Millard v. Nagle

587 A.2d 10, 402 Pa. Super. 376

• Court: Superior Court of Pennsylvania
• Decided: July 17, 1991
• Docket: 286
• Status: Published

Opinions

DEL SOLE, Judge:¹

This action was instituted by Appellants seeking to recover damages suffered as a result of an unauthorized surgical proceeding performed on Appellant, Christine Millard. Pri- or to addressing the merits of the claims raised by Appellants it is necessary to address whether this court must consider issues contained in untimely post-trial motions which the trial court elected to address.

POST-TRIAL MOTIONS

Prompted by the supreme court’s recent decisions on the subject, See, Kurtas v. Kurtas, 521 Pa. 105, 555 A.2d 804 (1989) and Commonwealth v. Sheaff, 518 Pa. 655, 544 A.2d 1342 (1988), this court has been called upon to review the question of the trial court’s authority to rule on untimely filed post-trial motions.

The supreme court in its opinion in Kurtas and its ruling in Sheaff has instructed us to consider issues raised in untimely filed post-trial motions where the trial court has elected to consider and rule on the merits of these claims. The supreme court’s action in these cases must cause us to liberally read Pa.R.C.P. 227.1(b)(2) which makes reference to the trial court’s grant of “leave” to specify additional grounds for relief. The rule provides:

(b) Post-trial relief may not be granted unless the grounds therefor,

(2) are specified in the motion. The motion shall state how the grounds were asserted in pre-trial proceedings or at trial. Grounds not specified are deemed waived unless leave is granted upon cause shown to specify additional grounds.

(c) Post-trial motions shall be filed within ten days after

(1) verdict ...

Although this rule has been interpreted to require a party seeking to file untimely original or post-trial motions to obtain leave from the trial court to do so, the supreme court has instead held that the trial court has the authority under Pa.R.C.P. 126 to disregard procedural errors. Rule 126 provides:

The rules shall be liberally construed to secure the just, speedy and inexpensive determination of every action or proceeding to which they are applicable. The court at every stage of any such action or proceeding may disregard any error or defect or procedure which does not affect the substantial rights of the parties.

In accordance with the supreme court’s decisions on the subject and the provisions of Rule 126, it is appropriate to conclude that whenever original and/or supplemental post-trial motions are filed at a time where the trial court has jurisdiction over the matter but outside the ten day requirement of 227.1, the trial court’s decision to consider these motions should not be subject to review by this court unless the opposing party has set forth an objection setting forth specific facts to demonstrate prejudice. If no objection is raised by the opposing party and the trial court rules on the merits of the issues contained in untimely filed motions, the trial court’s action will be considered an implicit grant of leave to the filing of the motions. This decision should not be subject to review by this court, and we should go on to consider the issues contained in these motions on their merits, as did the trial court. Such was the case in Kurtas, supra. There both the original and supplemental post-trial motions were untimely filed, however, no objection to timeliness was raised. The Supreme Court held that this court erred by finding matters raised in these motions waived even though the trial court decided these issues on their merits.

Where an objection to the timeliness of the post-trial motions is lodged by the opposing party, the trial court should be required to set forth its rationale for its decision to consider the issues raised in the motions on their merits, if the objection sets forth facts that demonstrate prejudice. The trial court’s decision in such an instance can be reviewed by this court to determine whether an abuse of discretion has occurred. Our review will be aided by the trial court’s explanation for its decision to disregard the late filing in the face of an allegation of prejudice which is supported by specific facts.

