In re Silicone Breast Implant Litigation

62 Pa. D. & C.4th 225, 2003 Pa. Dist. & Cnty. Dec. LEXIS 213
CourtPennsylvania Court of Common Pleas, Alleghany County
DecidedApril 24, 2003
Docketno. GD-94-14550
StatusPublished

This text of 62 Pa. D. & C.4th 225 (In re Silicone Breast Implant Litigation) is published on Counsel Stack Legal Research, covering Pennsylvania Court of Common Pleas, Alleghany County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In re Silicone Breast Implant Litigation, 62 Pa. D. & C.4th 225, 2003 Pa. Dist. & Cnty. Dec. LEXIS 213 (Pa. Super. Ct. 2003).

Opinions

WETTICK JR., J.,

This opinion addresses the issue of whether testimony of former patients of a defendant-physician as to their preoperative discussions with this physician is admissible in a breast implant medical malpractice case in which these patients are not parties to the litigation.1 In this litigation, plaintiffs are seeking recovery based on the lack of informed consent against the treating physician who performed [227]*227their implant surgeries.2 Each plaintiff will testify that she was not told about certain risks and will present expert testimony describing how these risks that were not discussed are risks of the implant surgery. For example, a plaintiff may testify that she was never told that the implants may not last for the rest of her life, and her expert may testify (1) it was widely known in the medical community at the time of the surgery that more than 20 percent of the time the implants failed and needed to be replaced or removed within five years of the surgery and (2) the manufacturers’ package inserts stated that a patient should not anticipate that the implants will last for the remainder of the patient’s life.

I.

As part of a plaintiff’s case, counsel for the plaintiff wishes to present testimony from other patients of the defendant-physician that the defendant-physician never explained the risk that the implants may fail.3 This testimony is being offered to convince the jury that a plaintiff’s testimony that she was not told that the implants may fail is credible.

I am sustaining the objections of counsel for the physicians to this testimony being offered as part of a plaintiff’s case in chief. As a matter of law, what a defendant-physician discussed with other patients (assuming that the jury would find this testimony of the [228]*228other patients to be credible) does not tend to establish that this is what the defendant-physician discussed with the plaintiff. See General Equipment Manufacturers v. Westfield Insurance Company, 430 Pa. Super. 526, 549, 635 A.2d 173, 185 (1993) (“the law will not consider evidence that a person has done a certain act at a specific time as probative of a contention that he has done a similar act at another time.” (citations omitted)). Also, while evidence of the habit of a person is admissible to prove that the conduct of the person on a particular occasion was in conformity with the habit (Pa.R.E. 406), the testimony of fewer than virtually all of a sizeable number of the patients of a physician is not sufficient to establish a habit of the physician.

II.

As part of the defense of the case, counsel for the defendant-physician will ask the defendant-physician what he or she told the plaintiff regarding the risks upon which the plaintiff bases her lack of informed consent claim. The physician may offer the following testimony:

Alternative 1

I remember my discussions with the patient (or my recollection has been refreshed through a review of my notes). I explained to the patient that the implants may fail or wear out. If this occurs, additional surgery will be necessary.

Alternative 2

The defendant may testify that at the time I performed the surgery, I recognized that each patient needed to know [229]*229that there was a risk of further surgery because the implants may fail or wear out. However, I am not a “check-list” doctor. My discussions with my patients begin with why the patient wants the implants. I learn from the patient what she already knows; I focus on what she may not know. These are give-and-take discussions. I do not have a specific recollection of my conversations with the plaintiff, so I cannot tell you today exactly what we discussed. It would depend on what she already knew and what she needed to know.

Alternative 3

I have no specific recollection of my discussions with the plaintiff. However, at the time I treated the plaintiff, in each and every case I always discussed various risks associated with the implant procedure. One of these risks that I always discussed was the possibility of further surgery because the implants may fail or wear out.

For each of these three alternatives, the plaintiffs in the implant litigation will seek to offer, as rebuttal testimony, the testimony of other patients that the defendant-physician did not explain these risks to them.

As to the first alternative (the physician testifies that he or she remembers the discussions with the plaintiff), the testimony of the other patients concerning their discussions with the defendant-physician is inadmissible. The apparent purpose for the testimony is to convince a jury that the defendant’s testimony that he or she remembers discussing this risk that the implants may need to be removed or replaced is inaccurate. A question for the jurors to decide is whether they believe the physician’s [230]*230testimony that he or she remembers telling the plaintiff that the implants may need to be removed or replaced because they may fail. In answering this question, the jury may not consider what the defendant-physician did in treating other patients because of the principle of law which I previously discussed that the law will not consider evidence that a person has done or failed to do a specific act at a specific time as prohibitive of a contention that this person has acted or failed to act in a similar manner at another time.

I reach the same result as to Alternative 2 where the physician testifies that he or she does not remember the discussions with the plaintiff but would have told the plaintiff of the risk that the implants may fail if he or she believed that the plaintiff was not already aware of this risk. Since the defendant is not testifying that he or she discussed this risk with the plaintiff, evidence of discussions with other patients is inadmissible under the same principle that what a person did at a specific time is not probative of a contention that this person has done a similar act at another time.

I reach a different result with respect to the third alternative where the physician testifies that he or she always discusses this risk with the patient. In this situation, the defendant-physician is asking the jury to reject the plaintiff’s testimony that she was not told of this risk on the basis of the defendant-physician’s testimony as to what he or she always does. The jury must reject the plaintiff’s testimony that she was not told of the risk if it accepts the physician’s testimony that this is a risk that he or she always discusses. However, this testimony of [231]*231the physician cannot be a basis for rejecting the plaintiff’s testimony if the jury would find that there were any instances in which the physician failed to discuss these risks with any other patient. Thus, testimony of another patient that the defendant-physician performed the same procedure without discussing the risk that the implants may fail is admissable.

In this situation, the testimony of the other patient is not being offered to bolster the plaintiff’s testimony as to what the defendant-physician discussed with the plaintiff.

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Related

General Equipment Manufacturers v. Westfield Insurance
635 A.2d 173 (Superior Court of Pennsylvania, 1993)

Cite This Page — Counsel Stack

Bluebook (online)
62 Pa. D. & C.4th 225, 2003 Pa. Dist. & Cnty. Dec. LEXIS 213, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-silicone-breast-implant-litigation-pactcomplallegh-2003.