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filed: August 18, 1989.


Appeal from the Order of the Court of Common Pleas of Dauphin County, Civil at No. 712-S-1984.


Martin S. Hohenadel, Lancaster, for appellant.

Peter J. Curry, Harrisburg, for appellee.

McEwen, Olszewski and Popovich, JJ. McEwen, J. files a dissenting opinion.

Author: Popovich

[ 387 Pa. Super. Page 128]

This is an appeal from the order denying post trial motions entered in the Court of Common Pleas of Dauphin County following a verdict in favor of the appellee Randall R. Raeuchele, D.O. In this medical malpractice suit, the appellant's claims under theories of negligence and informed consent were rejected by the jury. Timely post trial motions for judgment n.o.v. and new trial were filed by the appellant and denied on September 7, 1988. We reverse and remand.

On appeal the appellant, Vicki Via, raises the following issues:

(1) Whether the lower court erred in denying her post trial motions for judgment n.o.v. on her informed consent claim where the defendant doctor testified that he did not inform her of or discuss with her alternative procedures concerning reproductive surgery then available to her. (2) Whether the lower court erred in refusing her post trial motion for judgment n.o.v. where evidence at trial demonstrated that the doctor proceeded with the performance of a cuffed tuboplasty upon her without informing her of the material risk concerning her future fertility, alternative methods for performing the same or similar

[ 387 Pa. Super. Page 129]

    surgery or the possible effects the surgery would have regarding her ability to become pregnant.

Briefly, the facts are these as stated by the lower court:

Vicki and her boyfriend with whom she is now married had been living together for approximately five years when they decided to marry, though no definite plans were made. During this time, they engaged in sexual intercourse, but never used contraceptives. Since having children was important to them, they contacted their family physician to determine their fertility. A sperm count revealed that if there was a problem, it was with Vicki. She was then referred to [Randall R. Raeuchele, D.O., the appellee], who was highly recommended by their physician.

Vicki first saw Dr. Raeuchele on March 8, 1982, at which time he performed a pelvic exam which revealed that she was normal. According to Vicki, the doctor discussed two procedures for determining whether she could conceive. (N.T. 202) The purpose of these tests were to determine Vicki's "tubal patency" meaning whether her fallopian tubes were open and receptive to egg and sperm migration. (N.T. 264) One of the test was to inject air into the cervix, and if the tubes were open, the air would pass through the tubes and into the abdominal cavity. However, because of the pain associated with this test, the discussion centered on the laparoscopic examination. (N.T. 202, 265, 273)

A laparoscopy requires a small incision at or near the navel, the inflation of the abdomen with carbon monoxide, and the insertion of a lighted tube for the purpose of a visual examination of the patient's abdominal region, including the reproductive organs. (N.T. 265-266) The patient is placed under anesthesia and, according to Vicki, the operation would take approximately fifteen (15) to twenty (20) minutes. Barring complications, scarring was to be minimal. (N.T. 202-3, 272)

Vicki testified that the doctor never discussed microsurgery as an alternative to laparoscopic (macro) surgery, he

[ 387 Pa. Super. Page 130]

    did not advise her of the risks to her fertility. She did indicate, however, that the doctor advised her of the risks associated with surgery and laparoscopy in general. (N.T. 206, 214) Indeed, Vicki insisted that the operation was exploratory only, and that she did not consent to corrective surgery. (N.T. 206, 214)

The doctor testified at great length and detail, in narrative form, concerning the events and discussions preceding the surgery. No where in his testimony is there an indication that he discussed microsurgery, risks to fertility, and the importance of timing. Further, on cross examination, he admitted that he did not discuss these matters. (N.T. 311-314) It was also undisputed that the surgery was not needed to save Vicki's life as there was no emergency. (N.T. 314) . . .

