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WILLIAM DEFULVIO v. HAZEL HOLST (11/27/79)

filed: November 27, 1979.

WILLIAM DEFULVIO
v.
HAZEL HOLST, M.D., APPELLANT



No. 2394 October Term, 1978, Appeal from the Order and Judgment of the Court of Common Pleas of Montgomery County at Civil Action--Law, No. 70-1868.

COUNSEL

E. Paul Maschmeyer, Philadelphia, for appellant.

Arlene Freiman, Philadelphia, for appellee.

Hester, Hoffman and Catania,*fn* JJ.

Author: Hoffman

[ 272 Pa. Super. Page 223]

Appellant contends that the lower court erred in (1) denying her motion for judgment N.O.V. or for a new trial on the issue of informed consent; (2) permitting the jury to consider as an element of damages appellee's loss of earnings; (3) denying her motion for a new trial based upon the excessiveness of the verdict. We reject appellant's contentions and, accordingly, affirm the order of the court below.

In late 1967, appellee, William DeFulvio, consulted Dr. Richard Oakey, a plastic surgeon, concerning feelings of "stuffiness" in his right ear and "fullness" in the right side of his neck which had persisted for two years. Dr. Oakey recommended that Mr. DeFulvio undergo an excisional biopsy for this condition. Dr. Oakey explained to Mr. DeFulvio that the biopsy would involve an incision about 1" long and the removal of the suspected tumor on his parotid (salivary) gland. Mr. DeFulvio consented to the biopsy and scheduled hospital surgery to be performed by Dr. Oakey on January

[ 272 Pa. Super. Page 22421]

, 1968. On January 19, 1968, however, Dr. Oakey cancelled the proposed surgery because he became ill. Dr. Oakey advised Mr. DeFulvio to consult with appellant, Dr. Hazel Holst, his assistant. Mr. DeFulvio visited appellant for the first time on January 21, 1968. According to Mr. DeFulvio, appellant saw him for a period of two to four minutes and told him only that there might be a small growth on his parotid gland which "should be looked into." Upon appellant's recommendation Mr. DeFulvio was admitted to the hospital on February 20, 1968. That evening, appellant visited Mr. DeFulvio, examined him, and showed him a sketch of the incision she intended to make. Mr. DeFulvio testified that appellant did not explain to him that the operation she planned to perform (a parotidectomy) differed from a biopsy. He testified further that she did not inform him of the risks involved, the six-inch scar which would result, and the concavity in his neck which would exist after the operation. Appellant's testimony refuted each of these allegations. On February 21, 1968, appellant performed a parotidectomy on Mr. DeFulvio. The operation left Mr. DeFulvio with a six-inch scar, concavity in his neck, pain, and a feeling of numbness which persisted at the time of trial.

Mr. DeFulvio filed suit against appellant, alleging that the operation was performed negligently and without his informed consent. The jury returned a verdict for appellant on the negligence issue and against appellant on the consent issue. The jury further awarded Mr. DeFulvio $50,000 in damages. This appeal followed.

"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." Cooper v. Roberts, 220 Pa. Super. 260, 265, 286 A.2d 647, 649 (1971). Thus, "'it 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

[ 272 Pa. Super. Page 225]

    it, the organs of the body involved, the disease or incapacity sought to be cured, and the possible results.'" Gray v. Grunnagle, 423 Pa. 144, 166, 223 A.2d 663, 674 (1966) (quoting R. E. Powell, Consent to Operative Procedures, 21 Md.L.Rev. 189 (1966)). The test of informed consent to be applied by the factfinder is "whether the physician disclosed all those facts, risks and alternatives that a reasonable man in the situation which the physician knew or should have known to be the plaintiff's would deem significant in making a decision to undergo the recommended treatment." Cooper v. Roberts, supra, 220 Pa. Super. at 267, 286 A.2d at 650. In Bowers v. ...


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