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JANE AND MARCELLO FESTA v. STEVEN J. GREENBERG (06/30/86)

filed: June 30, 1986.

JANE AND MARCELLO FESTA,
v.
STEVEN J. GREENBERG, M.D., APPELLANT



APPEAL FROM THE ORDER ENTERED JUNE 24, 1985 IN THE COURT OF COMMON PLEAS OF PHILADELPHIA COUNTY, CIVIL NO. 1398 FEB 1981.

COUNSEL

Brian M. Peters, Philadelphia, for appellant.

Michael Bloom, Philadelphia, for appellees.

Cirillo, President Judge, and Rowley and Wieand, JJ.

Author: Cirillo

[ 354 Pa. Super. Page 348]

"Appellees initiated this action against appellant-physician asserting that the surgery he performed upon appellee-wife was done in a negligent manner and without proper consent. The trial court originally entered a compulsory non-suit in appellant-physician's favor because appellees failed to introduce expert testimony to support either of their claims. Subsequently, the trial court granted appellees' motions to remove non-suit and for a new trial stating that expert testimony is not required to establish a physician's duty to disclose information in informed consent cases. This timely appeal followed.*fn1

Appellant, Dr. Steven Greenberg, contends that the trial court erred in removing the compulsory non-suit in an action in informed consent when: 1) appellees failed to introduce expert medical evidence identifying the actual risks associated with tubal ligation by cauterization; and 2) appellees failed to introduce expert medical evidence demonstrating that the sterilization procedure was the proximate cause of her infection, her pregnancy and the lump in her scar area. We reverse on the basis of the first issue raised by appellant; therefore, we will not address appellant's remaining issue.

I

In March 1979, shortly after the birth of her third child, appellee, Jane Festa, contacted appellant regarding a possible sterilization operation. During this consultation, appellant discussed a number of different methods of sterilization with appellees: hysterectomy, tubal ligation, cut and tie procedure, and a vasectomy for appellee-husband. Mrs. Festa testified that she knew what a hysterectomy and

[ 354 Pa. Super. Page 349]

    vasectomy involved and that Dr. Greenberg explained the remaining procedures. According to Mrs. Festa's testimony, Dr. Greenberg described the tubal ligation procedure as a burning process: the tube is burnt shut. The final alternative discussed was the cut and tie procedure. Dr. Greenberg informed Mrs. Festa that the instrument used to cut the tubes gave off sparks which in some instances burned vital organs. Mrs. Festa testified that this was the procedure she originally wanted; however, Dr. Greenberg advised her that the tubal ligation method was two times safer and involved a shorter hospital stay than the cut and tie procedure.

Additionally, Dr. Greenberg apprised Mrs. Festa of the failure rate for the tubal ligation, one out of seven hundred, and the cut and tie procedures, one in three hundred to three hundred and fifty. Dr. Greenberg also reported to appellees that no pregnancy resulted in any of the cases in which he had performed tubal ligations. He further reported that in those rare situations when a woman becomes pregnant after a tubal ligation the pregnancy occurs a few years after the operation because the tubes sometimes re-open.

After this discussion, Dr. Greenberg performed a routine gynecological examination upon Mrs. Festa. Upon completion of this exam, Dr. Greenberg provided Mrs. Festa with a consent form to sign. Mrs. Festa testified that she only read the first paragraph and then just glanced at the remaining paragraphs for a minute or two before signing the form.

Approximately two weeks after this consultation, Mrs. Festa entered Rolling Hill Hospital to undergo sterilization by tubal ligation. The week following the operation Mrs. Festa returned to Dr. Greenberg's office where one of his associates examined her and discovered blood clots in her incision. The incision was drained and Mrs. Festa was given antibiotics to ward off infection. Six days later, Mrs. Festa entered Rolling Hill Hospital's emergency room; at

[ 354 Pa. Super. Page 350]

    this time, her incision was again drained and a rubber tube inserted and sewn into place to ease the draining problem.

Mrs. Festa testified that it took her a full month to recover from the operation despite Dr. Greenberg's assurances that she would be fine after a few days. Five months after the sterilization procedure, Mrs. Festa discovered that she was again pregnant. Additionally, she claimed that a lump the size of a nickel protruded about one-half inch at the site of her incision. Mrs. Festa stated that she still has the lump below her navel as a result of the operation.

II

The central issue with which we are presented in this appeal is whether expert medical testimony is required to establish the existence of medically technical risks, the feasibility of proposed alternative treatments and the effect of disclosure upon the patient under the circumstances. Resolution of ...


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