Rowinsky v. Sperling

• Decision Date: 19 July 1996
• Citation: 452 Pa.Super. 215,681 A.2d 785
• Parties: Heidi ROWINSKY, Executrix of the Estate of Gary Rowinsky, Deceased, and Heidi Rowinsky, in her own right, Appellant, v. Michael R. SPERLING, M.D., Catherine Phillips, M.D., C.P.U.P. Neurosurgical Assoc., Michael J. O'Connor, M.D., Comprehensive Epilepsy Center, Graduate Hospital, and Graduate Neurosurgery Consultants, Appellees.
• Court: Pennsylvania Superior Court

Page 785

681 A.2d 785

452 Pa.Super. 215

Heidi ROWINSKY, Executrix of the Estate of Gary Rowinsky Deceased, and Heidi Rowinsky, in her own right, Appellant, v. Michael R. SPERLING, M.D., Catherine Phillips, M.D C.P.U.P. Neurosurgical Assoc., Michael J. O'Connor, M.D Comprehensive Epilepsy Center, Graduate Hospital, and Graduate Neurosurgery Consultants, Appellees.

Superior Court of Pennsylvania.

Argued April 30, 1996.

Filed July 19, 1996.

Joseph F. Ricchiuti, Philadelphia, for appellant.

Barbara S. Magen, Philadelphia, for appellees.

Before CIRILLO, President Judge Emeritus, DEL SOLE, J. and CERCONE, President Judge Emeritus.

CIRILLO, President Judge Emeritus:

Heidi Rowinsky, executrix of the estate of her husband, Gary Rowinsky, appeals from an order entered in the Court of Common Pleas of Philadelphia County granting judgment notwithstanding the verdict (JNOV) in favor of appellee Michael J. O'Connor, M.D. We reverse and remand for reinstatement of the jury verdict.

Mr. and Mrs. Rowinsky commenced a lawsuit against Dr. O'Connor ¹ with regard to a temporal lobectomy procedure performed at Graduate Hospital on December 7, 1988. ² The Rowinskys claimed that Dr. O'Connor failed to obtain Mr. Rowinsky's informed consent before performing the operation. Specifically, the Rowinskys claimed they were not informed of the risk of speech loss or memory loss after the procedure, and were actually assured that these risks did not exist at all. Following a jury trial, a verdict was entered in favor of the estate of Gary Rowinsky in the amount of $400,000.00. Dr. O'Connor filed a motion for post-trial relief. Following oral argument, the trial court granted Dr. O'Connor's motion for JNOV.

The evidence adduced at trial revealed the following. Early in 1987, Mr. Rowinsky, who was 31 years old, suffered a grand mal epileptic seizure. The seizures continued, and Mr. Rowinsky was eventually admitted to Graduate Hospital to determine whether he was a candidate for a lobectomy, an operation designed to cure seizures. After initial screening tests, Dr. O'Connor, a neurosurgeon, and Dr. Sperling, a neurologist, both agreed that Mr. Rowinsky was a good candidate for the surgery. Before the lobectomy was performed, Mr. Rowinsky was admitted to Graduate for the surgical implantation of depth electrodes. The electrodes were implanted into the brain for monitoring purposes to localize the origin of the seizures. The electrodes were removed after approximately two weeks, and Drs. Sperling and O'Connor recommended that Mr. Rowinsky undergo the lobectomy.

Shortly before the scheduled surgery, a final test, the Wada test, was performed. The Wada test consisted of putting both sides of Mr. Rowinsky's brain "to sleep" at separate times. According to Mrs. Rowinsky, she and her husband were told that this test would determine in advance the location of damaged areas and assure that memory would be preserved after surgery. After the test, it was Dr. Sperling's belief that Mr. Rowinsky was not at risk for significant memory problems, and that the operation should go forward as planned. ³ Mrs. Rowinsky testified that on the day before the lobectomy, the Rowinskys were told that the operation would be performed while Mr Rowinsky was awake to be sure he could speak and identify pictures throughout the procedure.

The operation was performed. Unfortunately, it did not cure Mr. Rowinsky's seizures, but in fact, made them worse. Further, the lobectomy caused severe speech and memory difficulties. Mr. Rowinsky was unable to return to work due to these difficulties.

On appeal, Mrs. Rowinsky raises one issue for our consideration:

Whether the trial court erred in granting JNOV in favor of defendant, where the court replaced the jury's finding in favor of plaintiff with its own conclusion, and based that conclusion on one brief colloquy on cross examination, and failed to consider all of the evidence that supported the jury's verdict?

We initially set forth our well established standard of review:

A grant of judgment n.o.v. is appropriate only in a clear case, one where the facts are such that no two reasonable minds could fail to agree that the verdict was improper. See Scott v. Southwestern Mut. Fire Assn., 436 Pa.Super. 242, 647 A.2d 587 (1994). Thus, in order to determine the propriety of a decision granting judgment n.o.v. "[w]e must determine whether there was sufficient competent evidence to sustain the verdict, granting the verdict winner the benefit of every reasonable inference that can reasonably be drawn from the evidence and rejecting all unfavorable testimony and inferences." Id., 436 Pa.Super. at 247, 647 A.2d at 590. We will not reverse the trial court's decision absent the demonstration of either an abuse of discretion or an error of law. Id.

