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BOWERS v. GARFIELD

September 17, 1974

MARY BOWERS and ROBERT BOWERS Husband and Wife
v.
SAMUEL GARFIELD, M.D.


Ditter, District Judge.


The opinion of the court was delivered by: DITTER

In this case, the jury found for the doctor in a medical malpractice suit brought on the theory that a hysterectomy had been performed without obtaining the patient's informed consent. Although post-trial motions were not filed timely, plaintiffs have taken an appeal. I am preparing this opinion so that the Court of Appeals may be advised of my views on the issues involved: causation standards under Pennsylvania law, the use of medical texts in cross-examination, and the receipt of a pretrial memorandum in evidence to impeach an expert witness.

 Plaintiff, Mrs. Mary Bowers, first consulted defendant, Samuel Garfield, M.D., on December 5, 1969. At that time she complained of recurrent vaginal bleeding since the delivery of her fourth and last child. *fn1" Following an evaluation of Mrs. Bowers, which included a pelvic examination, Dr. Garfield recommended that she undergo a hysterectomy, or surgical removal of her uterus.

 On February 8, 1970, Mrs. Bowers was admitted as a patient to Frankford Hospital in Philadelphia, where on the following day Dr. Garfield removed her uterus, left Fallopian tube, and left ovary. Mrs. Bowers remained in the hospital until February 26, 1970, during which time she developed abdominal distention, jaundice, fever, anemia attributed to hemorrhage into her abdominal cavity, and a vesicovaginal fistula, i.e., an abnormal opening between her bladder and vagina. The vesicovaginal fistula persisted after plaintiff's discharge from the hospital.

 Mrs. Bowers was examined by a urologist, and on August 24, 1970, she was admitted to another hospital and the fistula was successfully repaired by surgery. Mrs. Bowers and her husband then brought the present action against Dr. Garfield for malpractice. *fn2" By appropriate answers to written interrogatories the jury concluded that:

 (1) Dr. Garfield was not negligent in recommending and performing a hysterectomy on Mrs. Bowers;

 (2) Dr. Garfield had not advised Mrs. Bowers of the risk of a vesicovaginal fistula;

 (3) A reasonable woman, had she been advised of the risk of a vesicovaginal fistula, nevertheless would have undergone a hysterectomy; and

 On the basis of these findings, judgment was entered in favor of the defendant and against the plaintiffs. Plaintiffs contend that three evidentiary rulings, the submission of "Question Number 3", and the trial court's charge to the jury thereon constitute reversible error.

 I. Use of the Objective Standard

 The jury determined that even though Dr. Garfield had not informed Mrs. Bowers of the risk of a vesicovaginal fistula, a reasonable woman, aware of such a risk, would have proceeded with the operation nevertheless. Plaintiffs contend that the submission to the jury of the objective standard of causation, i.e., the standard of a "reasonable woman", was error. In plaintiffs' view, if considered at all, *fn3" the causation question should have been decided on a subjective basis, that is, would Mrs. Bowers herself have undergone the hysterectomy had Dr. Garfield advised her of the risk of a vesicovaginal fistula.

 In the absence of a Pennsylvania decision on point, my task was to predict what the Supreme Court of Pennsylvania would hold on this question. Costello v. Schmidlin, 404 F.2d 87 (3d Cir. 1968); Davis v. Smith, 126 F. Supp. 497 (E.D. Pa. 1954), affirmed, 253 F.2d 286 (3rd Cir. 1958). The leading Pennsylvania case dealing with informed consent is Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966), in which the Pennsylvania Supreme Court announced a broad but workable rule:

 
(1) where a physician or surgeon can ascertain in advance of an operation alternative situations and no immediate emergency exists, a patient should be told of the alternative possibilities and given a chance to decide what should be done before the doctor proceeds with the operation;
 
(2) the doctor is under a duty to advise the patient adequately on the dangers to be anticipated as a result of the operation and not to minimize them;
 
(3) the plaintiff has the burden to prove the operation performed had not been authorized. *f ...

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