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DAVIS v. HOFFMAN

July 7, 1997

ROBERTA M. DAVIS, Plaintiff,
v.
DAVID H. HOFFMAN, M.D., SUSAN B. PUCHINI, R.N., and THE READING HOSPITAL, Defendants.



The opinion of the court was delivered by: GAWTHROP

 Gawthrop, J.

 July 7, 1997

 This case involves the removal of the plaintiff's uterus, allegedly without her consent. Reading Hospital and Medical Center (the "Hospital") moves to dismiss or strike the plaintiff's claims for battery by lack of informed consent and for punitive damages. See Fed.R.Civ.P. 12(b)(6) and 12(f). Additionally, Nurse Susan B. Puchini moves to dismiss the Complaint against her for failure to state a claim. I shall grant the Hospital's Motion to Dismiss as to the battery claim, but deny it as to the punitive damages. I shall also deny its Motion to Strike. Nurse Puchini's motion as to the plaintiff's claim of battery I shall grant, but shall deny it as to all other claims.

 Background

 According to the Complaint, the plaintiff, Roberta Davis, a resident of the State of New York, experienced pain in her lower abdomen and consulted Dr. David Hoffman. On August 1, 1994, he diagnosed her to be suffering from a fibroid uterus and prescribed a dilation-and-curettage procedure designed to remove the fibroids. The doctor further suggested a laparoscopy and hysteroscopy to search for cancer. The doctor's nurse, Susan Puchini, conducted a pre-surgical interview with the plaintiff in which she described a video hysteroscopy, a dilation-and-curettage procedure, a resectoscopic removal of submucous fibroids, a laparoscopy, and a laser myomectomy. The plaintiff avers that she specifically informed Dr. Hoffman and Nurse Puchini that she did not consent to a hysterectomy. They responded that they would awaken her during the operation to obtain her consent before proceeding to a hysterectomy. At no time did they inform the plaintiff that the doctor intended to perform a hysterectomy. On August 8, the plaintiff underwent a procedure that resulted in a hysterectomy, during which no one awakened her to discuss and explore possible alternatives, or if there was to be a hysterectomy, to first obtain her consent. Claiming that the hysterectomy caused her substantial injuries, she brings this diversity action against Dr. Hoffman, Nurse Puchini, and the Hospital.

 Standard Under Rule 12(b)(6)

 A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the legal sufficiency of a complaint. See Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). A court must assume the truth of all well-pleaded allegations contained in the complaint and draw all reasonable inferences in the plaintiff's favor. See id. "A court may dismiss a complaint only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984).

 I. The Reading Hospital's Motion to Dismiss Claim of Battery by Lack of Informed Consent

 In response to the plaintiff's allegation that the Hospital committed battery by lack of informed consent to the hysterectomy, the Hospital asserts that Pennsylvania law places no duty on a hospital to obtain a patient's consent to an operation. It argues that Pennsylvania courts have applied the doctrine of informed consent only to physicians, not to hospitals.

 The plaintiff responds that the Hospital gratuitously undertook to obtain her consent prior to the operation. Additionally, she contends that Pennsylvania law imposes on the Hospital respondeat superior liability for the torts of its agents, Dr. Hoffman and Nurse Puchini, under the doctrine of ostensible agency. Finally, she maintains that she has stated a cause of action against the Hospital sounding in negligence under corporate negligence theory. I examine below the three purported bases for the battery claim, but find all of them legally and factually insufficient.

 A. Duty to Obtain Informed Consent

 In Friter, 414 Pa. Super. at 628-29, 607 A.2d at 1113-14 (1992), the court dealt with an unusual factual scenario. There, the hospital had contracted with the FDA to participate in a clinical study involving the implantation of experimental intra-ocular lenses. They were so experimental that they had not yet obtained FDA approval. Hence, the FDA promulgated regulations requiring the hospital to obtain informed consent, using a very detailed, five-page consent form, setting forth with particularity the possibility of the existence of unknown risks, since the lenses were still being tested. The court held that the failure to obtain informed consent, under those particular circumstances, was actionable. There is no such regulatory/experimental scenario here, and thus the exception does not apply.

 In Jones v. Philadelphia College of Osteopathic Medicine, 813 F. Supp. 1125, 1131 (E.D. Pa. 1993), the hospital itself, of its own volition, undertook to prepare a consent form, bearing the name and logo of the medical college and the hospital in question. The court concluded that although the hospital had no duty under Pennsylvania law to obtain informed consent, once it nevertheless voluntarily ...


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