Bowers v. Garfield

• Decision Date: 17 September 1974
• Docket Number: Civ. A. No. 72-264.
• Citation: 382 F. Supp. 503
• Parties: Mary BOWERS and Robert Bowers husband and wife v. Samuel GARFIELD, M.D.
• Court: U.S. District Court — Eastern District of Pennsylvania

382 F. Supp. 503

Mary BOWERS and Robert Bowers husband and wife v. Samuel GARFIELD, M.D.

Civ. A. No. 72-264.

United States District Court, E. D. Pennsylvania.

September 17, 1974.

William C. Hewson, Philadelphia, Pa., for plaintiffs.

Lowell A. Reed, Jr., Philadelphia, Pa., for defendant.

OPINION

DITTER, District Judge.

In this case, the jury found for the doctor in a medical malpractice suit brought on the theory that a hysterectomy had been performed without obtaining the patient's informed consent. Although post-trial motions were not filed timely, plaintiffs have taken an appeal. I am preparing this opinion so that the Court of Appeals may be advised of my views on the issues involved: causation standards under Pennsylvania law, the use of medical texts in cross-examination, and the receipt of a pre-trial memorandum in evidence to impeach an expert witness.

Plaintiff, Mrs. Mary Bowers, first consulted defendant, Samuel Garfield, M.D., on December 5, 1969. At that time she complained of recurrent vaginal bleeding since the delivery of her fourth and last child.¹ Following an evaluation of Mrs. Bowers, which included a pelvic examination, Dr. Garfield recommended that she undergo a hysterectomy, or surgical removal of her uterus.

On February 8, 1970, Mrs. Bowers was admitted as a patient to Frankford Hospital in Philadelphia, where on the following day Dr. Garfield removed her uterus, left fallopian tube, and left ovary. Mrs. Bowers remained in the hospital until February 26, 1970, during which time she developed abdominal distention, jaundice, fever, anemia attributed to hemorrhage into her abdominal cavity, and a vesicovaginal fistula, i. e., an abnormal opening between her bladder and vagina. The vesicovaginal fistula persisted after plaintiff's discharge from the hospital.

Mrs. Bowers was examined by a urologist, and on August 24, 1970, she was admitted to another hospital and the fistula was successfully repaired by surgery. Mrs. Bowers and her husband then brought the present action against Dr. Garfield for malpractice.² By appropriate answers to written interrogatories the jury concluded that:

(1) Dr. Garfield was not negligent in recommending and performing a hysterectomy on Mrs. Bowers;

(2) Dr. Garfield had not advised Mrs. Bowers of the risk of a vesicovaginal fistula;

(3) A reasonable woman, had she been advised of the risk of a vesicovaginal fistula, nevertheless would have undergone a hysterectomy; and (4) Dr. Garfield had adequately explained to Mrs. Bowers alternative methods of treatment to a hysterectomy.

On the basis of these findings, judgment was entered in favor of the defendant and against the plaintiffs. Plaintiffs contend that three evidentiary rulings, the submission of "Question Number 3", and the trial court's charge to the jury thereon constitute reversible error.

I. Use of the Objective Standard

The jury determined that even though Dr. Garfield had not informed Mrs. Bowers of the risk of a vesicovaginal fistula, a reasonable woman, aware of such a risk, would have proceeded with the operation nevertheless. Plaintiffs contend that the submission to the jury of the objective standard of causation, i. e., the standard of a "reasonable woman," was error. In plaintiffs' view, if considered at all,³ the causation question should have been decided on a subjective basis, that is, would Mrs. Bowers herself have undergone the hysterectomy had Dr. Garfield advised her of the risk of a vesicovaginal fistula.

In the absence of a Pennsylvania decision on point, my task was to predict what the Supreme Court of Pennsylvania would hold on this question. Costello v. Schmidlin, 404 F.2d 87 (3d Cir. 1968); Davis v. Smith, 126 F.Supp. 497 (E.D.Pa.1954), affirmed, 253 F.2d 286 (3rd Cir. 1958). The leading Pennsylvania case dealing with informed consent is Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966), in which the Pennsylvania Supreme Court announced a broad but workable rule:

(1) where a physician or surgeon can ascertain in advance of an operation alternative situations and no immediate emergency exists, a patient should be told of the alternative possibilities and given a chance to decide what should be done before the doctor proceeds with the operation;

(2) the doctor is under a duty to advise the patient adequately on the dangers to be anticipated as a result of the operation and not to minimize them;

(3) the plaintiff has the burden to prove the operation performed had not been authorized.⁴

Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647 (1971), allocatur denied, dealt with what constitutes an informed consent. There the Superior Court stated:

A more equitable formulation would be: whether the physician disclosed all those facts, risks and alternatives that a reasonable man emphasis added in the situation which the physician knew or should have known to be the plaintiff's would deem significant in making a decision to undergo the recommended treatment. This gives maximum effect to the patient's right to be the arbiter of the medical treatment he will undergo without either requiring the physician to be a mindreader into the patient's most subjective thoughts or requiring that he disclose every risk lest he be liable for battery. The physician is bound to disclose only those risks which a reasonable man emphasis added would consider material to his decision whether or not to undergo treatment. This standard creates no unreasonable burden for the physician.

