Sauro v. Shea

• Decision Date: 12 July 1978
• Citation: 390 A.2d 259,257 Pa.Super. 87
• Parties: Gordon R. SAURO, Administrator of the Estate of Beverly Sauro, Deceased, Appellant, v. Charles R. SHEA, Donald R. Wolford, Robert S. DeWaters, Jr., Irving S. Leuin and Valley Oral Surgeons, LTD., a professional corporation.
• Court: Pennsylvania Superior Court

390 A.2d 259

257 Pa.Super. 87

Gordon R. SAURO, Administrator of the Estate of Beverly

Sauro, Deceased, Appellant, v. Charles R. SHEA, Donald R. Wolford, Robert S. DeWaters, Jr., Irving S. Leuin and Valley Oral Surgeons, LTD., a professional corporation.

Superior Court of Pennsylvania.

July 12, 1978

Argued April 10, 1978.

Richard J. Catalano, Pittsburgh, for appellant.

James Francis O'Malley, Johnstown, with him Yost &amp O'Malley, Johnstown, for appellees.

Before JACOBS, President Judge, and HOFFMAN, CERCONE, PRICE, VAN der VOORT and SPAETH, JJ.

HOFFMAN Judge:

Appellant contends that the lower court erred in (1) refusing to charge the jury on the issue of informed consent, (2) admitting into evidence certain written statements of appellees, (3) admitting into evidence the curriculum vitae of appellees' expert witness, and (4) refusing to grant a new trial or judgment n. o. v. because the jury verdict was against the weight of the evidence. We agree that the lower court erred in refusing to charge the jury on the issue of informed consent and, therefore, we reverse and remand.

At a jury trial in the Cambria County Court of Common Pleas which began on May 10, 1976, and ended on May 19, 1976, the following facts were adduced: On September 1, 1971, at approximately 9:00 a. m., appellant's decedent, Beverly Sauro, age 23 went to the offices of Valley Oral Surgeons, Ltd., to undergo extraction of her remaining 23 teeth. Prior to the surgical procedure, the decedent completed a brief, written medical screening form in which she answered questions regarding her medical history. At that time, the decedent also signed the following form:

"I hereby authorize the operation, and acknowledge that the nature of such operation or procedure its seriousness and possible outcome have been explained to me and that I have understood the explanation. I also acknowledge that no guarantee has been given to me by anyone concerning the results which may be obtained.

"I understand that in consenting to the performance of this operation or procedure, I am authorizing as well, all procedures which are ordinarily incident to the procedure named or described, including the administration of such anesthetics as may be considered advisable.

"I have completed the medical screening form." Dr. Shea, an appellee, then briefly examined the decedent by checking her pulse and blood pressure.

Prior to surgery, appellee, Dr. DeWaters, another appellee and the operating surgeon, verbally reviewed the medical screening form with the decedent. No one discussed with the decedent either the possible risks of the surgical procedure or the comparative risks of general and local anesthesia. At approximately 9:30 a. m., Dr. DeWaters intravenously administered general anesthesia to the decedent in the form of 25 mg of Demerol, 1/150 of Atropine, and 15 CC of a 1% Solution of Brevital. Dr. DeWaters then administered 25% Oxygen and 75% Nitrous oxide and penthrane through an inhalation mask. Dr. DeWaters alone administered the anesthesia, performed the surgery, and monitored the decedent's life signs. Two assistants aided him; neither assistant was a certified dental technician or had any formal surgical, dental, or anesthesiology training. The surgical procedure lasted approximately 30 minutes. At about 10:05 a. m., during the recovery phase following the completion of surgery, the assistant who was holding an oxygen mask over the decedent's face informed Dr. DeWaters that the patient was beginning to "look dark". At that point, Dr. DeWaters, who was at the sink washing up, went to the decedent and observed that she was cyanotic and in a state of cardio- respiratory arrest. He observed that the decedent was not breathing, had no pulse, and that she had fixed and dilated pupils. Dr. DeWaters called for appellees Drs. Shea and Wolford who were in adjacent rooms. They assisted Dr. DeWaters in attempting to resuscitate the decedent through the use of cardiac chest massage and the injection of drugs. After about five minutes, the decedent, although still unconscious, appeared to be responding slightly. However, at 10:20, as she was being placed into a previously summoned ambulance, decedent again became cyanotic and suffered cardio-respiratory arrest. When the decedent arrived at the emergency room of the Conemaugh Valley Memorial Hospital at about 10:30, the hospital staff continued resuscitation efforts. The decedent remained in the hospital until September 4, 1971, during which time she never regained consciousness and was sustained by an artificial life support system. On September 4, 1971, decedent was officially pronounced dead. The death certificate stated that the cause of death was irreparable brain damage resulting from cerebral anoxia caused by cardio-respiratory arrest. ^[1]

