Appeal from the judgment of November 15, 1988, in the Court of Common Pleas of Cumberland County, No. 23 Civil 1981.
Richard H. Wix, Harrisburg, for appellant.
Christian S. Erb, Jr., Harrisburg, for appellee.
Rowley, Popovich and Johnson, JJ.
[ 385 Pa. Super. Page 522]
This is an appeal by Floyd E. Gouse from a judgment entered against him in a medical malpractice action arising out of a splenectomy performed on appellant by appellee, Dr. Cassel, in mid-October, 1976. At the trial, in November 1986, appellant alleged that his informed consent to the surgery was not obtained, that the surgery was unnecessary, and that the operation and follow-up care were negligently performed. The appellee was granted a compulsory non-suit on the negligence count, and the informed consent issue was sent to the jury in the form of two interrogatories:
1. Was Mr. Gouse advised of those material facts, risks, complications and alternatives to surgery, which a reasonable man would have considered significant in deciding whether or not to have the operation?
2. If you find that the plaintiff was not advised of those material facts, risks, complications and alternatives to the surgery, do you find that a reasonable man having Mr. Gouse's diagnosis and in Mr. Gouse's condition
[ 385 Pa. Super. Page 523]
would have agreed to undergo the operation nevertheless?
The jury answered the first interrogatory in the negative and the second in the affirmative, and the trial judge entered judgment against the appellant. Appellant appeals, asserting first, that the second interrogatory should not have been given at all; and second, that if given, the second interrogatory should have presented a subjective rather than an objective ("reasonable person") standard for causation. Appellant requests that his case be remanded for a trial solely to determine the amount of damages to be awarded or, in the alternative, a new trial. Based on our thorough review of the record, consideration of the arguments presented, and search of the law of informed consent in Pennsylvania, we reverse the judgment of the trial court and remand this case for a trial solely to determine the amount of damages to which appellant is entitled.
Our court, in deciding if a new trial should be ordered, must consider whether the trial court abused its discretion or committed an error of law which might have affected the outcome of the case. Cooper v. Burns, 376 Pa. Super. 276, 281, 545 A.2d 935, 937 (1988). The jury here found that appellant's consent to the surgery was not "informed." If, as appellant claims, it was error for the second interrogatory to be sent to the jury, the outcome of the trial without that interrogatory would have been a judgment for the appellant, with only the amount of damages in question. If, on the other hand, the second interrogatory, as written, incorrectly represents the law of Pennsylvania, the outcome of the trial might have been reversed. Since we find that it was error for the trial judge to give the second interrogatory to the jury, we do not address appellant's second issue.
In Pennsylvania, if a physician fails to obtain a patient's informed consent for a surgery he performs, that doctor is guilty of assault and battery and "is liable for any injuries resulting from the invasion . . . ." Cooper v. Roberts, 220 Pa. Super. 260, 265, 286 A.2d 647, 649 ...