Moure v. Raeuchle
| Decision Date | 21 February 1992 |
| Citation | 529 Pa. 394,604 A.2d 1003 |
| Parties | Vicki L. MOURE, now by marriage Vicki L.M. Via, Appellee, v. Randall R. RAEUCHLE, D.O. and Community General Osteopathic Hospital. Appeal of Randall R. RAEUCHLE, D.O. |
| Court | Pennsylvania Supreme Court |
William A. Atlee, Jr., Martin S. Hohenadel, Lancaster, for appellee.
Before NIX, C.J., and LARSEN, FLAHERTY, McDERMOTT, ZAPPALA, PAPADAKOS and CAPPY, JJ.
Appellant, Randall R. Raeuchle, D.O., appeals from the order of the Superior Court (McEwen, Olszewski and Popovich, JJ.; opinion by Popovich, J.; dissenting opinion by McEwen, J.) which: reversed the judgment of the Court of Common Pleas of Dauphin County; entered judgment non obstante veredicto in favor of appellee, Vicki L.M. Via, nee Moure, the plaintiff below; and remanded the case to the lower court with instructions to conduct a trial to determine appellee's damages.
The relevant facts, when viewed in the light most favorable to the verdict winner (appellant), 1 are as follows. On March 1, 1982, appellee, then twenty-nine (29) years old, and her then fiance, now husband, Richard Via, visited their family doctor, Leroy Sykes, M.D. The couple was concerned that appellee had not become pregnant even though they had not used any consistent form of birth control during the previous five (5) year period. Dr. Sykes tested Mr. Via and determined that his sperm were viable. Accordingly, the doctor concluded that if there was a fertility problem, it was with appellee. He then recommended that appellee see appellant, Dr. Raeuchle, who was a surgeon specializing in procedures involving a laparoscope. 2
On March 8, 1982, appellee visited appellant's office, at which time he performed a pelvic examination, which showed no abnormalities. Appellant then advised appellee of three possible procedures for determining whether she could conceive, 3 each of which was designed to determine if the fallopian tubes were open and receptive to egg and sperm migration. Appellant advised appellee that a laparoscopic procedure (a/k/a laparoscopy) was the most accurate of the three procedures and generally a short and relatively pain-free operation.
The laparoscopy is a procedure whereby a surgeon can look into a patient's abdomen and make an evaluation of the condition of the patient's organs. In appellee's case, in conjunction with the laparoscopy, appellant recommended the performance of a tubal patency test. Said test is designed to measure the ability of the fallopian tubes to accept eggs from the ovaries: 4 basically it is a test to see if the tubes are open. This test involves the injection of dye into the tubes and then a monitoring of the progression of the dye through the tubes. In a perfect fallopian tube the dye would proceed up through the tube and empty out of the end which is closest to the ovary. However, in an imperfect tube the flow of dye would be blocked and the observer would then be able to determine the location of the blockage.
Appellant advised appellee of all the risks attendant to these two procedures. On this point, appellant testified at great length about the descriptions he gave to appellee, and, presumably, this testimony was believed by the jury. Therefore, we are bound to accept that testimony. Moreover, appellant introduced into evidence the patient consent agreement which was signed by appellee and which provided, in relevant part, as follows:
1. I hereby authorize Dr. R.R. Raeuchle and/or such assistant as may be
selected by him, to treat the condition or conditions which appear indicated
by the diagnostic studies already performed.
(Explain the nature of the condition and the need to treat such condition.)
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
2. The procedure(s) necessary to treat my condition (has, have) been explained
to me by Dr. R.R. Raeuchle and I understand the nature of the procedure(s) to
be: See Reverse Side.
