Festa v. Greenberg

• Decision Date: 30 June 1986
• Citation: 511 A.2d 1371,354 Pa.Super. 346
• Parties: Jane and Marcello FESTA, v. Steven J. GREENBERG, M.D., Appellant.
• Court: Pennsylvania Superior Court

Page 1371

511 A.2d 1371

354 Pa.Super. 346

Jane and Marcello FESTA, v. Steven J. GREENBERG, M.D., Appellant.

Superior Court of Pennsylvania.

Argued April 8, 1986.

Filed June 30, 1986.

Brian M. Peters, Philadelphia, for appellant.

Michael Bloom, Philadelphia, for appellees.

Before CIRILLO, President Judge, and ROWLEY and WIEAND, JJ.

CIRILLO, President Judge.

Appellees initiated this action against appellant-physician asserting that the surgery he performed upon appellee-wife was done in a negligent manner and without proper consent. The trial court originally entered a compulsory nonsuit in appellant-physician's favor because appellees failed to introduce expert testimony to support either of their claims. Subsequently, the trial court granted appellees' motions to remove nonsuit and for a new trial stating that expert testimony is not required to establish a physician's duty to disclose information in informed consent cases. This timely appeal followed. ¹

Appellant, Dr. Steven Greenberg, contends that the trial court erred in removing the compulsory nonsuit in an action in informed consent when: 1) appellees failed to introduce expert medical evidence identifying the actual risks associated with tubal ligation by cauterization; and 2) appellees failed to introduce expert medical evidence demonstrating that the sterilization procedure was the proximate cause of her infection, her pregnancy and the lump in her scar area. We reverse on the basis of the first issue raised by appellant; therefore, we will not address appellant's remaining issue.

I

In March 1979, shortly after the birth of her third child, appellee, Jane Festa, contacted appellant regarding a possible sterilization operation. During this consultation, appellant discussed a number of different methods of sterilization with appellees: hysterectomy, tubal ligation, cut and tie procedure, and a vasectomy for appellee-husband. Mrs. Festa testified that she knew what a hysterectomy and vasectomy involved and that Dr. Greenberg explained the remaining procedures. According to Mrs. Festa's testimony, Dr. Greenberg described the tubal ligation procedure as a burning process: the tube is burnt shut. The final alternative discussed was the cut and tie procedure. Dr. Greenberg informed Mrs. Festa that the instrument used to cut the tubes gave off sparks which in some instances burned vital organs. Mrs. Festa testified that this was the procedure she originally wanted; however, Dr. Greenberg advised her that the tubal ligation method was two times safer and involved a shorter hospital stay than the cut and tie procedure.

Additionally, Dr. Greenberg apprised Mrs. Festa of the failure rate for the tubal ligation, one out of seven hundred, and the cut and tie procedures, one in three hundred to three hundred and fifty. Dr. Greenberg also reported to appellees that no pregnancy resulted in any of the cases in which he had performed tubal ligations. He further reported that in those rare situations when a woman becomes pregnant after a tubal ligation the pregnancy occurs a few years after the operation because the tubes sometimes re-open.

After this discussion, Dr. Greenberg performed a routine gynecological examination upon Mrs. Festa. Upon completion of this exam, Dr. Greenberg provided Mrs. Festa with a consent form to sign. Mrs. Festa testified that she only read the first paragraph and then just glanced at the remaining paragraphs for a minute or two before signing the form.

Approximately two weeks after this consultation, Mrs. Festa entered Rolling Hill Hospital to undergo sterilization by tubal ligation. The week following the operation Mrs. Festa returned to Dr. Greenberg's office where one of his associates examined her and discovered blood clots in her incision. The incision was drained and Mrs. Festa was given antibiotics to ward off infection. Six days later, Mrs. Festa entered Rolling Hill Hospital's emergency room; at this time, her incision was again drained and a rubber tube inserted and sewn into place to ease the draining problem.

Mrs. Festa testified that it took her a full month to recover from the operation despite Dr. Greenberg's assurances that she would be fine after a few days. Five months after the sterilization procedure, Mrs. Festa discovered that she was again pregnant. Additionally, she claimed that a lump the size of a nickel protruded about one-half inch at the site of her incision. Mrs. Festa stated that she still has the lump below her navel as a result of the operation.

II

The central issue with which we are presented in this appeal is whether expert medical testimony is required to establish the existence of medically technical risks, the feasibility of proposed alternative treatments and the effect of disclosure upon the patient under the circumstances. Resolution of this question necessitates a discussion of the doctrine of informed consent.

