*1 of defendant pleading counsel tbe writ- guilty to tbe indictments ing crimes well robbery adult and every juvenile known alike.
For tbe Court records disclose that on the example, Attorney’s District Bills Fairman Indictment, signed “And following printed statement: now to wit: The A.D. day pleads second the defendant January, action guilty, waiving jury to counsel. grand right Richard J. Fairman.”
Tbe decision of tbe robber majority that is en- after titled, years guilty five bis nearly a new plea, trial tbe conjectural basis doubt which flies in teeth of tbe clear record waiver makes counsel, the protection of and Justice to Society travesty.
For I dissent. vigorously these reasons,
Gray, Grunnagle. Appellant, *2 Mus J.,C. Before 1965. October Argued Bell, Eagen, Roberts, O’Brien m Cohen, Jones, anno, JJ. refused
reargument 1966. December *3 him
Franlc U. Gubbon, W. with Jr., Joseph Esper, appellant. for R.
Bruce Martin, appellee. Francis E. and Hamilton Shields, Pepper, and for amicus curiae. Scheetz,
Opinion by Mr. Justice June 1966: O’Brien, trespass of This action brought the Court Common of of Pleas Allegheny County, Pennsylvania, the Charles Gray, plaintiff-appellant, alleging he suffered and injuries, damages disabilities result- from negligent ing surgery, diagnosis, abandon- failure to secure and ment, necessary consent by Jerome Grunnagle, M.D. defendant, The case was judge jury. before a During tried appel- trial, the trial abandonment, lant withdrew the of charge jury to the could go ruled the case judge negligent of of diagnosis either negligent issues solely and submitted the case to the jury surgery, of issue The returned a verdict of consent. jury defendant for the which $80,000 following plaintiff, trial. n.o.v. for a new filed a motion for judgment filed The with the plaintiff, although verdict, satisfied if a motion for contingent asking a new trial, neg- new trial awarded to question defendant, performance both and the ligence, diagnosis be submitted jury. to the surgery, These banc. argued motions were before a court en The court en banc granted judgment n.o.v. overruled plaintiff’s contingent motion for a new trial, and it is from entry judgment n.o.v. and overruling appellant’s trial new motion that appeal is taken.
The B. Charles from appellant, Gray, paralyzed now the waist had experienced down, some difficulty his left his leg during army service, covered period of approximately from 1941 years, through discharge 1945. This condition slowly progressed until early at which time there some muscular left atrophy The leg. left foot would invert occasional during periods of fatigue and would him cause some difficulty.
Mr. Gray originally examined by a Dr. Blak- an orthopedic surgeon of ley, Pittsburgh, Pennsylva- *4 on at January which nia, 4, 1960, hospitalization time recommended. Subsequently, Mr. Gray was ad- mitted the Allegheny General Hospital on January at which time he 18, 1960, signed a Consent to Opera- which reads as follows: tion, Chas. B. I, Gray “Whereas, at residing /s/ No.
- -- — -— Street, (City in the State) and now Allegheny General Hospital of of full Pa.; Pittsburgh, age, have been informed by an opinion in their hospital of said the physicians treatment proper for the necessary me is on and said to the same I hereby of illness. my whatever employ authorized hereby are physicians their using necessary, deem procedure they operative and judgment. best skill hospital, said hand my seal, “Witness, day 18th Pennsylvania, City Pittsburgh, A.D. 1960.
