Boutte v. Seitchik

• Decision Date: 11 September 1998
• Citation: 719 A.2d 319
• Parties: Carolyn BOUTTE, Appellee, v. Murray SEITCHIK, M.D., Dr. Thomas Gain, Hahnemann Hospital, and Mentor Corporation. Appeal of Murray SEITCHIK, M.D.
• Court: Pennsylvania Superior Court

719 A.2d 319

Carolyn BOUTTE, Appellee, v. Murray SEITCHIK, M.D., Dr. Thomas Gain, Hahnemann Hospital, and Mentor Corporation.

Appeal of Murray SEITCHIK, M.D.

Superior Court of Pennsylvania.

Argued July 14, 1998.

Filed September 11, 1998.

Reargument Denied November 10, 1998.

Robert G. Yosua, Blue Bell, for appellant.

Neil E. Jokelson, Philadelphia, for Carolyn Boutte, appellee.

Before KELLY and JOYCE, JJ., and CERCONE, President Judge Emeritus. JOYCE, Judge:

This is an appeal from the final judgment entered against Appellant, Dr. Murray Seitchik, in the tort action for lack of informed consent brought by Appellee, Carolyn Boutte.¹ For the reasons set forth below, we affirm. Before addressing the merits of Appellant's claims, we will recount the pertinent facts giving rise to this appeal.

Appellee suffered from chronic and severe mastodynia for which she received conservative treatment. Unable to obtain relief, Appellee consulted Dr. Thomas Gain, who recommended a bilateral mastectomy followed by reconstructive surgery to alleviate the pain. Dr. Gain referred Appellee to Appellant, Dr. Seitchik, who was to perform the reconstructive surgery. After consulting with these physicians, Appellee agreed to have the surgery performed as she believed that the reconstruction would enable her to have a normal appearance.

Surgery was scheduled for February 17, 1988. Just prior to surgery, an associate of Dr. Gain's presented Appellee with a consent form indicating that she authorized Dr. Gain and or his associates to perform a bilateral subcutaneous mastectomy with implants. The form further identified the risks of surgery as anesthesia, bleeding and infection.

Dr. Gain performed the mastectomy. Immediately thereafter, Dr. Seitchik performed the reconstructive surgery during which he implanted prostheses manufactured by Mentor Corporation (Mentor).² Following the surgery, Appellee received a product information that identified certain risks of surgery which included, inter alia, the risk of capsular contracture, infection, calcification, intolerance and the risk that the implants would leak, rupture or bleed. Unfortunately, Appellee continued to experience pain following the surgery.³

In June of 1990, Appellee commenced suit against Dr. Gain, Mentor, Hahnemann Hospital and Appellant. See Boutte v. Seitchik, docketed at June Term, 1990, No. 6387. The action against Appellant was dismissed without prejudice. As a result, Appellee commenced a new action, docketed at April Term, 1991, No. 352 against Appellant. These actions were later consolidated for trial.

Because Appellee failed to comply with the defendants' discovery requests, she was precluded from presenting expert testimony at trial. All of the defendants filed a motion for summary judgment. Dr. Gain's and Hahnemann's motions were granted; Dr. Seitchik's motion was denied. A jury trial was held in June of 1996, following which the jury awarded Appellee the sum of $750,000.00 in damages.⁴ Appellant timely filed post-verdict motions which were denied by the trial court. Appellee moved for the imposition of delay damages. The trial court granted Appellee's motion and molded the verdict to include $232,942.00 in delay damages. The verdict was thereafter reduced to judgment. Appellant appealed⁵ and presents the following issues for review: (1) whether the trial court erred in refusing to grant judgment notwithstanding the verdict; (2) whether the trial court erred in instructing the jury that Appellant is liable for scarring resulting from the mastectomy; and (3) whether the verdict is against the weight of the evidence.

Appellant initially challenges the trial court's refusal to enter judgment non obstante veredicto (judgment n.o.v.).⁶

In reviewing a motion for judgment n.o.v., the evidence must be considered in the light most favorable to the verdict winner, and he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor. Moreover, a judgment n.o.v. should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. Further a judge's appraisement of evidence is not to be based on how he would have voted had be been a member of the jury, but on the facts as they come through the sieve of the jury's deliberations.

