McSorley v. Deger

905 A.2d 524, 2006 Pa. Super. 200, 2006 Pa. Super. LEXIS 1681, 2006 WL 2109509
CourtSuperior Court of Pennsylvania
DecidedJuly 31, 2006
DocketNo. 225 EDA 2005
StatusPublished
Cited by9 cases

This text of 905 A.2d 524 (McSorley v. Deger) 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
McSorley v. Deger, 905 A.2d 524, 2006 Pa. Super. 200, 2006 Pa. Super. LEXIS 1681, 2006 WL 2109509 (Pa. Ct. App. 2006).

Opinion

OPINION BY

TODD, J.:

¶ 1 In this medical malpractice and informed consent case, Jacqulynn M. McSor-ley appeals the judgment entered in favor of Randolph B. Deger, M.D., Albert El-Roeiy, M.D., Edward R. Russell, M.D., General Surgery Associates, Health Access Network, and Crozer Chester Medical Center following the jury verdict against her. We affirm.

¶ 2 The trial court provided the following summary of the factual background of this case:

This is a medical malpractice action stemming from a surgical procedure that occurred on January 22, 1997. On that date [McSorley] entered [Appellee] Crozer Chester Medical Center under [527]*527the care of [Appellees] Randolph B. De-ger, M.D. and Albert El-Roeiy, M.D. for a diagnostic laparoscopy to evaluate a cystic right ovary. [McSorley] underwent a laparotomy, which was performed by Dr. Deger and Dr. El-Roeiy. During this procedure, Dr. Deger noted [McSorley’s] terminal ileus to appear markedly abnormal and Dr. Deger therefore called for an intraoperative consult with [Appellee] Dr. Edward Russell.
Dr. Russell observed [McSorley] had a very abnormal small bowel that showed severe distortion, puckering, and alternating thickening and thinning. Dr. Russell made the decision to remove the abnormal portion of [McSorley’s] small bowel. In Dr. Russell’s opinion, the abnormality could have been caused by cancer, endometriosis, Crohn’s disease, or a congenital duplication. A pathologist reviewed a specimen removed in surgery and described the specimen as grossly abnormal piece of small intestine that was 31 cm long with numerous serosal adhesions that was alternately narrowed and dilated along its entire length. The pathologist subsequently determined that the appearance of [McSorley’s] bowel tissue was caused by scar tissue....
After her discharge from the hospital, [McSorley] developed chronic diarrhea and other related complaints, which she contends, are a result of the bowel resection performed by [Appellee] Dr. Russell. [McSorley] alleges that medications prescribed for the treatment of her diarrhea were either unhelpful or had unacceptable side effects.

(Trial Court Opinion, 9/26/05, at 1-2.)

¶ 3 McSorley sued Appellees in June 1998, alleging battery, negligence, lack of informed consent, and vicarious liability. Dr. El-Roeiy, Crozer Chester Medical Center, and Health Access Network filed a motion for summary judgment, which was granted on May 18, 2000, and they were dismissed from the case. In response to his third motion for summary judgment, Dr. Deger was dismissed from the case by order dated January 4, 2005. The basis for the grant of summary judgment with respect to each of these then-defendants was McSorley’s failure to produce expert testimony.1

¶ 4 The case proceeded to trial against Dr. Russell and General Surgery Associates, on theories of negligence and battery. After a three-day trial in January 2005, the jury found in favor of Dr. Russell and General Surgery Associates. The trial court denied McSorley’s post-trial motions, and this timely appeal followed.

¶ 5 On appeal, McSorley presents the following issues for our consideration, which we have reordered:

1. Did the lower court err in denying [McSorley’s] motion for a directed verdict against Appellee Russell and General Surgery Associates?
2. Did the lower court err in dismissing [McSorley’s] case against Appellees De-ger, El-Roeiy, Crozer Chester Medical Center and Health Access Network on motions for summary judgment?
3. Did the lower court err in its instruction to the jury regarding informed consent?
4. Did the lower court err in refusing to allow [McSorley] to cross-examine Appellee Russell on the scope of the consent?

(Appellant’s Brief at 6.)

¶ 6 McSorley first asserts that the trial court erred in denying her motion for [528]*528a directed verdict against Dr. Russell and General Surgery Associates on the issue of informed consent. She asserts that, as a matter of law, Dr. Russell exceeded the scope of her surgical consent when he performed the bowel resection, that this procedure was an unauthorized extension of the diagnostic laparoscopy. We disagree.

¶ 7 Our standard of review with respect to the denial of a directed verdict is as follows:

[W]e may only ask whether the trial court’s decision was an abuse of discretion or an error of law that controlled the outcome of the case. The trial judge, however, may only grant a directed verdict motion where “the facts are clear and there is no room for doubt.” In so determining, the trial court “must consider the facts in the light most favorable to the nonmoving party and must accept as true all evidence which supports that party’s contention and reject all adverse testimony.”

Faherty v. Gracias, 874 A.2d 1239, 1246 (Pa.Super.2005) (citations omitted).

¶ 8 Our Supreme Court has explained the doctrine of informed consent and its related cause of action as follows:

In Smith v. Yohe, 412 Pa. 94, 194 A.2d 167 (1963), we stated: “The principles of law applicable to this phase of the litigation are clear. Such principles are: (a) where a patient is mentally and physically able to consult about his condition, in the absence of an emergency, the consent of the patient is ‘a prerequisite to a surgical operation by his physician’ and an operation without the patient’s consent is a technical assault; (b) the burden is on plaintiff to prove ‘that the operation performed, or substantially that operation, was not authorized by him.’ ” Id. at 106, 194 A.2d at 174 (citations omitted). Later we held that for a consent to be effective it must be informed and knowledgeable. Sec Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966).
In order for a consent to be considered informed it must be shown that the patient was advised of “those risks which a reasonable man would have considered material to his decision whether or not to undergo treatment.” Sagala v. Tavares, 367 Pa.Super. 573, 578, 533 A.2d 165, 167 (1987) alloc. denied, 518 Pa. 626, 541 A.2d 1138 (1988). The determination of what is material is a jury question, and in making that determination the jury must be supplied with expert information as to the nature of the harm attendant to the procedure, and the probability of that harm occurring. Thereafter, the jury must determine whether the type of harm and the probability of its occurrence is information which a reasonable patient would consider in deciding whether to undergo the medical procedure. Id. at 578, 533 A.2d 165, 533 A.2d at 167; see also, Gray v. Grunnagle, supra.
In order for a plaintiff to state a cause of action under this theory he or she need not establish that the unauthorized surgery was done negligently.

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Cite This Page — Counsel Stack

Bluebook (online)
905 A.2d 524, 2006 Pa. Super. 200, 2006 Pa. Super. LEXIS 1681, 2006 WL 2109509, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mcsorley-v-deger-pasuperct-2006.