Jan., - Charles “Attest: /s/ /s/ B. Gray.” B. Gray Charles is signed
This instrument Helen Miladin. witnessed one Dr. Dr. in the defendant-appellee, called Blakley who specialist neurosurgery, F. a Jerome Grunnagle, a reaching 19, 1960, examined January thoracic, or tentative lesion diagnosis dorsal, tumor in the sense which was either cord, disc, either benign malignant neoplasm, degeneration, probably combination of which he thought them, in the T-10 area. T-9, T-8,
As result his tentative Dr. Grun- diagnosis, ordered four to be nagle tests conducted. However, not all those ordered were carried out. those Among performed ordered and was a and based myelogram, upon the of this findings Dr. test, wrote Grunnagle to Dr. that he favored Blakley lamin- exploratory Dr. ectomy, Blakley agreed. Mr. Gray was then transferred a patient from Dr. Blakley’s to Dr. care and the Grunnagle, operation was per- on Mr. formed Dr. Gray by Grunnagle January 1960. Grunnagle, testimony, discussed op- performed
eration which he on Mr. Gray. He first de- components scribed the various of the spinal column. is a cord surrounded aby This fine, transparent mem- the “arachnoid called brane mater”. There is then an elastic outer fibrous membrane called “dura mater”. *5 the called Over substance bony this is a layer fat, are column spinal “laminae”. from the Protruding day the processes”. small On “spinous bones called down of the the face placed was operation, was the An incision table and operating anesthetized. made in area. incision spinal the thoracic After the was cord made the dura the the through arachnoid, appeared small observation the affected area. This formed showing the basis of the part diagnosis, disappeared. number of had died large cells
As indicated the testimony Grunnagle, it front was if there necessary see was anything of the dura involving spinal cord. It was neces- into sary cut the dura arachnoid and to sever points of attachment ligaments dentate order spinal that he able to rotate the cord so itself, that he could in front There glimpse get the cord. no but a neoplasm, disc was noted which bulging the dura pushing up the cord. No effort against was made to remove the as such con- surgery was disc, sidered too dangerous to be attempted. Dentate liga- ment attachments (the continuous ligament each side of the cord which are attached by triangular small, shaped attachments dura in addition mater), to those had already been cut in order to rotate then cut. were cord, These dentate hold ligaments spinal position. cord upright The purpose technique this Kahn is to relieve pressure of the disc on the front of the bulged cord and the counter cortico-spinal stress on the track within posterior pressure which counter cord, exerted tough, ligament nonelastic dentate attachments holding cord spinal pressure from against the front. In it was performing surgery, necessary remove the spinous processes the laminae in the area of and 6th thoracic 5th 3rd, 4th, vertebrae. The dura and the arachnoid were also incised. The doctor’s surgery follows: read of this the conclusion
notes at particu- appeared posterior part small, cord “The pathology. larly right The dura over the area of *6 silk. of black lock a continuous stitch closed with then muscles, ascertained and the then Hemostasic was ap- layer heavy were and skin subcutaneous fascia, interrupted proximated Patient with- black silk. procedure well.” stood the Grunnagle out
Following operation, carried Dr. follow-up procedures. Gray dis- was Mr. normal, hospital February Dr. charged 1960. from Grunnagle in 1960 him thereafter saw several times February Mr. he saw time and was last 14, 1961, patient. Gray Gray able not been Mr. has as his operation. last On the occasion of his since this walk paralysis Grunnagle due found that the Dr. visit, plain- This the fundamental cause to the disc. tiff-appellant’s disability. The recommended doctor hospital Gray fur- that Mr. be readmitted to the improve Gray’s surgery, ther which he felt should condition. knowing Grunnagle way
Dr. stated he had no way. until he would find was under what Hospi- roentgenologist Allegheny Both the at General pre- Blakley impression tal and Dr. under were spinal operatively probably that a cord tumor was present; Grunnagle opinion Dr. however, was of the likely although it more the lesion that was was a disc, possibility not he could eliminate it was a neoplasm surgery. without actual There was no test performed, surgery, could be other than actual which have revealed would the exact which nature of the problem in this The case. record reveals that Dr. Grun- Gray’s signed nagle on Mr. had relied consent to an signed operation. January This consent, 18, 1960, hospital, of his admission to date was offered the trial. It in evidence should be noted plaintiff-ap- Ms stated testimony, Grunnagle worse condition pellant’s becoming progressively sur- deteriorate without have continued to would re- the ultimate he could not although say what gery, sur- undergone sult had Mr. would have been gery. well development
The law in field was Supreme stated Chief Justice Barnhill Par- Court of North Carolina the case of Kennedy rott, 243 N.C. 2d 754 follows: S.E. (1956), before hospital “Prior to the modern advent medical anesthesia had on the horizon of the appeared the courts in re- applied formulated a rule world, spect operations now be considered may justly unreasonable and period unrealistic. when During our common law was formulated being applied, *7 major even a of performed the home the and the patient patient, ordinarily conscious, so that the physician could consult him in respect conditions which required or made ex- advisable an tension of the operation. And even if of the shock the operation patient rendered the im- unconscious, mediate members of his family were usually available. Hence the courts formulated rule that exten- any sion of the Physician without patient consent of the or someone speak authorized to for him constituted a battery trespass upon per- son patient of the for which the physician liable in damages. that
