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12/24/97 BARBARA MORGAN AND JOSEPH MORGAN v. JOHN

December 24, 1997

BARBARA MORGAN AND JOSEPH MORGAN, HER HUSBAND, APPELLANTS,
v.
JOHN A. MACPHAIL, M.D., APPELLEE. KATHLEEN BRESLIN WALKER AND JAMES WALKER, APPELLANTS, V. ALBERT ROSE, D.P.M., AND CURT D. MILLER, M.D, APPELLEES.



Appeal from the Order of the Superior Court, dated March 15, 1996, at No. 1019 PGH 1995, affirming the Order of the Westmoreland County Court of Common Pleas entered May 9, 1995, at Civil Division 7686 of 1990.

Appeal from the Order of the Superior Court, dated December 28, 1995, at No. 4044 PHL 1994, affirming the Order of the Delaware County Court of Common entered October 31, 1994, Civil Division, No. 92-13877.

Justice Castille. Mr. Justice Nigro files a Dissenting opinion.

The opinion of the court was delivered by: Castille

OPINION OF THE COURT

JUSTICE CASTILLE

DECIDED: DECEMBER 24, 1997

The sole issue before this Court in these consolidated appeals is whether the doctrine of informed consent should be expanded to include the non-surgical administration of medication where the claimed injury results from the method and location of administration of the medication rather than the medication itself. Because we find that the doctrine of informed consent applies only to surgical procedures, we affirm the Superior Court holdings in both cases.

A. Morgan

On October 20, 1988, appellant Barbara Morgan fell and fractured two ribs. The pain of the injury did not subside with time; therefore, Mrs. Morgan sought treatment from Dr. MacPhail. On December 14, 1988, Dr. MacPhail performed an intercostal nerve block *fn1 in an effort to alleviate Mrs. Morgan's pain. Later that day, Mrs. Morgan experienced weakness and shortness of breath and telephoned appellee. She then reported to the hospital emergency room where she learned that she suffered a right pneumothorax *fn2 as a result of the intercostal nerve block procedure.

Mrs. Morgan and her husband filed suit against Dr. MacPhail claiming that he failed to obtain informed consent prior to performing the procedure. Dr. MacPhail filed preliminary objections in the nature of a demurrer arguing that informed consent is necessary only for surgical or operative procedures, and the trial court granted a demurrer. Mrs. Morgan appealed to the Superior Court, and the Superior Court affirmed.

B. Walker

On February 12, 1991, appellant Kathleen Breslin Walker began treatment with appellee Albert Rose, D.P.M., for complaints of pain in her right heel. Dr. Rose injected a long-acting steroid into Mrs. Walker's right superficial adventitious bursa. *fn3 On April 15, 1991, Dr. Rose administered a second steroid injection into Mrs. Walker's right superficial adventitious bursa. Mrs. Walker's pain had not subsided by June 6, 1991 when she consulted appellee Curt Miller, M.D., an orthopedic surgeon. He diagnosed "Achilles tendonitis" and treated the condition. In August of 1991, Mrs. Walker's Achilles tendon ruptured. Dr. Miller surgically repaired the tendon, and Mrs. Walker developed a skin slough over the incision behind her right heel. *fn4

Mrs. Walker and her husband filed suit against Drs. Rose and Miller claiming that Dr. Rose failed to obtain informed consent prior to injecting the steroids into Mrs. Walker's right superficial adventitious bursa and that Dr. Miller failed to inform Mrs. Walker that she could develop a skin slough as a result of the surgery. Following a three-day trial, the jury returned a defense verdict. Specifically, the jury found that Dr. Rose was negligent, but his negligence was not a substantial factor in causing the injury. The jury also determined that no reasonable person in Mrs. Walker's position would have considered the risk of a skin slough in her decision to undergo the surgery and, therefore, found in favor of Dr. Miller. Post-trial relief was denied. Mrs. Walker appealed to the Superior Court, and the Superior Court affirmed.

It has long been the law in Pennsylvania that a physician must obtain informed consent from a patient before performing a surgical or operative procedure. See Sinclair v. Block, 534 Pa. 563, 633 A.2d 1137 (1993); Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966). Informed consent, ...


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