In this case, the original post-trial motions were timely filed. Approximately four months after the verdict these motions were supplemented by Appellant. An objection was filed by the Appellees with the trial court. The objection called the trial court’s attention to the untimely filed supplemental post-trial motions. Although the objection does state that Appellants “have not shown any cause for such delay to the prejudice of the Defendants,” the objection does not allege in what manner the Appellees were prejudiced. The trial court considered and decided the issues on their merits. In so doing, it effectively rejected the Appellees’ claim of prejudice. The trial court’s action was proper for two reasons. First, there were no specific allegations of prejudice claimed by the Appellees. Second, the trial court had before it timely filed post-trial motions which had not yet been argued or decided. In this posture, the Appellees were still within the trial court’s jurisdiction and subject to a ruling on the original motions which could have granted a new trial. The Appellees’ position in the litigation had not changed. Absent specific allegations of prejudice, this court should look to the action of the trial court in deciding the issues on their merits and do likewise.

ISSUE OF CONSENT

In concluding that the issues presented by Appellants are not waived, it becomes necessary to examine the issues at the heart of this appeal. Although Appellants’ set forth a number of issues, our decision with regard to their claim that the jury was improperly charged mandates a new trial and makes unnecessary a discussion of the remaining claims of error.

The underlying action was instituted by Christine Millard and her husband who alleged that the defendant, Dr. Nagle, removed Ms. Millard’s last remaining ovary without her knowledge or consent resulting in her undergoing an immediate state of menopause at the age of 37. Ms. Millard initially sought the aid of Dr. Nagle to have repaired two fistulae which developed in her bladder as a result of an earlier surgery. During the course of bladder repair surgery, Dr. Nagle encountered Ms. Millard’s last remaining ovary in an enlarged condition and in a location which blocked access to the bladder which he was to repair. Dr. Nagle removed the ovary and proceeded to complete repair of the bladder.

Appellants complain that the jury verdict in favor of Appellees was tainted by improper jury instructions. The following portion of the court’s charge is at issue:

[Y]ou ought to also know that as to the information that is to be divulged to the plaintiff, in this situation, it is not what she would have thought herself, given the information that perhaps should have been given, if you so find, but what a reasonable person in her situation would have felt. Let me put it another way. Let me say something else really. If you find that a reasonable person in the position of the plaintiff under all of the circumstances as you find them to be would have said to go ahead anyway, she cannot recover.

In Sagala v. Tavares, 367 Pa.Super. 573, 533 A.2d 165 (1987), Alloc. denied 518 Pa. 626, 541 A.2d 1138 (1988) the jury was presented with a similar instruction. The court charged the jury that the plaintiff had the burden of proving the following:

That if a reasonable person in [plaintiff’s] condition had known the risks and possible adverse consequences of the recommended surgery, that a reasonable person would not have undergone the surgery.

Id., 367 Pa.Superior Ct. at 579, 533 A.2d at 168.

After considering the above portion of the charge, this court ruled that it was improper and prejudicial to the plaintiff’s case and required that a new trial be awarded. The court found that it was irrelevant to consider whether a reasonable person in the plaintiff’s position would have consented to the surgery. “The primary focus of Pennsylvania law with respect to informed consent is to guarantee that a patient is supplied with all the material facts from which an intelligent choice as to medical attention may be reached, regardless of whether the patient chooses rationally.Id.

The position taken by the court in Sagala was followed in Gouse v. Cassel, 385 Pa.Super. 521, 561 A.2d 797 (1989). Alloc. granted 524 Pa. 608, 569 A.2d 1367 (1989). In Gouse the jury was presented with an interrogatory which asked it to determine if a reasonable person in the plaintiff’s condition “would have agreed to undergo the operation nevertheless.” The court ruled that the interrogatory, as written, incorrectly represented the law of Pennsylvania. Because the outcome of the trial may have been different if the improper interrogatory was not provided to the jury, a new trial was ordered. The court based its ruling on the long held principal in this Commonwealth “that a competent adult citizen should have the right to medical self-determination.” Id., 385 Pa.Superior Ct. at 524, 561 A.2d at 799. Further Judge Rowley wrote for the court:

We reaffirm our opinion in Sagala, in which we held that it is improper for a trial court to add to the law in Pennsylvania by saying that before a jury can render a verdict for a plaintiff-patient, that plaintiff must show that a reasonable person in his place, having been properly advised by his doctor, would not have consented to surgery. Id., 367 Pa. Superior Ct. at 580, 533 A.2d at 169. We refuse to eviscerate the doctrine of informed consent by predicating materiality and, thus, the mandate for disclosure of risks and alternatives, upon a factfinder’s determination that a plaintiff-patient would have declined treatment had the disclosures been made.