There are two bases upon which a judgment n.o.v. can be entered: one, the movant is entitled to judgment as a matter of law and/or two, the evidence was such that no two reasonable minds could disagree that the outcome should have been rendered in favor of the movant. With the first, the court reviews the record and concludes that even with all factual inferences decided adverse to the movant the law nonetheless requires a verdict in his favor, whereas with the second the court reviews the evidentiary record and concludes that the evidence was such that a verdict for the movant was beyond peradventure.

Moure v. Raeuchle, 529 Pa. 394, 402, 604 A.2d 1003, 1007 (1992). Accord Nogowski v. Alemo-Hammad, 456 Pa.Super. 750, 758-764, 691 A.2d 950, 955-957 (1997) (en banc)

, appeal denied, 550 Pa. 684, 704 A.2d 638 (1997). In making the determination of whether judgment notwithstanding the verdict is appropriate, our scope of review is plenary as it is with any review of questions of law. Davis v. Berwind Corp., 547 Pa. 260, 266, 690 A.2d 186, 189 (1997).

Appellant contends that judgment n.o.v. was proper because Appellee failed to present sufficient expert testimony: (1) as to the probability of the risks involved; (2) that the risks actually occurred; and (3) that her injuries were caused by the reconstructive surgery. As these allegations are related, they will be addressed together. With respect to these matters, our Supreme Court has observed:

Where a patient is mentally and physically able to consult about his condition, in the absence of an emergency, the consent of the patient is a prerequisite to a surgical operation by his physician and an operation without the patient's consent is a technical assault[....] [T]he burden is on [the] plaintiff to prove that the operation performed, or substantially that operation, was not authorized by him ....

Since the agreement between the physician and his patient is contractual in nature, for there to be a valid consent it must be clear that both parties understand the nature of the undertaking and what the possible as well as expected results might be. It will be no defense for a surgeon to prove that the patient had given his consent, if the consent was not given with a true understanding of the nature of the operation to be performed, the seriousness of it, the organs of the body involved, the disease or incapacity sought to be cured, and the possible results. ... A physician or surgeon need not disclose all known information; however, the physician or surgeon 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.

Gouse v. Cassel, 532 Pa. 197, 202-203, 615 A.2d 331, 333-334 (1992) (citations, quotation marks and emphasis omitted).

In order for the jury or fact-finder to determine the materiality of a risk, the plaintiff must supply expert information as to the nature of the harm attendant to the procedure and the probability of that harm occurring. Moure, 529 Pa. at 405, 604 A.2d at 1008; Nogowski, 456 Pa.Super. at 762-764, 691 A.2d at 957. However, a plaintiff need not prove that a causal relationship exists between the physician's or surgeon's failure to disclose information and the patient's consent to undergo surgery. Gouse, 532 Pa. at 202, 615 A.2d at 333. This Court has also recognized that a plaintiff need not prove by expert testimony that the surgery caused an injury. Rowinsky v. Sperling, 452 Pa.Super. 215, 223-225, 681 A.2d 785, 790 (1996), appeal denied, 547 Pa. 738, 690 A.2d 237 (1997). Recovery on the theory of informed consent is permitted regardless of causation because it is the conduct of the unauthorized procedure that constitutes the tort. Moure, 529 Pa. at 405, 604 A.2d at 1008. We shall evaluate Appellant's arguments and the decision of the trial court with the above principles in mind.

At trial, Appellee relied upon the expert testimony of Appellant, whom she called as on cross-examination. Appellant testified that all of the information contained on the product form supplied by Mentor was relevant and important for the patient to know in order to provide informed consent. N.T. 6/4/96 at 103. The risks identified on the form were capsular contracture, leakage, rupture, gel bleed and other, which included intolerance to the implant, infection, calcification and the formation of minor ridges or creases. Id. at 108-111. However, Appellant qualified his statement by noting that capsular contracture, leakage and rupture constituted the "important information" which Appellee needed to know. Id. at 101. He further indicated that the gel bleed and calcification either were not a medically significant event or were unlikely to occur, such that Appellee did not need to be apprised of these risks. Id. at 165-166 and 184-186. Appellant further testified that scarring would inevitably result from the mastectomy. Id. at 80, 83-84, 140 and 148.

Appellant's testimony unequivocally demonstrates that the above risks constituted "important information" which the patient should be given in order to make an informed choice regarding the implants. This testimony, in essence, conceded that at least three of the risks were material to Appellee's decision to undergo the reconstructive surgery. Under these circumstances, it was unnecessary for Appellee to present more detailed evidence quantifying the probability of the occurrence of the risks.

Regarding Appellant's assertion that expert testimony was needed to establish a causal...