Sard v. Hardy

• Decision Date: 21 December 1976
• Docket Number: No. 853,853
• Citation: 34 Md.App. 217,367 A.2d 525
• Parties: Katie Sue SARD et vir v. Erving D. HARDY.
• Court: Court of Special Appeals of Maryland

Page 217

34 Md.App. 217

367 A.2d 525

Katie Sue SARD et vir v. Erving D. HARDY.

No. 853.

Court of Special Appeals of Maryland.

Dec. 21, 1976.

Certiorari Granted March 23, 1977.

Lawrence P. Pinno, Jr., Baltimore, with whom were Joseph F. Lentz, Jr., and Lentz & Hooper, Baltimore, on the brief, for appellants.

George J. Goldsborough, Jr., Easton, with whom was Goldsborough, Franch & Collect, Easton, on the brief, for appellee.

Argued before MORTON, POWERS and DAVIDSON, JJ.

POWERS, Judge.

The parties in this appeal, Katie Sue Sard and her husband, David Penn Sard, Jr., appellants, and Erving D. Hardy, M. D., appellee, went to trial before a jury and Judge Harry E. Clark, Jr. in the Circuit Court for Talbot County, on an amended declaration containing eight causes of action asserted by Mrs. and Mr. Sard against Dr. Hardy.

Suit was filed on 29 August 1972. The amended declaration was filed on 1 February 1973. Trial was held on 26 and 27 March 1974. At the close of all of the evidence offered by the plaintiffs, the defendant filed a motion for a directed verdict. Maryland Rule 552. After hearing arguments, the court granted the motion. On 1 April 1974 the plaintiffs filed a motion for a new trial. That motion was heard by Judge Clark on 28 July 1975, and was overruled. Judgment absolute was entered. The plaintiffs appealed.

We shall discuss briefly the significant allegations of the amended declaration, to aid in understanding the legal foundations upon which the several claims rest.

The first three causes of action are asserted only by Mrs. Sard. In the first she said that Dr. Hardy was a licensed physician, a specialist in obstetrics and gynecology, and in the performance of bilateral tubal ligation to prevent pregnancy; that in March 1968 she employed Dr. Hardy to treat her for the purpose of accomplishing sterilization; that she had undergone several difficult prior pregnancies, terminating in Caesarean sections, and Dr. Hardy recommended that she be sterilized; that on 26 March 1968 Dr. Hardy delivered her child by Caesarean section and attempted to perform a bilateral tubal ligation upon her, and represented to her that it would accomplish sterilization. She alleged that Dr. Hardy did not use the usual, ordinary, or accepted method of performing that operation or, in the alternative, that he was so negligent in performing the operation as to fail totally in accomplishing its purpose; and that in April 1970 she again became pregnant. The other allegations related primarily to damages.

In her second cause of action Mrs. Sard adopted the allegations of the first, except as to negligent performance of the operation, and alleged that Dr. Hardy negligently failed to inform her that the surgical procedure for sterilization was not absolute, and that the possibility did exist that she could thereafter become pregnant, so that she might declare her decision in accepting or rejecting the procedure.

The third cause of action differed only in that the negligence alleged was that Dr. Hardy advised her after the delivery and operation that she could engage in sexual intercourse with safety and could not become pregnant, and that he gave this advice without having performed suitable postoperative tests to ascertain the success or failure of the operation.

The fourth, fifth, and sixth causes of action, asserted by both plaintiffs, paralleled the first, second, and third, respectively, and differed only in that they claimed damages incurred jointly by both plaintiffs.

The seventh cause of action, by Mrs. Sard alone, alleged that Dr. Hardy expressly warranted the success of the operation. The eighth, brought by both plaintiffs, was based upon the same allegation of express warranty, and claimed joint damages.

Mrs. Sard's relevant medical history as disclosed by the record was that in December 1965, when she was eight months pregnant, she developed eclampsia and severe convulsions. An emergency Caesarean section was performed. The baby did not survive. She first saw Dr. Hardy, the defendant in this case, in October 1966, after she had become pregnant a second time. He rendered routine prenatal care, and on 4 March 1967 delivered a normal baby girl by Caesarean section in the hospital at Easton. There were no complications.

Dr. Hardy again saw Mrs. Sard when she came to him on 28 November 1967. She was five months pregnant. He rendered care through an uneventful prenatal course, culminating in the delivery of a normal baby girl on 26 March 1968 by Caesarean section, at The Memorial Hospital at Easton. At the same time Dr. Hardy performed upon Mrs. Sard an operative procedure described as a bilaterial tubal ligation.

