O'Brien v. Jaeger
35 Pa. D. & C.5th 16
Pennsylvania Court of Common P...2013Background
- Plaintiffs allege professional negligence in surgery to Kevin O’Brien’s arm, including lack of informed consent by Dr. Jaeger.
- Plaintiffs contend Jaeger failed to explain alternatives and risks of surgery to O’Brien.
- Defendants moved for partial summary judgment arguing an executed consent form eliminates material factual disputes.
- Plaintiffs argue Jaeger misinformed about risks of refusing surgery and that the form’s boilerplate risks were not tailored to this procedure.
- Statutory framework requires informed consent, describing procedure, risks, and alternatives under 40 P.S. §1303.504(b)-(c).
- Court finds genuine issues of material fact exist regarding adequacy of information conveyed and risk disclosure specific to the procedure.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether form precludes triable consent issue | O’Brien not adequately informed despite form; misstatement about alternatives possible. | Executed form eliminates genuine issues of material fact. | Denied partial summary judgment; issues of fact remain. |
| Whether Jaeger misinformed on alternatives to surgery | Jaeger told of 30% grip loss if surgery declined, which was false/misleading about alternatives. | No proof that information about alternatives was inaccurate or material. | Issue for trial; genuine factual dispute exists. |
| Whether the risks of the procedure were adequately communicated | Consent form lacked specific, procedure-tailored risks; boilerplate insufficient. | Form language covers risks and alternatives per statute. | Issue for trial; not entitled to SJ on adequacy of risks disclosure. |
| Whether expert/recall evidence creates material fact about risk disclosure | Expert opines the risk of nerve injury and other procedure-specific risks were not adequately conveyed. | Expert testimony not sufficient to create factual dispute about consent. | Issue for trial; material facts remain regarding communication of risks. |
Key Cases Cited
- Sphere Drake Ins. v. Philadelphia Gas Works, 782 A.2d 510 (Pa. 2001) (summary judgment requires no genuine issues of material fact)
- Washington v. Baxter, 719 A.2d 733 (Pa. 1998) (view record in favor of non-moving party on material facts)
- Nogowski v. Alemo-Hammad, 691 A.2d 950 (Pa. Super. 1997) (goal of informed consent doctrine is to provide material information)
- Bey v. Sacks, 789 A.2d 232 (Pa. Super. 2001) (informed consent doctrine described in relation to statutory standard)