_______________________________________________________________________________
_______________________________________________________________________________
(A description of the procedure(s) in the language of laymen.)
unforeseen conditions may be revealed that necessitate an extension of the
original procedure(s) or different procedure(s) than those set forth in
paragraph 2. I, therefore, authorize and request that the above named
surgeon, his assistants, or his designees perform such surgical procedures as
are necessary and desirable in the exercise of professional judgment. The
authority granted under this Paragraph 3 shall extend to treating all
conditions that require treatment and are not known to Dr. R.R. Raeuchle at
the time the operation is commenced. I authorize the disposal by Hospital
authorities of any tissues or parts which may be removed during the course of
the operation.
4. I have been advised by my physician of certain risks and consequences that
are associated or involved in the operation and alternative methods of
treatment. I am aware that there are other risks, such as severe loss of
blood, infection, cardiac arrest, etc., that are attendant to the performance
of any surgical procedure. I am aware that the practice of medicine and
surgery is not an exact science and I acknowledge that no guarantees have
been made to me concerning the results of the operation or procedure.
No. 2 continued: (description to Patient) [appearing on Reverse Side of
Agreement]:
Examination of the abdomen with a telescopic instrument with the treatment of
any condition with the ovaries, tubes or other tissue that might be deemed
necessary, including fulguration (burning of tissue) at this time. I
understand that one or two incisions may be used to carry out this procedure.
I also understand that in an emergency, such as bleeding or a bowel burn or
puncture my abdomen may have to be opened.
Injection of a dye through the tubes to determine if the tubes are open.
See Defendant's Exhibit No. 2.
On March 25, 1982, appellee was admitted to Community General Osteopathic Hospital and appellant performed the laparoscopic procedure the next day. Appellant testified extensively about what occurred during the procedure. According to his testimony the laparoscope revealed that both fallopian tubes were severely damaged and "immediately [he] knew, number one, that she was probably sterile and could not get pregnant." His subsequent actions were, in part, premised on the initial diagnosis of probable infertility. Appellant noted that both fallopian tubes were "involved [with] hydrosalpinx," which is a collection of watery fluid in the tube "[t]hat is the end stage after longstanding disease of chronic inflammatory disease that is accompanied by pus in the tube." Appellant concluded that the left tube was "shot" beyond repair but that the right tube, although damaged, was possibly salvageable. Appellant then proceeded to cut off the tip of the tube "in order to provide a wide open lumen [the inner open space of a tubular organ]." Appellant also testified that his reason for cutting off this tip was to "treat [the] disease" he found by allowing "internal drainage" which would then "prevent the reoccurrence hopefully ... a (sic) bacteria getting into this culture medium." After cutting the tip, a watery substance and the dye immediately drained from the tube, indicating that the tube was now completely open. This would also (theoretically) allow an unfertilized egg to enter the tube.
As standard operating procedure, appellant then attempted to retrieve the excised tip of the tube for testing. In the process of retrieval, he inadvertently punctured an ovarian artery, causing immediate and profuse bleeding. In response to the bleeding, appellant made a full incision into the abdomen, and with the help of another surgeon stopped the bleeding and repaired the artery.
At that point appellant, knowing that the opening he had created at the tip of the fallopian tube would close through natural processes within a three to eight day period, decided that the best course of action would be to do a salpingostomy on the right tube. A salpingostomy is a procedure which involves the use of a few small sutures to tie the end of the tube back 5 to prevent it from closing in the natural course. Such a procedure generally keeps the tube open for a three to six month period and, in some cases, for as long as a year. Appellant's decision to do the salpingostomy was related to the unexpected opening of the abdomen (necessitated by the bleeding artery): a salpingostomy is difficult to do during a laparoscopic procedure but relatively simple once there is a complete incision into the abdomen. An alternative course would have been to close appellee up after the bleeding was controlled and to recommend to her additional surgery to keep the fallopian tubes open. After the operation, appellant advised appellee of what had transpired, including the creation, by the salpingostomy, of a three (3) to six (6) month "window" during which it was possible for her to get pregnant (so long as the right tube did not reclose naturally). Appellee testified that she was resistent to the idea of attempting to become pregnant during the "window" period because she was not yet married; she married on September 11, 1982, five and one half (5 1/2)...
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