Id., 385 Pa.Superior Ct. at 526, 561 A.2d at 800.

The fact that the decisions in Sagala and Gouse were not available at the time of trial is of no import. It cannot be disputed that the trial court did not have the benefit of these decisions; however, Appellants preserved an objection to the charge as given and have a right to benefit from this court’s clarification of the law in this area. It should be noted that the appellants in both Sagala and Gouse also objected to a court’s charge which was given prior to the Superior court’s pronouncements on this issue. The Superi- or Court in these cases nevertheless ruled that the improper instruction was potentially prejudicial to the Appellants’ case and required the entry of an order awarding a new trial. The same result should apply here.

It has been suggested that the erroneous instruction was not reversible error because the Appellants’ case lacked the required expert testimony. We disagree with this conclusion. The claim made by each individual plaintiff will dictate to what extent expert testimony is necessary to establish each of three factors: the risks of the particular surgery, the existence of alternative methods of treatment, and the risks attendant with such alternatives. See: Jozsa v. Hottenstein, 364 Pa.Super. 469, 528 A.2d 606 (1987). Alloc. denied 518 Pa. 619, 541 A.2d 746.

In this case, Appellants failed to present any expert testimony and instead relied on the expert testimony provided by the defendant, Dr. Nagle. Dr. Nagle did not indicate that the necessity of removing the ovary was a medically recognized risk of the surgery and rather opined that the probability of it occurring was almost non-existent. The failure to offer proof that the risk encountered was an established risk with this type of surgery would ordinarily dismiss most informed consent cases. This is because the physician has no duty to inform a patient of a risk which is unknown and unforeseen. The patient in such a situation would have been provided with all the information relative to his or her decision to undergo the recommended procedure. Faced with this knowledge such a patient’s consent would be said to be informed. Such were not the facts here. Although Ms. Millard may be said to have provided informed consent to the surgery for repair to her bladder, because she was informed of the all the known risks associated with such surgery, there was no testimony to dispute her claim that she did not give her consent to the removal of her ovary—a totally separate surgical procedure with different risks and resulting effects.

“The primary interest of Pennsylvania jurisprudence in regard to informed consent is that of having the patient informed of all the material facts from which he [or she] can make an intelligent choice as to the course of treatment, regardless of whether [the individual] in fact chooses rationally.” Cooper v. Roberts, 220 Pa.Super. 260, 286 A.2d 647 (1971). Each individual has the right to make major decisions regarding his or her own body. Where, as here, consent is given for a particular surgical procedure and an unanticipated condition is found during surgery, absent an emergency situation, the physician must have the express or implied consent of the patient to extend the surgery.

In the landmark case of Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966) our Supreme Court encountered a situation involving an extended surgical procedure. In Gray there was no dispute that the plaintiff consented to surgery. The plaintiff understood that he was consenting to an exploratory operation. In his view “if the cause of his discomfort could be ascertained, ... he would then be sewn up and, in due course, advised of the nature of his malady and could then determine if he wished to undergo corrective surgery.” Id., 423 Pa. at 154, 223 A.2d at 668. The surgeon, relying on the plaintiffs signed consent to the operation, extended the surgery in an effort to correct the problem which was discovered. In considering the plaintiff’s lack of consent case, the court examined the history of the law in this area and comments by courts of different jurisdictions. After reviewing the testimony of the physician and the patient, the court affirmed the trial court’s conclusion that the issue of whether the plaintiff had consented was a question for the jury.

