Morgan v. McPhail

• Decision Date: 15 March 1996
• Citation: 449 Pa.Super. 71,672 A.2d 1359
• Parties: Barbara MORGAN and Joseph Morgan, Her Husband, Appellants, v. John A. McPHAIL, M.D.
• Court: Pennsylvania Superior Court

Page 1359

672 A.2d 1359

449 Pa.Super. 71

Barbara MORGAN and Joseph Morgan, Her Husband, Appellants, v. John A. McPHAIL, M.D.

Superior Court of Pennsylvania.

Argued Dec. 14, 1995.

Filed March 15, 1996.

Michael Pribanic, White Oak, for appellant.

John A. Bass, Pittsburgh, for appellee.

Before CAVANAUGH, JOHNSON and CERCONE, JJ.

JOHNSON, Judge:

In this appeal, we are asked to consider whether Pennsylvania law recognizes a cause of action where a doctor failed to obtain his patient's informed consent to the administration of an intercostal nerve block. Because we find that we are bound by prior case law which limits actions for informed consent to situations involving surgical or operative procedures, we are constrained to affirm the trial court order that granted Dr. John A. McPhail's preliminary objections to those paragraphs of the complaint which involved informed consent. Nonetheless, we are compelled to express our reservations regarding this result.

In October 1988, Barbara Morgan fractured two of her ribs. In December 1988, due to persistent lingering pain in and around her ribs, she sought treatment from John A. McPhail, M.D. Dr. McPhail attempted to relieve Barbara's pain by performing an intercostal nerve block, which involves injecting anesthesia into the area around the ribs. Following that procedure, Barbara became very weak and short of breath and telephoned Dr. McPhail to inform him of her condition. Thereafter, she reported to the hospital for emergency medical care, where it was determined that she had sustained a collapsed right lung as a result of the intercostal nerve block. Barbara and her husband, Joseph, then filed suit against Dr. McPhail, alleging, among other things, that he had failed to obtain Barbara's informed consent prior to performing that procedure. Dr. McPhail filed preliminary objections in the nature of a demurrer as to those paragraphs of the Morgans' complaint which concerned the doctrine of informed consent, arguing that informed consent is necessary only for surgical or operative procedures. The trial court agreed and, accordingly, granted a demurrer. The Morgans filed a motion for reconsideration, which was denied. The Morgans then filed a petition for permission to appeal pursuant to 42 Pa.C.S. § 702(b), which was granted. See Order of Court, dated May 1, 1991. This appeal followed.

On appeal, the Morgans assert that the trial court erred in granting Dr. McPhail's preliminary objections. Specifically, they contend that the trial court erred in determining that the doctrine of informed consent does not apply to the facts of this case.

Our scope of review in an appeal from an order granting preliminary objections in the nature of a demurrer is plenary. Love v. Cramer, 414 Pa.Super. 231, 606 A.2d 1175, appeal denied, 533 Pa. 634, 621 A.2d 580 (1992). Moreover,

[a]ny doubt as to whether a demurrer should be sustained is to be resolved against the moving party. Furthermore, "we accept as true all well-pleaded material facts in the complaint, as well as all inferences reasonably deducible therefrom." Preliminary objections should be sustained only when it appears with certainty that, upon the facts averred, the law will not permit recovery by the plaintiff.

Id. at 233, 606 A.2d at 1177, quoting Baker v. Magnetic Analysis Corp., 347 Pa.Super. 188, 192, 500 A.2d 470, 472 (1985).

The doctrine of informed consent "grants the competent patient the right to medical self-determination regarding an operative or surgical procedure." Sinclair by Sinclair v. Block, 534 Pa. 563, 568, 633 A.2d 1137, 1139 (1993), citing Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966). Our supreme court has held that

a physician or surgeon who fails to advise a patient of material facts, risks, complications and alternatives to surgery which a reasonable [person] in the patient's position would have considered significant in deciding whether to have the operation is liable for damages which ensue, and the patient 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 v. Cassel, 532 Pa. 197, 202, 615 A.2d 331, 333 (1992). "The basis of an action for a lack of informed consent is that when a physician touches a patient a technical battery occurs, unless that touching is done with the patient's consent." Wu v. Spence, 413 Pa.Super. 352, 355-56, 605 A.2d 395, 397 (1992), appeal dismissed, 534 Pa. 309, 632 A.2d 1294 (1993), citing Gray, supra. The goal of this doctrine "is to provide the patient with material information necessary to determine whether to proceed with the surgical or operative procedure or to remain in the present condition." Sinclair, supra, at 570, 633 A.2d at 1140.

