Duttry v. Patterson

741 A.2d 199, 1999 Pa. Super. 250, 1999 Pa. Super. LEXIS 2933
CourtSuperior Court of Pennsylvania
DecidedOctober 5, 1999
StatusPublished
Cited by6 cases

This text of 741 A.2d 199 (Duttry v. Patterson) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Duttry v. Patterson, 741 A.2d 199, 1999 Pa. Super. 250, 1999 Pa. Super. LEXIS 2933 (Pa. Ct. App. 1999).

Opinions

DEL SOLE, J.:

¶ 1 This is an appeal from a judgment entered following a jury verdict in favor of defendants-Appellees in a matter brought by Appellants based upon negligence and a failure to obtain informed consent. We vacate the judgment and remand for a new trial on Appellants’ informed consent claim.

¶2 Appellant, Cloma Duttry, was under the care of Lewis T. Patterson, M.D. and Patterson Surgical Associates when she underwent surgery for esophageal cancer. Appellants1 claim that a leak later occurred along the surgical site which developed into a rupture requiring emergency surgery. They assert that as a result Mrs. Duttry developed Adult Respiratory Disease Syndrome with permanent damage to her lungs, rendering her unable to work.

¶ 3 Appellants brought an action against Dr. Patterson, Patterson Surgical Associates, and the Polyclinic Medical Center. Upon stipulation of all parties Polyclinic Medical Center was dismissed from the case. Appellants’ battery claim for lack of informed consent, and negligence against Dr. Patterson proceeded to trial, as did their claim against Patterson Medical Center based upon respondeat superior. The jury returned a verdict in favor of the defendants. Appellants filed post-trial motions, which were denied, and this appeal followed.

¶4 At issue in this case is the trial court’s refusal to permit Appellants to offer documentary and testimonial evidence relating to the actual number of esophageal surgeries performed by Dr. Patters on before he operated on Mrs. Duttry. In support of their informed consent claim Appellants made an offer of proof that Mrs. Duttry would testify she questioned Dr. Patterson about his experience and he advised her he had performed this particular procedure on an average of once a month. In fact, they allege he had performed it only five times in the preceding five years.

¶ 5 The trial court ruled this information was irrelevant to the doctrine of informed consent and excluded evidence re[201]*201lating to the doctor’s experience and the misinformation imparted to Appellants about his surgical experience. Both the trial court and Appellees claim that following the case of Kaskie v. Wright, 408 Pa.Super. 384, 589 A.2d 213 (1991) a physician is not required to inform a patient of the number of times the physician has performed a specific procedure. They claim that to do so would expand existing law to include personal characteristics of the surgeon. As further support for the trial court’s ruling Appellees contend that Appellants did not offer any medical expert testimony that Dr. Patterson’s level of inexperience with this type of surgery presented a material risk with respect to the surgery.

¶ 6 Upon review we find no support for the trial court’s ruling. We conclude that this information was relevant under the facts of this case and that medical expert testimony was unnecessary in this battery claim.

¶ 7 An agreement between a physician and patient is contractual in nature and for consent to be valid, both parties must understand the nature of the undertaking and the possible, as well as, the expected results. Gouse v. Cassel, 532 Pa. 197, 615 A.2d 331 (1992). Although a physician need not disclose all known information, the physician is required to “advise the patient of those material facts, risks, complications and alternatives to surgery that a reasonable person would consider significant in deciding whether to have the operation.” Id. at 334. The question thus becomes whether a reasonable person who questions a doctor about the doctor’s personal qualifications and experience, when making a decision whether to have this individual perform a procedure, would consider this information significant in making the decision. We conclude that a reasonable person would consider it significant and an individual surgeon who provides false information when so questioned would be subject to a claim of lack of informed consent.

¶ 8 While the courts of this Commonwealth have not considered this exact question, in Johnson v. Kokemoor, 199 Wis.2d 615, 545 N.W.2d 495 (1995), the Supreme Court of Wisconsin reviewed a case where the plaintiff alleged that her surgeon did not obtain her informed consent when operating to clip an aneurysm. The plaintiff testified that she questioned the defendant regarding his experience and he replied that he had performed the surgery “several” times. When the plaintiff asked what he meant by “several,” he replied, “dozens.” Id. at 498. In fact, however, the defendant had relatively limited experience with aneurysm surgery and had never operated on a large basilar bifurcation aneurysm such as the plaintiffs. The court ruled that a reasonable person in the plaintiffs position would have considered this information of the defendant’s relative lack of experience in performing this specific surgery to have be material in making an intelligent and informed decision about the surgery. Accordingly it found that evidence of the defendant’s lack of experience was properly admitted to support the plaintiffs informed consent case.

¶ 9 We too conclude that individuals who question their surgeons prior to surgery about their competence, experience and expertise are seeking information that is highly relevant to them in making an informed decision about their surgeon. A particular surgeon’s skill, which many times is borne by virtue of experience, is important to those making a choice of their personal surgeon. Certainly one who questions a physician about these matters deems the answers important and is entitled to truthful and accurate information. A surgeon who, when answering a patient’s inquiries, misinforms the patient about this information and misleads the patient into believing that the hands of an experienced surgeon will be performing [202]*202the operation, does not have the true consent of that patient.

¶ 10 We are not implying that surgeons must inform all their patients about their educational background and experience, but where such information is sought, the patient deems it very relevant and truthful answers must be given in order to obtain valid consent. The trial court cites Kaskie v. Wright, supra, in support of its ruling that this information is irrelevant. There the appellants claimed their informed consent was lacking because they had not been told prior to their son’s operation that the surgeon was an alcoholic and unlicensed to practice medicine. The court considered this claim in view of the defendant’s statute of limitations defense, but in so doing commented that it refused to expand the doctrine of informed consent to absent information which consists of facts personal to the treating physician. Our ruling does not differ with these comments. It is not necessary in every case for a physician to disclose matters such as experience, credentials or any personal problems. However, where a patient seeks to discover this information by asking the physician these direct questions, that patient deems such information important in the very personal decision of which physician to choose, and a physician who obtains “consent” by providing misinformation, does not have the true consent of the patient.

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Related

Molinaro v. Ramoska
6 Pa. D. & C.5th 398 (Philadelphia County Court of Common Pleas, 2006)
Duttry v. Patterson
771 A.2d 1255 (Supreme Court of Pennsylvania, 2001)
Howard v. University of Medicine and Dentistry
768 A.2d 195 (New Jersey Superior Court App Division, 2001)
Oven v. Pascucci
46 Pa. D. & C.4th 506 (Lackawanna County Court of Common Pleas, 2000)
Duttry v. Patterson
741 A.2d 199 (Superior Court of Pennsylvania, 1999)

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Bluebook (online)
741 A.2d 199, 1999 Pa. Super. 250, 1999 Pa. Super. LEXIS 2933, Counsel Stack Legal Research, https://law.counselstack.com/opinion/duttry-v-patterson-pasuperct-1999.