220 Pa.Super. at 267-268, 286 A.2d at 650.

Following the logic of Cooper, it is my opinion that Pennsylvania courts, as several other courts already have done, would adopt the objective standard on the issue of causation.

The preeminent federal case on point is Canterbury v. Spence, 150 U.S.App. D.C. 263, 464 F.2d 772 (1972), cert. denied 409 U.S. 1064, 93 S.Ct. 560, 34 L. Ed.2d 518. Dealing squarely with the issue of causation and the standard to be applied in its determination, the court stated:

As in malpractice actions generally, there must be a causal relationship between the physician's failure to adequately divulge and damage to the patient.

A causal connection exists when, but only when, disclosure of significant risks incidental to treatment would have resulted in a decision against it. The patient obviously has no complaint if he would have submitted to the therapy notwithstanding awareness that the risk was one of its perils . . . The more difficult question is whether the factual issue on causality calls for an objective or a subjective determination.

* * * * * *

We think a technique which ties the factual conclusion on causation simply to the assessment of the patient's credibility is unsatisfactory . . . When causality is explored at a post-injury trial with a professedly uninformed patient, the question whether he actually would have turned the treatment down if he had known the risks is purely hypothetical: `Viewed from the point at which he had to decide, would the patient have decided differently had he known something he did not know?' And the answer which the patient supplies hardly represents more than a guess, perhaps tinged by the circumstances that the uncommunicated hazard has in fact materialized.

In our view, this method of dealing with the issue on sic causation comes in second-best. It places the physician in jeopardy of the patient's hindsight and bitterness. It places the factfinder in the position of deciding whether a speculative answer to a hypothetical question is to be credited. It calls for a subjective determination solely on testimony of a patient-witness shadowed by the occurrence of the undisclosed risk.

Better it is, we believe, to resolve the causality issue on an objective basis: in terms of what a prudent person in the patient's position would have decided if suitably informed of all perils bearing significance. If adequate disclosure could reasonably be expected to have caused that person to decline the treatment because of the revelation of the kind of risk or danger that resulted in harm, causation is shown, but otherwise not. footnotes omitted and emphasis added. 464 F.2d at 790-791.

Accord: Fogal v. The Genessee Hospital, 41 A.D.2d 468, 344 N.Y.S.2d 552 (1973); Cobbs v. Grant, 8 Cal.3d 299, 502 P.2d 1, 104 Cal.Rptr. 505 (1972).⁵

Moreover, in cases where a patient has died as the result of an unforewarned consequence of a medical treatment, application of the subjective standard would bar recovery in all but a handfull of cases since the injured person's testimony, essential to a decision on a subjective basis, would be unavailable. Having reexamined Cooper v. Roberts, Canterbury v. Spence, and the other cases cited, I am persuaded that I correctly instructed the jury to apply the objective "reasonable woman" test.

II. Use of Learned Treatise to Impeach Defendant on Cross-Examination

Plaintiffs contend that I erred in sustaining defendant's objection to the attempted use by plaintiffs' counsel, on cross-examination of the defendant, of a learned treatise to impeach the defendant's credibility. Specifically, Dr. William C. Hewson, plaintiffs' attorney, confronted Dr. Garfield with a medical text which the defendant had recognized as authoritative in his deposition. Dr. Hewson instructed the defendant to read a designated paragraph to himself, and then asked him whether he agreed with it. When Dr. Garfield expressed some disagreement with the passage, Dr. Hewson asked him to read it aloud. Defense counsel thereupon objected and the following interchange between plaintiffs' counsel and me took place:

"Dr. Hewson: If he agrees as to a reputable authoritative textbook it is perfectly proper to impeach him from . . .

"The Court: No, he doesn't. It may be a reputable textbook in 99 out of 100 things that it says, but that 100th thing he may not agree with what it says.

"Dr. Hewson: I think that is what the whole purpose of the textbook is (sic) used for impeachment

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