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MIRIAM BULMAN AND PAUL BULMAN v. FRANKLIN J. MYERS (11/18/83)

decided: November 18, 1983.

MIRIAM BULMAN AND PAUL BULMAN, HER HUSBAND, APPELLANTS,
v.
FRANKLIN J. MYERS, D.D.S.



No. 12 Philadelphia 1982, APPEAL FROM THE JUDGMENT ENTERED OF FEBRUARY 14, 1983 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, CIVIL NO. 1420 OCTOBER TERM, 1978

COUNSEL

Barbara Ellen Sarkin, Philadelphia, for appellants.

Patrick O. McDonald, Philadelphia, for appellee.

Cirillo, Johnson and Cercone, JJ.

Author: Cirillo

[ 321 Pa. Super. Page 263]

In April, 1976 the appellant, Miriam Bulman, first came under the care of the appellee, Franklin J. Myers, D.D.S., for the care and treatment of impacted wisdom teeth. On or about April 14, 1976 the appellant was admitted to Jeanes Hospital for the purpose of surgically removing her maxillary and mandibular left and right third molars. Following surgery, which was performed by the appellee, the appellant suffered a marked loss of temperature, taste and pain sensations in her tongue and a slurring of speech.

The appellant brought a trespass action against the appellee, seeking damages for injuries sustained as a result of the surgery being performed without her "informed consent." No assertion of negligent performance was ever advanced by the appellant. This matter was tried before the Honorable Harry A. Takiff and a jury on July 24 and 25, 1980. The appellee did not testify in his own behalf, although the appellant introduced sections of the appellee's deposition transcript into evidence. Following a verdict in favor of the appellee, the appellant filed motions for a new trial and judgment n.o.v.*fn1 These post-trial motions were subsequently denied and this appeal followed.

On appeal, the appellant avers that the trial judge erred in failing to charge the jury that a patient cannot formulate a valid, informed consent to a surgical procedure when disclosures of the risks of surgery are made by a nurse assistant and not by the operating surgeon. As regards this area of the law, our Court has stated:

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

[ 321 Pa. Super. Page 264]

    the nature of the operation to be performed, the seriousness of 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 fact-finder 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. Garfield, 382 F.Supp. 503 (E.D.Pa. 1974), the federal district court characterized this statement in Cooper as a codification of an "objective standard" of informed consent.

DeFulvio v. Holst, 272 Pa. Super. 221, 224-225, 414 A.2d 1087, 1089 (1979).*fn2

At trial, the appellant testified that any information that she received concerning possible complications came only from Mrs. Myers who was the nurse/assistant to her dentist/husband. The appellee, through his deposition, however, testified that he explained the risks of surgery to the appellant. In addition, Mrs. Myers testified in detail as to the substance of the pretreatment information she communicated to the appellant. The appellant asserts that only the appellee, as operating physician, can effectively relate all the information necessary for an informed consent. The ...


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