The underlying premise of this doctrine is that a physician is precluded from administering to or operating upon a mentally competent adult patient in non-emergency situations without his consent. "Every human being of adult years and sound mind has a right to determine what shall be done with his own body." Schloendorff v. Society of N.Y. Hospital, 211 N.Y. 125, 105 N.E. 92, 93 (1914) (Judge Cardozo). See also Dooley, 2 Modern Tort Law: Liability and Litigation, § 34:49 et seq. (19); Louisell and Williams, 2 Medical Malpractice: Physicians and Related Professions, §§ 22:01 et seq. (1985). In order for the consent to be valid, the physician is duty bound to apprise the patient "of such important matters as the nature of the therapy, the seriousness of the situation, the disease and the organs involved and the potential results of the treatment." Salis v. United States, 522 F.Supp. 989, 997 (M.D.Pa.1981) (summarizing Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966).

Imposition of this duty of full disclosure upon the physician is predicated upon the sentiment "that unlike the physician, the patient is untrained in medical science, and therefore depends completely on the trust and skill of his physician for the information on which he makes his decision." Sard v. Hardy, 281 Md. 432, 379 A.2d 1014, 1020 (1977) (citations omitted). While all jurisdictions agree that a physician is indeed obligated to fulfill this duty, there is significant debate over the scope of the physician's duty and whether expert medical testimony is required to prove the standard of care. The dispute regarding the scope of the physician's duty to disclose focuses on whether this duty should be judged by the reasonable physician/professional standard or the prudent patient standard.

Under the professional standard, the physician's duty to disclose in a particular situation is restricted to the disclosure which the reasonable medical practitioner in the community would have made in a similar situation. The determinative factor is the standard of disclosure to which the medical community adheres for the recommended procedure. Fuller v. Starnes, 268 Ark. 476, 597 S.W.2d 88 (1980) (physician's duty to disclose risks is measured by the customary practice of physicians in the community); Moore v. Underwood Memorial Hospital, 147 N.J.Super. 252, 371 A.2d 105 (1977) (plaintiff has the burden of proving what a reasonable medical practitioner of the same school and same or similar community, under the same or similar circumstances, would have disclosed to his patient); Coleman v. Garrison, 327 A.2d 757 (Del.Super.1974) (plaintiff must establish the custom of the medical community regarding the duty to warn of risks in an informed consent action).

Those jurisdictions which adopted this professional standard of care have advanced a number of arguments to justify their choice:

(1) Only a physician can effectively estimate the psychological and physiological impacts that risk would have on a particular patient. In determining the extent of disclosure, the physician must consider the state of the patient's health, and whether the risks involved are mere remote possibilities or real hazards which occur with appreciable regularity.

(2) A general standard of care, as required under the prudent patient rule, would require a doctor to waste unnecessary time in reviewing with the patient every possible risk, thereby interfering with the flexibility a physician needs in deciding what form of treatment is best for the patient.

Louisell and Williams, 2 Medical Malpractice: Physicians and Related Professions, § 22:06 (footnotes omitted) (emphasis provided).

Champions of the professional standard contend that while the "prudent patient" standard may allow some plaintiffs to recover more easily, it does so at the cost of good medical practice. They assert that a physician's primary duty during consultation is the advancement of the patient's best interests; a physician should not have to concern himself with the possibility of a lay jury, untrained in medicine, subsequently deciding that he acted improperly. Woolley v. Henderson, 418 A.2d 1123 (Me 1980); Ross v. Hodges, 234 So.2d 905 (Miss.1970).

Until the early 1970's, the vast majority of those jurisdictions which recognized the doctrine of informed consent abided by this professional standard. However, in recent years, a growing number of jurisdictions recognized "that protection of the patient's fundamental right of physical self-determination--the very cornerstone of the informed consent doctrine--mandates that the scope of a physician's duty to disclose risks and alternatives be governed by the patient's informational needs." Sard v. Hardy, 281 Md. 432, 379 A.2d 1014, 1021 (1977). Accord, Canterbury v. Spence, 464 F.2d 772 (D.C.Cir.1972); Harnish v. Children's Hospital Medical Center, 387 Mass. 152, 439 N.E.2d 240 (1982); Cross v. Trapp, 294 S.E.2d 446 (W.Va.1982); Revord v. Russell, 401 N.E.2d 763 (Ind.App.1980); Miller v. Kennedy, 11 Wash.App. 272, 522...