“However, now hospitals are available most in need of people major surgery; anesthesia is in com- operations mon are use; performed in the operating hospitals rooms of such while the patient is under the of influence an anesthetic; the surgeon is bedecked operating gown, mask, gloves; and the at- if relatives, are tending any, some other part of the sometimes hospital, floors many away, law is in a beginning are more courts flux. More and of state remedy employed is surgeon ordinarily realize that au- on his limitation express without conditions of these view respect thereto, thority unrea- it is impractical, make consent conditions operation— to the exact hold the physician sonable to preliminary internal —that his it is particularly when know We necessary. indicated was examination an internal ailment complete diagnosis now influence is under patient until after the effectuated made. incision has been and the of the anesthetic phi- concept act upon “These courts Latin embodied in the ancient of the law is losophy ratione mutata legis maxim: Ratio est legis anima; rea- law; mutatur et lex. is the soul of the Reason changed. the law is also being of the law changed, son supplied) (Emphasis realize that view
“Some
courts which
modification
there should be some
modern conditions
right
rule
limit
of the strict common law
still
express
to extend an
operation without
surgeons
emergency
consent of the
to cases where an
preservation
for
immediate action
calling
arises
impractica-
or health of the
and it is
the life
patient,
or the
of someone au-
ble to obtain his consent
for him.
speak
supra;
thorized to
Jackovach v. Yocom,
204 P.
“In major internal both the and operations, the surgeon know that the exact condition of pa- tient cannot be finally until definitely diagnosed after the patient is in- completely anesthetized cision has been made. In such case the consent —in the absence of proof to the contrary be con- —will strued as general ex- nature and the surgeon may tend operation to remedy abnormal diseased condition the area of the incision whenever original in the he, exercise his sound professional judgment, determines that correct procedure surgical dictates such an requires extension operation origi- nally contemplated. This rule applies pa- when tient is at the time incapable of no giving consent, one authority him consent for immediately is available. King Baxter Carney, supra; v. Snow, P. 2d 257; Jackovach v. supra. Yocom,
“In an short, where internal is operation indicated, a surgeon may lawfully and it his perform, duty operation such good as perform, surgery even demands, when it means an operation extension of the further than originally and for so contemplated, doing be damages is not to held unauthorized an operation. . . .” is no question
There but plaintiff-appellant did an when sign admitted Hospital Allegheny General 18th day of when under the care of Dr. January, Blakley, opinion. has been set out previously Gray had that a been myelogram knew made and rea- an sure that exploratory sonably it back;
performed however, seems he did not technical meaning understand the term “ex- From ploratory”. testimony apparent it is given, underwent that Mr. exploratory laminectomy. an incision is made This means the back in the column spinal appropriate vertebra; area of *9 154 possible, if is observed, of trouble the source correct it, to remove then made effort is every
and that if feasible. symptoms or alleviate the it, dis- of his if cause opinion of the apparently be then would that he ascertained, comfort could of nature of the in due advised up and, course, sewn if he wished then determine and could malady surgery. corrective undergo well-settled consider certain
At we must this point, v. in Donaldson of As we said the law. principles A. 835 2d (1959), Pa. 156 553, 397 Maffucci, con special of a “In absence therein: cases cited of a or is neither warrantor surgeon a tract, physician of his treat a of the result guarantor cure nor a is bound physician . .” Furthermore, ment . Chief Jus explained by rule so well testimony
expert A. Pa. 127 Wirts, Robinson tice Stern of “. . no or presumption : . inference 2d (1956) or arises because the medical care merely negligence re terminated unfortunate surgical proper have occurred even might though sult and skill had been and where the com exercised, care experience or of not suffi knowledge mon is laymen their In passing judgment. to warrant such cient ipsa loquitur the doctrine res or exclusive (cid:127)cases not be expert control may invoked, testimony plaintiff’s of the claim is an support indispensable req to establish action.” right uisite proof The in a malpractice burden action upon plaintiff prove either that physician or sur- not possess did geon employ required skill and/or knowledge or that he failed the judg- exercise of a reasonable man in ment like circumstances resulted injury from a failure on physician part to possess, employ and/or required, skill his failure to exercise reasonable like under judgment In circumstances. the instant of- on the basis of the and evidence testimony case, is- the trial judge allowing was correct fered, sues of be sub- negligence diagnosis surgery *10 mitted to the jury.
