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Castille, C.J., Saylor, Eakin, Baer, Todd, Mccaffery, Orie Melvin v. Lankenau Hospital

August 20, 2012


Appeal from the Order of the Superior Court dated August 10, 2010, at 2490 EDA 2009, affirming the Order of the Montgomery County Court of Common Pleas, Civil Division, dated July 23, 2009, at No. 03-21035.

The opinion of the court was delivered by: Mr. Justice Baer

ARGUED: November 29, 2011


Appellants seek a new trial in this medical battery/lack-of-consent case on the ground that the trial court erroneously instructed the jury on the technical elements of battery, particularly the intent to cause a harmful or offensive contact. They further maintain that the charge was erroneous because it instructed the jury that Appellants/Plaintiffs were required to prove that the surgeon who performed the allegedly unauthorized operation did so with the intent to harm. Viewing the jury charge in its entirety, we conclude that it clearly and accurately set forth the law. Contrary to Appellants' contentions, the jury charge did not require proof that the surgeon performed the operation with the intent to harm. Accordingly, we affirm the order of the Superior Court, which affirmed the trial court's entry of judgment on the verdict in favor of Appellees.

On March 29, 2004, Dr. Denise Cooper and her daughter Alysse (collectively, "Appellants") commenced the instant action by filing a complaint against various physicians and a hospital (collectively, "Appellees"). The complaint alleged, inter alia, that the physicians committed a battery when they delivered Dr. Cooper's baby via a Cesarean section after twenty-seven weeks of pregnancy, notwithstanding that she had refused consent for such procedure. A two-week jury trial was conducted, during which extensive testimony was offered by all parties.

The evidence established that on November 4, 2001, Dr. Cooper, herself a pediatric cardiology anesthesiologist, was twenty-seven weeks pregnant with her daughter, Alysse, when she fell down some stairs in her home. Dr. Cooper called her obstetrician's office, Appellee Main Line Health, Inc., and spoke to Appellee Dr. Eric Carlson, who advised her to go to Appellee Lankenau Hospital for tests. Once Dr. Cooper arrived, a nurse examined her with both an ultrasound and a fetal heart monitor. Finding the fetal heart rate to be lower than normal, the nurse called the on-duty obstetrical resident, Appellee Dr. Sharon Nemser-Rudo, to assist.

Upon her own examination with the same instruments, Dr. Nemser-Rudo concluded that the baby was suffering from a life-threatening bradycardia (slow heart rate), and, after consulting with another obstetrical resident, Appellee Dr. Benjamin Montgomery, determined that an emergency Cesarean section was necessary. Dr. Cooper, being a physician herself, believed her baby could be experiencing a relatively benign arrhythmia, which would not require surgical intervention. When Dr. Nemser- Rudo relayed the facts and asked the opinion of Dr. Carlson, Dr. Cooper's obstetrician, he advised Dr. Nemser-Rudo to proceed with the surgery.

Conflicting testimony was presented regarding what occurred when Dr. Nemser-Rudo returned to discuss the matter again with Dr. Cooper. Dr. Nemser-Rudo testified that Dr. Cooper ultimately gave her verbal consent for the Cesarean section. Dr. Cooper, however, testified that she never gave consent for the procedure, and, in fact, expressly refused to assent. It is undisputed that Dr. Nemser-Rudo performed the Cesarean section shortly thereafter, and delivered Alysse.

Prior to deliberations, with regard to their medical battery/lack-of-consent claim, Appellants requested the standard jury charge for lack of informed consent, set forth infra at n.3, which focuses primarily on the nature of consent given by the patient, as opposed to whether any consent was given at all, and requires that the physician explain the risks that a reasonably prudent patient would need to know to make an informed decision. See Gouse v. Cassel, 615 A.2d 331, 334 (Pa. 1992) (providing that to obtain informed consent for a surgical procedure, the physician must "advise the patient of those material facts, risks, complications and alternatives to surgery that a reasonable person in the patient's situation would consider significant in deciding whether to have the operation") (emphasis omitted).*fn1

Because Appellants' medical battery/lack-of-consent claim was based on an alleged refusal to give any consent, and did not allege the physician's failure to secure informed consent, the trial court denied the charge pertaining to informed consent, and instead instructed the jury on lack of consent as follows:

A physician must obtain a patient's consent to perform surgery. Consent may be verbal or written. Consent is not required in an emergency. However, even in an emergency[,] surgery should not be performed if the patient refuses consent.

A physician's performance of surgery in a non-emergency without consent, or the performance of surgery in an emergency when the patient has refused consent is considered a battery under the law. A battery is an act done with the intent to cause a harmful or offensive contact with the body of another, and directly results in the harmful or offensive contact with the body of another.

If you find the defendant Dr. Nemser[-Rudo] operated on the plaintiff in a non-emergency without consent, or in an emergency where the plaintiff refused consent, then you must find that the defendant Dr. Nemser[-Rudo] committed a battery; otherwise no battery occurred.

A physician who commits a battery on a patient is liable for all the injuries caused by that surgery or treatment regardless of whether the surgery is performed or the treatment is administered with proper skill and care. Damages are recoverable for this unauthorized touching regardless of whether actual injury occurs.

N.T. 5/15/09, Vol. IX, at 51-52.

Appellants objected to this instruction, contending that it was an improper statement of the law because the "intent to cause harm" element of the intentional tort of battery should not have been included in a charge on lack of consent for a surgical ...

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