Malloy v. Shanahan

421 A.2d 803, 280 Pa. Super. 440, 1980 Pa. Super. LEXIS 2997

• Court: Superior Court of Pennsylvania
• Decided: August 22, 1980
• Docket: 1526
• Status: Published

Opinions

WATKINS, Judge:

This is an appeal from the order of the Court of Common Pleas, Civil Division, of Chester County, which denied appellant’s motion for a new trial.

This is a medical malpractice suit brought in trespass and assumpsit but tried only in trespass. The jury returned a verdict in favor of the doctor-appellee and against the appellants.

The record indicates that the appellant, Mrs. Helen Malloy, was suffering from what was diagnosed as rheumatoid arthritis and sought appellee’s help as the result of a referral from an arthritis clinic.

After examination and diagnosis, relief from the pain and swelling was sought through use of aspirin, Butazolidin and later Indocin . which treatment was discontinued because of the effect of the drugs on the appellant (upset stomach, etc.).

The appellee then prescribed Chloroquine in August of 1958 which gave the appellant relief. The prescription was for 100 tablets, 250 milligrams per tablet to be taken one tablet per day. The same prescription was given to the appellant in October, 1965 and January, 1967.

The prescription as given made no allowance for refilling and was for a drug which was not legally refillable without prescription. The appellant, however, got two pharmacies to continually refill the prescription and she took one tablet a day from 1959 to 1971 without the knowledge or consent of the appellee.

As a result of the prolonged use of the drug, the appellant developed retinopathy and became partially blind.

The appellee testified that he told the appellant of the possible side effects and toxicities associated with the use of the drug. The appellant denied that this was true.

The sole question on appeal is whether a doctor who renders treatment to a patient consisting of the therapeutic administration of a drug with known potentially dangerous side effects is obligated to secure the patient’s informed consent to the treatment by disclosing to the patient all the facts, risks and alternatives that a reasonable person, in the situation which the doctor knew or should have known was that of the patient, would deem significant in making a decision to undergo the recommended treatment and should the court below so instruct the jury in the instant case?

Such informed consent is required of patient, absent an emergency, prior to a surgical operation. Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963); Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966). However, this has not been extended to therapeutic treatment, which is usually an ongoing treatment upon examination by the treating physician, where any change of condition can be diagnosed and controlled.

As the court below said;

The doctrine of informed consent has been applied only to suits involving surgical operations or procedure, wherein ‘an operation without the patient’s consent is a technical assault’: Gray v. Grunnagle, 423 Pa. 144, 155 [223 A.2d 663] (1966). Questions of consent to medical treatment constitute ‘an area basically covered by contractural concepts’: Cooper v. Roberts, 220 Pa.Super. 260 [286 A.2d 647] (1971), 220 Pa.Super. at 268 [286 A.2d 647], The said doctrine has never been extended to the type of malpractice action brought herein and this Court will no(t) do so. As Cooper v. Roberts, supra, pointed out, 220 Pa.Super. at 268 [286 A.2d 647]:

“However, there is a basic distinction between the normal malpractice suit, where the gist is whether the physician failed to conform to accepted medical practice, and ‘informed consent’ cases, where the salient question is whether the patient made an effective assent to treatment, and where determining whether there was any dereliction of professional duty on the part of the physician is only one facet in the resolution of the ultimate issue.”

In any event, in this case the appellant visited the appellee only once between 1959 and 1971 and did not give him the opportunity to use his expertise in discovering any side effects and controlling them.

The proximate cause of her malais was her independent prolonged use of the drug and the pharmacies which sup-, plied them.

Order affirmed.

PRICE, J., concurs in the result.1 HOFFMAN, J., files a dissenting opinion.