As to the
of
of Mr.
question
part
consent on the
Gray
which Mr.
asserts
operation,
Grunnagle went beyond
grant
of the consent
scope
our
in Smith v.
412
194
ed,
court,
Pa.
Yohe,
94, 106,
ap
A. 2d 167
stated:
of
(1963),
principles
“The
law
plicable to
phase
Such
are clear.
litigation
,
principles are:
(a)
patient
where a
mentally
is
able
physically
to consult
in the
about his condition,
absence
an
emergency,
‘ “ ‘a
prerequisite
a surgical
phy
by
” ’
sician’
and an operation without
patient’s
con
sent
ais
technical assault
(Moscicki v.
Pa.
107
Shor,
Superior Ct.
“Consent” has been defined in Black’s Dic- Law as: A tionary concurrence Vol- of wills. “Consent. the will untarily yielding proposition of an- other; acquiescence or compliance therewith. Twin Ports Oil Co. v. Pure Oil D.C. 26 F. Co., Minn., Supp. 371. 366, the act or Agreement; result of into coming or accord. Glantz harmony v. 66 212 Gabel, Mont. 134, P. 860. 858,
“Consent
is an
act
reason, accompanied with
the mind
deliberation,
weighing
a balance the
1
or evil
each side.
good
Eq. Jur.
Story,
Sec. 222;
v. White Top
Lervick
La. App. 10
Cabs,
So. 2d
73.
67,
voluntary
It means
agreement by a person in the pos-
and exercise
sufficient
session
mentality
make an
to do
choice
intelligent
something proposed by another.
44
v.
Cal.
Kangiesser,
App.
People
345,
It
of these
free use
acting,
a serious, determined,
Jersey
Fonblanque, Eq.
powers.
New
1;
b.
c.
s.
1,
2,
N.J.L.
Casualty
106
791,
“There is Every but mitting. submission; consent involves necessarily consent. involve does mere submission & 722. 9 Car. P. “ acquiescence as distin- an active ‘Consent’ is acquiescence. meaning guished from a silent ‘assent’ App. People 498. Div. N.Y.S. Lowe, concurrence; an active circumstance ‘Consent’means *11 passive another before a act concurrence ‘assent’ is App. charged. Perryman Ga. 63 State, does the act may be 12 But the terms 2d 390. two 388, S.E. 819, interchangeably. Bartlett v. 169 N.Y.S. Sundin, used App. 117.” 182 Div. 391, 393,
Quoting from Robert E. article Powell’s excellent Operative 21 Md. L. Rev. 189, Consent Procedures, (1961) : “In order to the of con 191 understand nature necessary it the is outset have some under sent legal relationship standing physi of the between the patient. relationship essentially This cian and his is (Footnote omitted) in contractual nature.11 More implication not the contract often than is raised dealings parties, between from the the a like performed parties be manner the acts to im are patient pliedly surgeon if a Thus, defined. consults a purpose removing a for tumor from his arm, requires surgeon entered into which contract is digress tumor. he Therefore, remove must from patient’s appendix. and also that contract remove the surgeon operate must In accordance short, with agreement parties. for Consent made between operation from the contract treatment arises given only parties is un connection what the derstood done. in the illustration was to be Thus, patient performance did not consent to the above, operation tumor, other than the removal appendix surgeon if he as removed the well, damages. be in such would liable It is noted that patient might rely case the well on an action (Footnote omitted) breach of contract.12 However, battery may base action on a tortious assult and punitive damages and recover not available which are in contract actions.” Supreme Bang
The
Court of
v. Charles
Minnesota,
Hospital,
(1958),
T. Miller
“While we have no desire to
the medical
profession
outstanding progress
in the
it has made and
*12
continues to
in
make
connection
study
with the
and
problems,
solution of health and disease
opin-
it is our
ion
a reasonable rule
physician
that
is that, where a
surgeon
in
operation
can ascertain
advance of an
al-
situations and no
ternative
emergency
immediate
exists,
patient
a
should be informed of
pos-
the alternative
given a
sibilities
chance to decide before the doc-
operation.
proceeds
By
tor
that we mean
us where
before
the case
in a situation such as
that,
in-
should
patient
a
no immediate emergency exists,
cords
his spermatic
if
operation
before the
that
formed
but
sterilization,
in
it would result
were severed
would be
there
if
not done
other hand
this were
in serious
which could result
infection
possibility
would
patient
conditions the
consequences. Under such
whether
deciding
opportunity
at least have the
if the
infection
possible
to
of a
take
chance
wanted
to become
in
one manner
performed
. . .”
performed
if
in another
sterile
Appeals
of Civil
the Court
In Scott v. Wilson,
in
re-
an action to
2d
535 (1965),
S.W.