[During the surgery] the doctor observed that Vicki's tubes were "clubbed" or closed. A blue "indigo carmine" dye was injected [into the tubes and it entered the right tube, but was unable to exit.] As to the left tube, there was no evidence of dye at any point. Consequently, the doctor tore a hole in the fimbriated end of the left tube, which allowed the escape of [fluids which indicated that the tube was badly diseased].

Reconstructive surgery was then attempted on the right tube. [The tube was cut] and immediately the dye advanced through the end of the tube. (N.T. 295) [The doctor believed the tube was] diseased as well and "flimsy". (N.T. 303) . . . In other words, the tissue was dead, and therefore, according to the doctor, its removal actually slightly improved Vicki's chance of becoming pregnant. He testified that this procedure, known as a salpingostomy,*fn1 is as statistically sound as microsurgery and that he did not consider Vicki to be a candidate for reconstructive miscrosurgery. (N.T. 358) . . . The doctor's expert testified that macro-surgery "carries exactly the same pregnancy

[ 387 Pa. Super. Page 131]

    rate as microsurgery does in this section of the fallopian tube."*fn2

On appeal the appellant contends that the lower court erred in not granting her post trial motion for judgment n.o.v. She avers that, based upon the Doctor's testimony, she was not informed of alternative procedures, risks to her future fertility and the importance of the timing of his actions.

The standard of review for the denial of a judgment n.o.v. was outlined in Timbrook v. Foremost Insurance Co., 324 Pa. Super. 384, 471 A.2d 891 (1984):

The standard which we employ when reviewing the denial of a motion of directed verdict and a motion for judgment n.o.v. is the same. We will reverse the lower court when we find "an abuse of discretion or an error of law which controlled the outcome of the case." McDevitt v. Terminal Warehouse Co., 304 Pa. Super. 438, 442, 450 A.2d 991, 993 (1982). In ruling upon these motions, the trial judge must consider "the evidence, together with all reasonable inferences that may be drawn therefrom . . . in the light most favorable to the verdict winner." Carrender v. Fitterer, 310 Pa. Super. 433, 436, 456 A.2d 1013, 1014 (1983).

Accepting as true all facts and proper inferences which tend to support the contention of the party against whom the motion has been made, and rejecting all testimony and inferences to the contrary, the trial judge must grant said motions when no two reasonable minds could differ that, as a matter of law, the party has failed to make out his case. Thomas v. Allegheny & Eastern Coal Co., 309 Pa. Super. 333, 455 A.2d 637 (1982).

Timbrook, supra, 324 Pa. Superior Ct. at 387, 471 A.2d at 892.

[ 387 Pa. Super. Page 132]

Additionally, in Northwest Savings Ass'n v. Distler, 354 Pa. Super. 187, 511 A.2d 824 (1986), this Court said the grant of a judgment notwithstanding the verdict may only be entered in a clear case where the facts are such that no two reasonable persons could fail to agree that the verdict is improper. Id. (citing Olson v. Dietz, 347 Pa. Super. 1, 500 A.2d 125 (1985); Sperrazza v. Cambridge Mutual Fire Ins. Co., 313 Pa. Super. 60, 459 A.2d 409 (1983). See also Fleck v. Durawood, 365 Pa. Super. 123, 529 A.2d 3, 5 (1987).

Given this standard of review, our next consideration is the law of informed consent. The doctrine of informed consent is grounded upon the tenet that a physician is precluded from administering to, or operating upon a patient without the patient's consent. We cite the language of Defulvio v. Holst, 272 Pa. Super. 221, 414 A.2d 1087 (1979) wherein the law to be applied in the matter at hand is clear:

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. Defulvio v. Holst, 272 Pa. Super. 221, 414 A.2d 1087 (1979) (citing Cooper v. Roberts, 220 Pa. Super. 260, 265, 286 A.2d 647, 649 (1971).

Consent to medical treatment is valid if:

[T]he 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 . . . the physician is bound to disclose only those risks which a reasonable man would consider material to his decision whether or not to undergo treatment. Cooper, supra at 260, 286 A.2d 647 (1971).