To determine whether the trial court erred in concluding that the doctrine of informed consent does not apply to an intercostal nerve block, it is necessary to understand the manner in which the law in this area has developed. In Cooper v. Roberts, 220 Pa.Super. 260, 263, 286 A.2d 647, 648 (1971), appeal denied, a patient underwent a gastroscopic examination, during which doctors lowered a fiberscope into her stomach "to photograph that area for purposes of diagnosis and treatment." Doctors never informed the patient of any collateral risks associated with the procedure. Rather, they assured her that the examination was "a relatively simple diagnostic procedure and that (there) should not be any trouble with it." Id. at 263, 286 A.2d at 648. However, during the examination, the patient's stomach was punctured, and she required emergency surgery to seal the perforation. The patient filed suit alleging negligence and lack of informed consent. At trial, the jury rendered a verdict in favor of the doctors. On appeal, this Court was asked to determine the proper standard against which the doctors' conduct should have been weighed. Preliminarily, we noted that

[t]here was some dispute as to whether the gastroscopic examination qualified as a surgical operation. [The patient] was anesthetized and transported to a special area for the examination, occurrences which seem to closely relate the examination to the normal surgical procedure. However, if there is any distinction between the two types of procedures, such a distinction is immaterial for purposes of this issue. The same duty of disclosure obtains whether or not the treatment can be technically termed operative.

Id. at 265 n. 2, 286 A.2d at 649 n. 2 (emphasis added). Thus, we concluded that the patient was entitled to be informed of those risks that a reasonable person would consider material to his or her decision to undergo treatment.

However, Cooper appears to be the only case in which a court has stated that physicians have the same duty of disclosure concerning surgical or non-surgical procedures. In every case since Cooper, courts of this Commonwealth have steadfastly refused to apply the doctrine of informed consent to any procedure or treatment that is not operative or surgical. For example, in Malloy v. Shanahan, 280 Pa.Super. 440, 442-43, 421 A.2d 803, 804 (1980) (plurality), the sole question on appeal was "whether a doctor who renders treatment to a patient consisting of the therapeutic administration of a drug with known potentially dangerous side effects is obligated to secure the patient's informed consent to the treatment...." In that case, a patient became partially blind after orally taking prescription drugs over a period of twelve years. The court, recognizing that informed consent is necessary prior to a surgical operation, concluded that such consent "ha[d] not been extended to therapeutic treatment...." Id. at 443, 421 A.2d at 804.

In 1985, this Court was again asked to consider whether the doctrine of informed consent was applicable to the oral administration of prescription drugs. Boyer v. Smith, 345 Pa.Super. 66, 497 A.2d 646 (1985). After looking to Malloy for guidance, we concluded that the doctrine should be limited to only those cases involving surgical or operative procedures. In reaching this conclusion, we reasoned that

[i]n Gray, supra, our supreme court expressly grounded its adoption of the informed consent doctrine upon the legal theory that the performance of a medical procedure without a patient's informed consent constitutes a technical assault or battery. To now expand the doctrine's current applicability to cases involving the administration of therapeutic drugs would be to radically depart from, and indeed obliterate, the foundation upon which the Gray decision stands. Not only are we unpersuaded that such expansion is necessary, we consider ourselves bound by our supreme court's pronouncements in Gray.

Id. at 72, 497 A.2d at 649.

Subsequently, the United States District Court for the Eastern District of Pennsylvania applying Pennsylvania law, considered whether the administration of prescriptive drugs required informed consent when such drugs were injected rather than taken orally. Karibjanian v. Thomas Jefferson Univ. Hosp., 717 F.Supp. 1081 (E.D.Pa.1989). The court recognized that Boyer was the leading Pennsylvania case on the issue of informed consent as it relates to the administration of drugs, but stated that "[t]he middle ground over which the Boyer court leapt includes a case like the plaintiff's in which the patient is injected with a substance. A touching occurs, perhaps a painful one, yet it is something less than surgery." Id. at 1084. That court determined that

[w]hen it is the need for an injection which the patient disputes, it is reasonable to impose a duty of informed consent. For example, there are some drugs which may be administered orally or by injection; the decision to inject such a drug should be made only with the patient's informed consent. On the other hand, when it is the substance administered, not the method of administration, which is challenged ... it is absurd to...