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BERNICE SAGALA v. J.O. TAVARES (11/04/87)

filed: November 4, 1987.

BERNICE SAGALA, ADMINISTRATRIX OF THE ESTATE OF STEVEN J. SAGALA, APPELLANT,
v.
J.O. TAVARES, M.D., APPELLEE



Appeal from the Judgment entered August 20, 1986 in the Court of Common Pleas of Erie County, Civil Division at No. 10901-A-1980.

COUNSEL

Donald J. McCormick, Pittsburgh, for appellant.

Thomas M. Lent, Erie, for appellee.

Rowley, Del Sole and Johnson, JJ. Rowley, J., concurs in the result.

Author: Del Sole

[ 367 Pa. Super. Page 575]

Appellant-Bernice Sagala, Administratrix of the Estate of Steven J. Sagala, Decedent, filed a medical malpractice action against Appellee-Dr. J.O. Tavares, seeking compensation for the death of her husband. The action was based on Appellee's alleged failure to obtain Decedent's informed consent prior to performing surgery. Following trial, a jury rendered a defense verdict. Post-trial motions were denied, judgment was entered on the verdict, and this appeal ensued.

On appeal, Appellant argues that the trial court erroneously charged the jury regarding a plaintiff's burden of proof in an informed consent case. Appellant also contends

[ 367 Pa. Super. Page 576]

    that expert testimony concerning prevailing medical standards in advising patients of the contraindications of certain medical procedures was erroneously admitted. We agree and reverse.

A brief summary of the facts is appropriate. In January, 1979, Decedent consulted Appellee regarding problems that he had been experiencing with his feet. Appellee recommended surgery to alleviate the discomfort; and, based on this advice, Decedent agreed. The operation was performed on January 30, 1979. Shortly after his February 6, 1979 hospital release, Decedent died of a bilateral pulmonary embolism, which resulted from the surgery. Appellee concedes that he did not advise Decedent that a pulmonary embolism was one of the risks associated with this type of surgery.

Appellant alleges that the testimony of two expert witnesses was improperly admitted insofar as they were permitted to testify as to whether or not it would have been medically proper to advise Decedent that a pulmonary embolism might result from the foot surgery. Appellant first disputes the admissibility of testimony by Dr. C. McCollister Evarts, an expert called by Appellee. During the course of testimony, the witness stated that "we do not instruct our patients that this [pulmonary embolism] is a complication or a possible complication." (V.D., 9/6/85, 35-36).*fn1 Later, Dr. Evarts was asked the following question:

Q. Based upon the patient's [Decedent's] past history and the records you've read, and in your opinion as a surgeon, do you have an opinion within a reasonable degree of medical certainty of whether it would have been medically proper within reason for Dr. Tavares to ...


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