Samuel Rappaport Family Partnership v. Meridian Bank, 441 Pa.Super. 194, 201-02, 657 A.2d 17, 20 (1995); see Moure v. Raeuchle, 529 Pa. 394, 604 A.2d 1003 (1992) (judgment notwithstanding the verdict should only be entered in a clear case and any doubts must be resolved in the verdict winner's favor); see also Pirozzi v. Penske Olds-Cadillac-GMC, 413 Pa.Super. 308, 605 A.2d 373 (1992); Ingrassia Construction Co., Inc. v. Walsh, 337 Pa.Super. 58, 486 A.2d 478 (1984). "It is further well-settled that a judge should not reach his decision on how he would have voted if a member of the jury, but on the facts as they present themselves through the sieve of the jury's deliberations." Jones v. Constantino, 429 Pa.Super. 73, 81, 631 A.2d 1289, 1293 (1993) (citations omitted).

Mrs. Rowinsky asserts that her husband was not specifically informed of the risks involving speech and memory loss; to the contrary, Mr. Rowinsky was assured that these risks were eliminated before surgery by an exhaustive battery of pre-operative tests. "[W]here a patient is mentally and physically able to consult about his condition, in the absence of an emergency, the consent of the patient is 'a prerequisite to a surgical operation by his physician' and an operation without the patient's consent is a technical assault." Stover v. Association of Surgeons, 431 Pa.Super. 11, 17, 635 A.2d 1047, 1050 (1993) (quoting Gouse v. Cassel, 532 Pa. 197, 202, 615 A.2d 331, 333-34 (1992) (citations omitted)). The Pennsylvania Supreme Court has defined the scope of "consent" as necessarily requiring "informed consent."

[S]ince the agreement between the physician and his patient is contractual in nature, for there to be a valid consent it must be clear that both parties understand the nature of the undertaking and what the possible as well as expected results might be.... [I]t will be no defense for a surgeon to prove that the patient had given his consent, if the consent was not given with a true understanding of the nature of the operation to be performed, the seriousness of it, the organs of the body involved, the disease or incapacity sought to be cured, and the possible results.

Gray v. Grunnagle, 423 Pa. 144, 166, 223 A.2d 663, 674 (1966); accord: Gouse, 532 Pa. at 202-3, 615 A.2d at 334; Stover, 431 Pa.Super. at 17, 635 A.2d at 1050. Additionally,

[a] physician or surgeon need not disclose all known information; however, the physician or surgeon is required to advise the patient of those material facts, risks, complications and alternatives to surgery that a reasonable person in the patient's situation would consider significant in deciding whether to have the operation. Thus, the patient is assured that he will be provided with "all the material facts from which he can make an intelligent choice as to his course of treatment, regardless of whether he in fact chooses rationally."

Gouse, 532 Pa. at 203, 615 A.2d at 334 (quoting Cooper v. Roberts, 220 Pa.Super. 260, 266, 286 A.2d 647, 650 (1971)). (emphasis added).

The goal of the informed consent doctrine is to provide the patient with material information which is necessary to determine whether or not to proceed with the surgical procedure. Sinclair v. Block, 534 Pa. 563, 570, 633 A.2d 1137, 1140 (1993). If this vital information regarding risks, complications, and alternatives to surgery, which a reasonable person in the patient's position would have considered significant, is not disclosed to the patient, the surgeon is held liable. See Gouse, 532 Pa. at 202, 615 A.2d at 333. The determination of what a reasonable patient would do or consider significant under certain circumstances is for the jury to decide; expert assistance is not necessary. Sagala v. Tavares, 367 Pa.Super. 573, 579, 533 A.2d 165, 168 (1987) (citing Cooper, 220 Pa.Super. at 260, 286 A.2d at 651).

Guided by our scope of review, we must determine whether sufficient competent evidence existed to sustain the verdict; we view such evidence in the light most favorable to Mrs. Rowinsky. Samuel Rappaport Family Partnership, supra. At trial, Mrs. Rowinsky presented the expert testimony of a neurosurgeon, Dr. Donald Penney. Dr. Penney opined that because Mr. Rowinsky's seizures were located in his left temporal lobe, the lobectomy posed a significant risk of harm to speech or memory. Dr. O'Connor's expert did not dispute this; Dr. John Vires, director of neurosurgery, agreed that the operation posed a risk to speech and memory, and that a patient should be informed of the risk. Thus, the only issue for the jury to decide was whether the information provided to Mr. Rowinsky was sufficient to inform him of those risks.

Mrs. Rowinsky testified that the risks of surgery which were presented to her husband included death (as is the case in any surgery), stroke, and loss of peripheral vision; neither speech loss nor memory loss were mentioned. ⁴ Mrs. Rowinsky introduced into evidence the...