In June 1970 Mrs. Sard, suspecting that she was pregnant, consulted a different physician, who confirmed that she was. The time of conception was estimated to have been the middle of April 1970, slightly more than two years after the tubal ligation was performed. The child was born at the hospital in Cambridge in January 1971.

At the trial of the case Mr. and Mrs. Sard relied upon the testimony of four witnesses to support the issues of liability. The witnesses were Dr. Hardy, called by the plaintiffs as an adverse witness, Mr. Sard, Mrs. Sard, and Dr. Eldon L. Hawbaker, who had been in training as a resident in general surgery in the hospital in March 1968, and had assisted Dr. Hardy at the operation. Dr. Hawbaker was called by the defendant out of turn, by agreement, to testify that he had dictated the operative report, and that it was true, to the best of his knowledge. The record suggest that during cross examination, the plaintiffs made him their witness for a limited purpose.

The issues, as they were pleaded and tried below, fell into four areas, which we summarize as follows:

1. That the doctor was negligent in the manner in which he performed the sterilization operation. (First and fourth causes of action.)

2. That the doctor was negligent in failing to inform his patient of facts material to her consent to the sterilization operation. (Second and fifth causes of action.)

3. That the doctor was negligent in failing to perform postoperative tests to ascertain the success or failure of the operation. (Third and sixth causes of action.)

4. That the doctor expressly warranted to his patient that the operation would accomplish sterilization. (Seventh and eighth causes of action.)

In argument to Judge Clark on the motion for a directed verdict, plaintiffs' counsel relied for evidence of negligent performance upon the eventual 'failure' of the operation-recanalization of a fallopian tube. The trial judge rejected that argument, and granted the motion as to the first and fourth causes of action. The issue is not raised or argued in this appeal.

As to the alleged failure to make postoperative tests for success or failure, plaintiffs' counsel conceded below that there was no evidence to support that claim, and that the motion should be granted as to the third and sixth causes of action. It was. The issue is not raised or argued in this appeal.

Two issues are raised in this appeal as to the correctness of the directed verdict, and an error in ruling on evidence is asserted.

In their brief, appellants state the Questions Presented in this way:

I. Was it error for the trial court to direct a verdict in favor of the Defendant, Dr. Ervin D. Hardy?

A. Was the plaintiff's evidence legally sufficient to sustain a finding by the jury that Dr. Hardy had failed to obtain an informed consent from Mr. and Mrs. Sard prior to the sterilization of Mrs. Sard?

II. Was it error for the trial court to refuse to allow Dr. Hawbaker, who had assisted Dr. Hardy in Mrs. Sard's sterilization, to testify as to the standard of care required of physicians and surgeons who performed sterilizations in Easton, Maryland in 1968?

III. Was it error for the trial court to hold that Dr. Hardy's express warranty of sterilization was unenforceable for lack of consideration?

Consent to Operate

Generally, a physician has no right to operate upon the body of a patient without that patient's consent. ¹ To do so has been treated historically by the courts as a battery, or assault and battery. As the Court of Appeals of New York, through Cardozo, J. said in Schloendorff v. Society of New York Hospital, 211 N.Y. 125, 105 N.E. 92 (1914):

'Every human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages.'

In that case the testimony of the patient was that she had consented to an abdominal operation for the purpose of examination, but had notified the doctor that there must be no operation. The surgeon who operated removed a tumor. The Court held that the hospital was not liable for the physician's wrong, but said of it, '* * * the wrong complained of is not merely negligence. It is trespass.'

The assault and battery theory has been widely applied, with some of the cases holding that an apparent consent which is not 'informed' is no consent at all. In A. Holder, Medical Malpractice Law, 228-29 (1975), the author explains:

'There are two different legal theories to support actions by plaintiffs alleging lack of consent. The original theory on which this cause of action was predicated was that treatment to which the patient had not knowingly consented was a classic example of the tort of 'assault and battery.' This is still the case where the patient is in total ignorance of what is to be done.'

'The other approach to this problem is to treat it as negligence and allege that a physician's failure to explain the consequences of treatment to which the patient has consented without understanding is negligence per se and a violation of the requisite standards of due care. In most cases in which the doctrine of informed consent arises, the patient is aware of the nature...