In Pizzalotto v. Wilson, 437 So.2d 859 (La.1983) the plaintiff consented to undergo a laparotomy, an exploratory operation designed to determine the source of lower abdominal pain experienced by the plaintiff. During the course of the surgery the doctor found extensive endometrial adhesions and reproductive organs so severely damaged that, in his opinion, rendered the patient sterile. Because he felt that the failure to remove the reproductive organs would result in pain and infection necessitating more surgery prior to the patient’s discharge from the hospital, the surgeon proceeded to remove all of the patient’s reproductive organs. The court noted that while the surgeon informed her of the risks involved and obtained her consent to the initial procedure, this did not relieve him of his duty to inform the patient of the risks involved in a hysterectomy and to obtain her consent to this different procedure. Relying on statutory authority which dictates that a surgeon commits a battery when a particular surgical procedure is undertaken without consent except in an emergency, the court examined whether implied consent or an emergency situation was present. Noting that consent must not impair a physician’s ability to handle an emergency that immediately and seriously threatens a patient’s health or life, the court found that such was not the case at hand since the patient’s life or health was not threatened by the failure to immediately remove her reproductive organs.

In Shenefield v. Greenwich Hospital Association, 10 Conn.App. 239, 522 A.2d 829 (1987) the plaintiff, a 67 year old man, consented to surgery to correct urethral bleeding caused by a tumor. The plaintiff later discovered that in addition to the proposed prostatectomy, the doctor had performed a bilateral vasectomy. The court ruled that the doctor’s failure to obtain the patient’s consent to the vasectomy supported a finding of negligence. Likewise in Lipscomb v. Memorial Hospital, 733 F.2d 332 (1984), it was found that a surgeon’s discovery of a larger-than-expected sliding hiatal hernia in surgery for removal of the patient’s gall bladder did not represent an emergency situation such that the surgeon would be justified in correcting the condition without consent. The court ruled that the physician’s claim of an emergency was a factual issue for the jury and since the jury was charged regarding an emergency and found in favor of plaintiff the court would not disturb its findings. See also: 56 ALR2d 695 (collecting cases.)

It would be quite unreasonable to stay the surgeon’s ability to aid a patient in an emergency situation because actual or implied consent to a procedure has not been obtained. However absent the exigency, the individual patient has a right to determine what will happen to his or her own body, even if that decision may appear irrational to another. Thus, it is imperative to rule that a physician does not have the authority to extend surgical procedures to areas outside the initial consent unless additional consent was expressly obtained, or was implied, or unless an emergency situation existed requiring immediate action to preserve the life or health of the patient. It must be emphasized that where an unanticipated condition occurs or an emergency situation arises requiring immediate action to preserve the patient’s life or health and it is impractical to obtain consent, the surgeon is justified in extending the operation to overcome such condition, even absent the consent of the patient.

In the present case the surgeon was operating to repair fistula in the patient’s bladder wall. To perform the corrective surgery the physician found it necessary to remove Ms. Millard’s last functioning ovary which was unexpectedly found in an enlarged condition and in a position blocking the physician’s access to the bladder. Ms. Millard asserted that she did not consent to the removal of this organ and that its removal caused her to suffer injuries for which she should be compensated. Under these circumstances the jury should be asked to determine whether consent, actual or implied, was given to Dr. Nagle to remove Ms. Millard ovary, or whether Dr. Nagle’s unanticipated discovery of the misplaced organ created an emergency in which immediate action was necessary to preserve his patient’s life or health. Absent such a finding, Ms. Millard should be entitled to recover for any damages suffered as a result of the unauthorized removal of her ovary.

Accordingly, we reverse the judgment in this case and remand the matter for a new trial. Jurisdiction relinquished.

OLSZEWSKI, J., files a concurring statement. JOHNSON, J., files a concurring and dissenting opinion in which ROWLEY, J., joins. CAVANAUGH, J., files a concurring and dissenting opinion. WIEAND, J., files a concurring and dissenting statement. TAMILIA, J., files a dissenting opinion. .

1 . This case was assigned to this writer on December 17, 1990.