Appellant, the decedent's father and administrator of her estate, filed a complaint in trespass on August 31, 1972. Following trial and a jury verdict for appellees, appellant moved for a new trial and judgment n. o. v. This appeal followed the lower court's denial of appellant's motion.

Appellant contends that the lower court erred in refusing to charge the jury on the issue of informed consent. At trial, appellant requested the following instruction:

"The law in this Commonwealth is that where a patient is mentally and physically able to consult about his condition, in the absence of an emergency, his 'informed consent' is a prerequisite to a surgical operation by his physician. An operation without such informed consent is a technical assault, making the physician liable for any injuries resulting from the invasion regardless of whether the treatment was negligently administered." Prior to delivering instructions to the jury, the court ruled that because the decedent signed a consent form, there was insufficient evidence, as a matter of law, for the jury to consider the issue of informed consent. We disagree.

Our Supreme Court stated the doctrine of informed consent in Gray v. Grunnagle, 423 Pa. 144, 155, 223 A.2d 663, 668 (1966) as follows:

" 'The principles of law applicable to this phase of the litigation are clear. Such principles are: (a) where 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 (Moscicki v. Shor, 107 Pa.Super. 192, 195, 163 A. 341; Dicenzo v. Berg, 340 Pa. 305, 307, 16 A.2d 15); (b) the burden is on plaintiff to prove "that the operation performed, or substantially that operation, was not authorized by him": Dicenzo v. Berg, supra, 340 Pa. 307, 16 A.2d 16.' "

In Dunham v. Wright, 423 F.2d 940 (3d Cir. 1970), the Third Circuit Court of Appeals analyzed the rationale underlying the doctrine of informed consent: ". . . (b)efore a patient will be deemed to give an informed consent, it may be necessary that he know the alternative methods of treatment available to him and the inherent dangers and possibilities of success of such alternatives. The philosophy behind such theory of informed consent is that the patient has the right and responsibility to determine whether he wants to risk the suggested corrective surgery. If a patient's decision is to be a knowing and intelligent one, he must understand in addition to the risks of the suggested surgery, the possible results of the failure to chance it. A complete understanding of the consequences of foregoing the operation would seem necessarily to include a consideration of the alternative treatment for the patient's disease or condition.

"Some jurisdictions considering the duty of a physician to disclose to a patient the hazards of surgery have given the physician broad discretion by saying that a physician does not have to alarm a patient by explaining all such possibilities. Grunnagle, however, makes it clear that in Pennsylvania a consent is 'informed' only if the patient knows what is apt to happen to him and the possible adverse results and dangers of the operation. The logical inference from this formulation may be that it is not the prerogative of the physician to keep secret and screen out any of the possible complications of surgery.

"(In Grunnagle ) (t)he Pennsylvania Supreme Court indicated that a patient can make a decision only if he is told all of the consequences . . . (T)he Court stated:

' " * * * (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, and organs of the body involved, the disease or incapacity sought to be cured, and the possible results." ' 423 Pa. at 166, 223 A.2d at 674. " Dunham, supra, at 944-45.

In Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647 (1971) (allocatur refused in 221 Pa.Super. xlviii (1972), our Court articulated the standard by which to evaluate the scope of a physician's duty to disclose risks involved in a surgical procedure. In Cooper, supra, the plaintiff entered the hospital for tests and studies of a growth on a hiatal hernia. She signed the following consent form:

"I hereby grant permission for such operative or non-operative procedures as may be deemed necessary or advisable for diagnosis and treatment by the physicians in charge of" (Appellant's name inserted). Plaintiff subsequently underwent a gastroscopic examination. Although defendant physicians explained the nature of the procedure to plaintiff, they did not inform her of any attendant risks. Shortly after completion of the gastroscopic examination plaintiff suffered a perforated stomach. In reversing the...