substantive information relative to each procedure. Id. at 151. Similarly, in this case, the Superior Court reasoned that oversight of a highly specialized procedure such as an aortogram would improperly inject the hospital into the physician-patient relationship and would be unworkable.

As to the claim against Morros based on the placement of the Permacath, the court determined that "informed consent applied to the method or manner of surgery and the risks associated therewith." 758 A.2d at 1246. The court further concluded that "a physician is only required to inform the patient of those medically recognized or medically viable alternate methods of implanting a device." Id. at 1246-47. The court recognized that there are typically six alternative sites for placement of the catheter but after reviewing the relevant testimony, concluded that none of these alternative sites were viable given Valles' condition. The court therefore affirmed the dismissal of the claim against Morros.

Judge Del Sole filed a dissenting opinion, joined by Judges McEwen and Todd. Judge Del Sole asserted that AEMC could be held vicariously liable as Allen was its employee. As to the claim against Morros, Judge Del Sole agreed with the majority that the informed consent doctrine encompasses the method and manner of surgery, but he determined that there was a disputed issue of fact regarding the alternate viable sites. Judge Musmanno filed a concurring and dissenting opinion. He agreed with the majority that the hospital could not be held vicariously liable, but joined the dissenting opinion of Judge Del Sole with respect to the informed consent claim against Morros.

This court granted allocatur to address issues raised by Appellant Valles and Cross-Appellant Morros. Appellant [569 Pa. 549] raises the following issues: (1) whether a hospital can be held vicariously liable as a

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matter of law for its employee-physician's failure to obtain informed consent; (2) whether, in an informed consent case, there exists a disputed issue of material fact precluding a grant of summary judgment in the defendant physician's favor when plaintiff's expert disagrees with the defendant physician regarding the medical viability of a surgical approach. In his cross-appeal, Morros asks us to resolve whether the Superior Court erred in determining that the doctrine of informed consent requires surgeons to discuss treatment techniques in addition to treatment alternatives. 7

We first address Appellant's contention that AEMC should be held vicariously liable for Allen's failure to obtain Valles' informed consent prior to performing the aortogram. Appellant asserts under principles of respondeat superior, a hospital may be vicariously liable for its employee-physician's intentional torts, including the failure to obtain informed consent. Because a hospital has an obligation to oversee all persons who practice medicine within its walls, Appellant maintains that the hospital as an employer and health care provider in its own right maintains a right of control in the relationship sufficient to justify the imposition of liability. 8

Appellee responds that historically in Pennsylvania, the duty to obtain informed consent rests only with the physician [569 Pa. 550] performing the surgical procedure, except in limited circumstances not present here. Thus, a medical facility such as AEMC cannot be held vicariously liable for the physician's failure to perform this non-delegable duty.

Although this is an issue of first impression for this court...

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