Further, the recent decision of Sagala v. Tavares, 367 Pa. Super. 573, 533 A.2d 165, 167 (1987) reiterated the "prudent patient" standard. Therefore, in determining whether a physician breached his duty to his patient:

[ 387 Pa. Super. Page 133]

[t]he standard of care is not what a reasonable medical practitioner would have done in the situation but whether the physician disclosed those risks which a reasonable man would have considered material to his decision whether or not to undergo treatment. Festa v. Greenburg, 354 Pa. Super. 346, 511 A.2d 1371, 1373 (1986).

Sagala, supra, 367 Pa. Superior Ct. at 578, 533 A.2d at 167.

The importance of the prudent patient standard of review was further emphasized in Sagala, wherein the court stated;

The primary focus of Pennsylvania law with respect to informed consent is to guarantee that a patient is supplied with all the material facts from which an intelligent choice as to medical attention may be reached, regardless of whether the patient chooses rationally. Cooper, supra at 286 A.2d 650. Recovery is based on the administration of surgical procedure in the absence of the patient's informed consent, not whether the patient would not have gone through with the operation if warned of a particular danger. (emphasis in original)

Sagala, supra at 580-81, 533 A.2d at 168-169.

Materiality is established by a two-step process. First the trier of fact must be supplied with expert information as to the nature of the harm and the probability of it occurring. However, it is the trier of fact, not the expert, who must decide the materiality of the risk involved and whether the probability of that type of harm is a risk which a reasonable patient would consider in rendering a decision on medical treatment. Sagala, supra, 367 Pa. Superior Ct. at 577, 533 A.2d at 167, citing Jozsa v. Hottenstein, 364 Pa. Super. 469, 528 A.2d 606, 608 (1987); see also Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966); Jeffries v. McCague, 242 Pa. Super. 76, 363 A.2d 1167 (1976).

Instantly, a judgment n.o.v. will be entered as a matter of law if we find that Doctor Raeuchele failed to inform the appellant of those risks which he knew or should have known to be material to the appellant when she was making her decision to undergo laparoscopic surgery. See Sagala,

[ 387 Pa. Super. Page 134]

    supra, 367 Pa. Superior Ct. at 577, 533 A.2d 167, citing Festa v. Greenburg, 354 Pa. Super. 346, 511 A.2d 1371, 1373 (1986). For consent to be valid, the physician must apprise the patient of the nature of the therapy, the seriousness of the situation, the disease and the potential results of the treatment. Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966). We will first examine the informed consent agreement that the appellant signed; then we will discuss the risks involved with tuboplastic surgery and whether or not the risks should have been disclosed to the appellant before the tuboplasty was performed.

The following language is the pertinent portion of the consent agreement signed by the two parties.

1. I hereby authorize Dr. R. Raeuchele and/or such assistants as may be selected by him, to treat the condition or conditions which appear indicated by the diagnostic studies already performed. Laparoscopy -- Tubal Patency Test.

2. The procedure(s) necessary to treat my condition (has, have) been explained to me by Dr. R. Raeuchele and I understand the nature of the procedure(s) to be: Examination of the abdomen with a telescopic instrument with the treatment of any condition with the ovaries, tubes or other tissue that might be deemed necessary, including fulgeration (burning of tissue) at this time. I understand that one or two incisions may be used to carry out this procedure. I also understand that in an emergency, such as bleeding or a bowel burn or puncture my abdomen may have to be opened.

Injection of dye through the tubes to determine if the tubes are open.

3. It has been explained to me that during the course of the operation, unforeseen conditions may be revealed that necessitate an extension of the original procedure(s) or different procedure(s) than those set forth in Paragraph 2. I, therefore, authorize and request that the above named surgeon, his assistants, or his designees perform such surgical procedures as are necessary and desirable

[ 387 Pa. Super. Page 135]

    in the exercise of professional judgment. The authority granted under this paragraph 3 shall extend to treating all conditions that require treatment and are not known to Dr. R. ...

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