John W. Jordan, IV, Pittsburgh, for appellant.
John A. DeMay, Pittsburgh, for appellee.
Watkins, President Judge, and Jacobs, Hoffman, Cercone, Price, Van der Voort and Spaeth, JJ.
[ 242 Pa. Super. Page 77]
Plaintiff-appellee filed an action in trespass against defendant-appellant, a urologist, for failure to obtain appellee's informed consent before he performed a prostatectomy on appellee. Based on the pleadings, appellant's deposition, and appellee's affidavit, the lower court granted appellee's motion for a summary judgment. We agree with appellant's contention that the summary judgment was improperly granted and, therefore, we reverse.
On August 22, 1973, appellee consulted appellant when appellee experienced acute urinary retention. Appellant relieved appellee's condition by use of a catheter and advised appellee that surgery would be necessary. Appellee
[ 242 Pa. Super. Page 78]
was admitted on the same day to Mercy Hospital in Pittsburgh. Appellant, chief of the Division of Urology in Mercy Hospital, diagnosed the condition as benign prostatic hypertrophy. On August 29, 1973, he performed a retropubic prostatectomy. Appellee was discharged from the hospital on September 16, 1973.
On April 10, 1975, appellee filed a complaint in trespass in which he alleged that as a result of the operation, he had become incontinent and impotent. Further, he alleged that:
"5. . . . on August 29, 1973, a retropubic prostatectomy was performed by [appellant].
"6. On the same date due to extensive bleeding, the Defendant, C. C. Altman, M. D.,*fn1 returned the Plaintiff to the Operating Room for a cystoscopic evacuation of blood clots and the insertion of a Foley catheter to which was attached a hemostatic bag.
"7. The Defendants [Dr. Altman and appellant] were negligent in the manner in which they performed this operation . . . and the manner in which they treated Plaintiff in the following respects:
"A. The Defendants failed to obtain the informed consent of Husband-Plaintiff to the operation:
"(1) Defendants failed to inform the Plaintiffs*fn2 of the four recommended operative techniques that were available to them for the treatment of his condition;
"(2) The Defendants failed to inform the Plaintiffs of the advantages and drawbacks of the four accepted operative techniques;
[ 242 Pa. Super. Page 79]
"(3) The Defendants failed to inform the Plaintiffs of the relative advantages, risks, and hazards involved in the performance of a retropubic prostatectomy;
"(4) Defendants failed to advise the Plaintiffs of alternatives that were available to them;
"(5) The Defendants failed to advise the Plaintiffs of the probabilities and possibilities of incontinence resulting from this operation;
"(6) Defendants failed to inform the Plaintiffs of the probabilities and possibilities of impotence resulting from this operation; and
"(7) The Defendants failed to spend any reasonable time with the Plaintiffs discussing his condition, the nature of the procedure, and the possible sequelae of the procedure."
On May 8, 1975, appellee took appellant's deposition and on July 7, 1975, filed a motion for summary judgment. Appellee's motion stated that "[t]he Deposition of [appellant] has been taken which clearly establishes that he failed to secure the 'Informed Consent' of the Plaintiffs to this operation." Relevant portions of the deposition were attached to appellee's motion. The appellant testified in part as follows:
"Q. [by appellee's counsel]. Doctor, before performing this operation did you have a discussion with [appellee] concerning the operation?
"Q. When did this discussion take place? . . .
"A. It took place specifically the day before . . . .
"Q. Is it your recollection that it was while making rounds that you discussed this ...