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IRENE AND PAUL BOYER v. STEPHEN H. SMITH (08/23/85)

filed: August 23, 1985.

IRENE AND PAUL BOYER, APPELLANTS,
v.
STEPHEN H. SMITH, M.D. AND QUAKERTOWN COMMUNITY HOSPITAL, APPELLEES



Appeal from the Judgment of the Court of Common Pleas of Bucks County, Civil, at No. 80-121 09-09-6

COUNSEL

Peter J. Boyer, Philadelphia, for appellants.

Joseph C. Bernstein, Allentown, for appellees.

Montemuro, Popovich and Watkins, JJ.

Author: Montemuro

[ 345 Pa. Super. Page 67]

This appeal presents the issue of whether to expand the current applicability of the doctrine of informed consent beyond cases involving medical treatment by operative procedures so as to encompass cases involving solely the administration of therapeutic drugs.

This action was commenced on January 31, 1979, before the Arbitration Panels for Health Care. On November 28, 1980, the matter was transferred to the Court of Common Pleas of Bucks County. On November 8, 9 and 10, 1982, a trial was held before the Honorable Edmund V. Ludwig and a jury. The jury returned a verdict in favor of appellee,

[ 345 Pa. Super. Page 68]

Stephen H. Smith, M.D.*fn1 On November 17, 1982, appellants filed a motion for new trial and, following argument, the court below denied the motion on July 23, 1984. Upon appellants' praecipe, judgment was entered for appellee on August 31, 1984, and this timely appeal followed.

Appellants' sole post-trial challenge is to the lower court's refusal to charge the jury regarding the doctrine of informed consent. At trial, appellants requested that the jury be instructed in pertinent part as follows:

If you find that the plaintiff, Irene Boyer, was not informed of the risks and alternatives to a health care service which a reasonable person would expect to know in order to be able to make an intelligent choice as to whether to undergo the treatment, the defendant Dr. Smith is liable for all of the injuries sustained by the patient as a result of the treatment.

As set forth in the Pa.R.A.P. 1925(b) opinion of the court below, the facts underlying this action are the following:

On September 26, 1978, Irene Boyer, age 55, who was accompanying her husband on his visit to Dr. Smith, an orthopedist, complained to the doctor of pain in her lower back and leg. Upon examining her, Dr. Smith diagnosed the condition as sciatica with possible nerve root compression. He prescribed a 10-day supply of 100 milligram capsules of butazolidin and bed rest and advised Mrs. Boyer that butazolidin could cause oral and gastrointestinal ulcers. He did not inform Mrs. Boyer about the possibility of other side effects. He was aware of its life-threatening potential and of the existence of less potent drugs. She was to notify ...


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