Texas,
trial court
for
reversed
damages
malpractice,
cover
of a
physician
directed a verdict
favor
question pre-
The main
plaintiff’s testimony.
close
had reason-
that case was whether
Wilson
sented
dangers
informed Mr.
Scott
adequately
ably
contemplated
to be
from the
anticipated
and hazards
as
him
prepare
give
so
stapedectomy
In
that
consent to the
knowledgeable
operation.
holding
not
should
have been granted
the directed verdict
where
on conflicting testimony
a fact issue
raised
as
made a full
physician
whether
disclosure of
possible
collateral hazards of the
dangers,
risks,
court
“We find
said:
no authorities
operation,
but
there
directly
point,
this State
are authorities
point.
other
are in
jurisdictions
from
Bowers v.
v. von
Talmage (Bowers
Fla.
So.
Storch),
App., 159
it is
2d
wherein
held that where there is
emer-
no
the doctor is under a
gency
duty
adequately inform
to the dangers
to be
anticipated
re-
as a
operation,
minimize
sult
them. Wheth-
complied with
the doctor
er
duty was there a
determination.
jury
question
Harwick,
Fla.
“In Russell
App.,
159 of methods inform alternate patient as to the proceeding treatment he and surgical contemplated, without of the plaintiff. informed consent 24
“In the recent case of DiRosse v. very Wein, ‘We A.D. 2d the Court said: 261 N.Y.S. 2d 510, 623, circum- are of the opinion under the facts and that, fact stances including disclosed this record, no immediate defendant was emergency existed, obligated pa- make a reasonable disclosure to his of tient the known to or dangers which were incident possible in trial of and that proposed use gold; did not err in court, therefore, charging, substance, that defendant be if malpractice could found guilty he failed in that Natanson 186 Kan. duty (cf. v. Kline, P. 350 2d denied 187 Kan. 393, rehearing 186, 354 P. 2d Mitchell v. 670; S.W. 2d, Robinson, [Missouri]).’
“In Mitchell v. Mo. 334 S.W. 2d Robinson, Supreme particular Court Missouri said: ‘In the circumstances the nature record, considering of Mitchell’s illness and this rather new and radical procedure with its rather high incidence of and serious permanent injuries connected with the illness, their doctors owed possession of his facul- to inform him duty ties generally possible serious collateral hazards; and the detailed circum- stances there awas submissible fact issue of whether the doctors negligent were failing inform him of , of shock . dangers therapy.’ . There can be no the stapedectomy doubt operation performed on an elective Scott was and performed under require circumstances as to such of Dr. Wilson that reasonably adequately and warn Scott of the known dangers might and hazards probably expected operation, from such the chances of favorable results to be unfavorable contemplated. The con- to have gave Scott sent which operation performed knowl no it was an unless informed effect here as question no consent. There is edgeable re aas damages suffering being injured Scott’s *14 have did not If Wilson of the Dr. operation. sult would he him upon to operate informed consent Scott’s for and liable on and battery Scott, assault guilty Rish Moss v. operation. caused damages (Emphasis 222 225.” Com. S.W. Tex., App., worth, supplied)* to as Gray of Mr.
Concerning
informing
ef-
collateral
forthcoming surgery
potential
its
inter
Dr. Grunnagle,
cross-examination
fects,
“Q.
recollection
as
Do
alia,
you
any
follows:
have
Gray
advise
Mr.
relative
you gave
what
as
[sic]
I
I
what
potential
exactly
risks? A.
don’t know
him it
told
I
I told
no.
can’t remember
that.
him,
in-
operation.
many
was a
risks
serious
There are
Q. But
life.
not
as to
but
toas
volved,
only
paralysis,
much
of how
you
specific
don’t have
recollection
him?
explained
detail
went into
this to
you
you
when
Q.
