Doe v. Dyer-Goode

• Decision Date: 29 November 1989
• Docket Number: A,DYER-GOOD
• Citation: 389 Pa.Super. 151,566 A.2d 889
• Parties: , 58 USLW 2391 John and Jane DOE, Appellants, v. Pamela T.ppellee. 157 PHILA. 1989
• Court: Pennsylvania Superior Court

Page 889

566 A.2d 889

389 Pa.Super. 151, 58 USLW 2391

John and Jane DOE, Appellants, v. Pamela T. DYER-GOODE, Appellee.

157 PHILA. 1989

Superior Court of Pennsylvania.

Argued Sept. 13, 1989.

Filed Nov. 29, 1989.

Julie Shapiro, Philadelphia, for appellants.

James L. Griffith, Philadelphia, for appellee.

Before OLSZEWSKI, DEL SOLE and JOHNSON, JJ.

DEL SOLE, Judge:

This is an appeal from an order granting Appellee's preliminary objections and dismissing Appellants' complaint with prejudice. Notwithstanding Appellants' plea to amend their complaint to claim damages, we conclude that the trial court's order must be affirmed because no viable cause of action is set forth in the Complaint.

In considering preliminary objections in the nature of a demurrer, the complaint must be examined to determine whether it sets forth a cause of action which, if proved, would entitle the party to the relief sought; if such is the case, the demurrer may not be sustained, but if the complaint fails to set forth a cause of action, preliminary objections in the nature of a demurrer are properly sustained. Rose v. Wissinger, 294 Pa.Super. 265, 439 A.2d 1193 (1982).

The Complaint at issue alleges that Appellants sought the services of Appellee-doctor in regard to a pre-marital blood test. Although Appellant, John Doe, did consent to have his blood withdrawn, he did not consent to an "AIDS test." Nevertheless, he was informed by the doctor that he had tested positive for AIDS. John Doe subsequently retested negative for exposure to the AIDS virus. Based upon this set of submitted facts the Appellants sought to recover by setting forth six separate causes of action.

In Count I a claim is made by John Doe for invasion of privacy. Appellants contend that John Doe's privacy was violated in two instances. The first occurred when the Appellee doctor "interfered with and violated" the plaintiff's bodily integrity by undertaking an examination of plaintiff's HIV status without plaintiff's knowledge or consent. It is also alleged that the doctor's creation and maintenance of records which contained these results constituted a further violation of the right to privacy.

"An action for invasion of privacy is comprised of four distinct torts: (1) intrusion upon seclusion, (2) appropriation of name or likeness, (3) publicity given to private life and (4) publicity placing the person in a false light." Harris by Harris v. Easton Pub. Co., 335 Pa.Super. 141, 483 A.2d 1377, 1383 (1984). As noted by the trial court, the Appellants' claims do not fall under the last two sections since it is not alleged that the test results were at any time publicized. Creating and maintaining a person's health records cannot be equated with publication. The second section which deals with those who appropriate a person's name or likeness is also inapplicable under the facts alleged. The remaining section which speaks to the unreasonable intrusion upon the seclusion of another is referred to in Section 652B of the Restatement (Second) of Torts which states:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

The "invasion of bodily integrity" cited by Appellants does not come within the ambit of this tort. Appellant, John Doe, consented to the extraction of his blood for testing. In Harris, Id., the court stated that "[t]he defendant is subject to liability under this section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs." Because John Doe relinquished his blood sample to the doctor, this sample was no longer held in "private seclusion" by Mr. Doe. Thus the fact that an unauthorized test was performed on this sample cannot establish a claim for invasion of privacy.

Appellants next contend that the facts of this case are sufficient, if proven, to constitute a battery based upon lack of informed consent.

In this Commonwealth individuals who are mentally and physically able to discuss their medical condition and who are not in an emergency situation, must give their informed consent as a prerequisite to a surgical operation by a physician. Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647, 649 (1971). To perform an operation without such informed consent is considered a technical assault, making the physician liable for any injuries resulting from the invasion, regardless of whether the treatment was negligently administered. Id. In determining whether a patient's consent was indeed "informed," one must consider whether the physician disclosed all the facts, risks and alternatives which a reasonable person would deem significant in making a decision to undergo a recommended procedure. Boyer v. Smith, 345 Pa.Super. 66, 497 A.2d 646, 648 n. 2 (1985).

In dismissing this count of the complaint the trial court held that a cause of action based upon lack of informed consent could not stand in this case because prior caselaw has only extended this doctrine to surgical or operative procedures. However, even if we were to conclude that the insertion of a needle under the skin falls into the category of a surgical or operative procedure, Appellants' claim cannot stand. There is no allegation in this case that John Doe was not informed of the risks associated with the procedure he was about to undergo--the withdrawal of a blood sample by extraction through a needle. The intrusive conduct was the prick of the skin by a needle. The blood sample which was withdrawn and later tested is simply a by-product of the medical procedure, much like a tissue sample taken from a patient in a biopsy procedure. Appellant gave...