Forman, Seitz and Adams, Circuit Judges. Seitz, Circuit Judge (concurring in part and dissenting in part).
Legal-medico jurisprudence requires that a physician obtain the consent of a patient before performing surgery unless the need for such consent is obviated by an emergency which places the patient in immediate danger and makes it impractical to secure such consent.*fn1 This blackletter rule, clear and simple on its face, has occasioned courts in many jurisdictions to grapple with defining the elusive concepts of "consent" and "emergency." These concepts require courts to develop a delicate balance between the right of the patient to choose the treatment he wishes to undergo and the freedom of the physician to practice responsible and progressive medicine without fear of frequent litigation.
In this suit, brought after the unfortunate death of Mrs. Dorothy Louise Sipling following surgery, we are called upon to explore the necessary elements of these concepts which have evolved from attempts to understand the proper relationship between physician and patient and to protect the right of the patient to decide whether "he will take his chances with [an] operation, or take his chances of living without it."*fn2
The action here, instituted by decedent's administrator pursuant to diversity jurisdiction, seeks to hold defendant physicians, Dr. Frederick W. Wright and his son, Dr. Frederick M. Wright, responsible for Mrs. Sipling's death which occurred after a thyroidectomy operation performed by the elder Wright. Plaintiff alleged at trial that the operation was performed negligently, and without a valid consent by the decedent or her husband. Although defendants obtained two signed form consents, plaintiff contended that these forms were ineffective because the defendants failed to alert Mrs. Sipling or her husband to the dangers inherent in the operation and failed to advise them of the alternative methods of treating Mrs. Sipling's condition.
The case was tried by the Honorable William J. Nealon and a jury. After five days of testimony the jury was requested to determine whether defendants were negligent in preparing the decedent for the operation, whether defendants obtained consent to the operation, or whether an emergency existed thus eliminating the need for consent. The jury returned a verdict for the defendants.
Plaintiff filed motions for judgment n.o.v. or in the alternative for a new trial. They were denied. In those motions, and on this appeal, plaintiff asserts that there was as a matter of law insufficient evidence to permit the jury to conclude that defendants obtained an "informed" consent, or that an emergency existed so as to permit defendants to operate without such consent. Plaintiff also contends that the charge to the jury was incorrect on the issues of consent and emergency. Since plaintiff is appealing primarily from the dismissal of a motion for judgment n.o.v., we are required to consider the facts surrounding Mrs. Sipling's operation in the light most favorable to the defendants.
Mrs. Sipling, who was suffering from an "extremely toxic goiter", was referred to the defendants by her family physician in order "to have thyroid surgery performed." The first consultation with Dr. F. W. Wright was on December 12, 1963. In his opinion, "she was one of the most extremely seriously ill women due to her goiter that [he had] ever seen". Indeed, he "felt that she was an emergency", and had her admitted immediately to the Hanover Hospital. Dr. F. W. Wright stated that the first time he saw her, he told her and Mr. Sipling that the only possible way she could recover was to have surgery performed, and that thyroid surgery was "serious". Mr. Sipling conceded that the first time he and Mrs. Sipling met with Dr. F. W. Wright, the doctor advised there would be an operation.
When Mrs. Sipling was admitted to the hospital, both she and her husband signed an authorization for medical and surgical treatment. In the hospital she was given drugs to get her thyroid gland in an "euthyroid"*fn3 state before the operation. Although seriously ill, she was permitted to go home for the Christmas holidays. The defendants saw her in their office on January 16, 1964. Her condition had deteriorated, and she was again admitted as an emergency patient. At the time of the second admission, another authorization was signed by Mrs. Sipling.
Mr. Sipling testified that whenever he asked Dr. F. W. Wright when he was going to operate, Dr. Wright told him that Mrs. Sipling would be operated on "as soon as her pulse was down and her nerves calmed down." Dr. F. W. Wright testified that he "talked to Mr. Sipling frequently and told him that [he] would operate on [his wife] as soon as [he] felt that she was in good enough condition to be operated on." He said he "couldn't tell the exact day, but [he] told him at one stage that it would be done on either of the following two days."
Dr. F. W. Wright testified that on February 6, 1964, the point was reached where the drugs had begun to lose their effectiveness, and if she were not operated on at that particular time she might never have been able to have an operation. Dr. F. W. Wright performed the operation that day. Mrs. Sipling died on February 7th at 1:30 a.m.
Since jurisdiction here is predicated on diversity and inasmuch as the decedent and her husband are citizens of Pennsylvania and the operation was performed in that state, it is clear that Pennsylvania law is controlling.
The parties do not contest the general principle that in the absence of an emergency the patient's consent is a prerequisite to a surgical operation.*fn4 They do differ, however, in their interpretation of the more recently promulgated rule in Pennsylvania that a consent is operative only if it is an "informed" or ...