Mr.
A.
I
told
don’t.
Can
tell us
No,
you
you
when
these
A.
some
Gray
risks
hazards?
Well,
Jan-
time —either the
or the
24th of
23rd,
22nd,
Q.
I take
uary.
And you are
answer
basing your
now,
on the
that
did
see or become aware
it,
fact
not
you
myelographic
finding until
22nd
January
Q.
is that
A.
I
right?
That’s
As
recall
1960,
right.
from the
it
hospital
that
record,
indicates
was admitted on a Monday, January the
is
18th,
Q.
true? A.
it’s
Well,
January
So
yes.
18th,
the 22nd of
January
1960 would
Fri-
then,
have been a
Q.
day.
Right.
A.
...
You
your
made
recommenda-
tion for
surgery
January
the 22nd? A. On the
*
Sullivan,
also
& S.I.R. Co. v.
1,
See
155 Miss.
119 So.
Gulf
Brumlop,
(1928) ;
221,
v.
71
(1962) ;
501
Woods
N.M.
Therefore, case, summarizing of Dr. testimony we find Grunnagle, the operation was it involved serious, many risks a 15 to 20% chance it paralysis, to inform customary risks involved and that Dr. Grun- he had thought done so nagle but apparently certain, stating specifically “Q. cross-examination: up Then summing being fair to both you —and sides— specific have any did not recollection of advising to these risks A. surgery. I am No, afraid far I remember back cannot to one specific pa- tient.” *17 Dr. operation, prior to the that
Mr. testified explained Grunnagle nor discussed had neither forthcoming possible in- surgery risks collateral and the “Q. Gray’s testimony Now, that: reveals volved. your prior sur- going or before back the time to, to potential sur- you gery, did discussion have Grunnagle? Q. Did gery A. I Dr. did not. with Q. Did he you not. it all? A. He did mention to at surgery? A. I you you that were scheduled advise impression going have a I to under was that try ‘exploratory operation’. going arrive to to He was diagnosis. thought going ‘ex- have a I I thusly? operation’. ploratory you Q. A. advised Who anyone Q. ever Dr. Renton me of that. Had advised potential explained you hazards with risk and you surgery? day Q. ... do A. No one did. What operation? say Grunnagle you that saw before Grunnagle Tuesday. A. Dr. I saw me was admitted after-, hospital Monday. Tuesday He saw me again Thursday evening. and then he saw me noon, say it 6:00 I’d was after 5:30—after o’clock on Thurs- evening. day Q. That was after the time that second you myelograms had been down to the room where were right? A. that That was taken, after the second my yes, after I had been returned to sir. time, room, Myelogram you? Q. Did he discuss A. No, just Q. he did not. What did he do? sir, A. He came in and he looked at the chart and said that he would you telling Q. me later. Are see us, sir, when you operating you into that went room on the 25th, they going operate your know that didn’t were spine? I operating A. When went into that it’s room, thought going I I undergo truth that operation. exploratory Q. exploratory An where? In your In back? In foot? the reasonably where? A. IWell, was my it get sure was I but back, didn’t Grunnagle. Q. you get Who did from Dr. it from? A. gentle- I think that’s Dr. Renton. I from got Q. get you else did me. What that visited man’s name first told me A. Dr. Renton Dr. Renton? from *18 to going and were they inconclusive, was Myelogram per- that he would next and day one the another give Q. What Myelogram. the second Myelogram, form the tell A. He didn’t operation? about the he tell you did A. Q. At time? operation. about the me anything say- are Q. I whether you don’t know Well, sir. Yes, didn’t’. or ‘he bout or ‘at any time’, ‘anything it’, ing it about something that he told me I to say A. meant A. time? Q. did tell you time. What he one at to attempt after unsuccessful evening my Sunday On a to came Dr. Renton in touch Grunnagle, with get I I upset up and shook because and my room, going I didn’t know what had been shaved, worry to Renton told me not me. Dr. to happen I ixl nature exploratory it was about it, in days.” be home six would the for judgment n.o.v., a motion considering
In
inferences there
all reasonable
together
evidence
favorable to
in the
most
light
from is considered
Co.,
v. United
Rubber
Lewis
States
winner.
verdict
2d 20
Pritts v.
(1964);
Wigle,
202 A.
Quoting again Powell, express an con- Procedures, supra, concerning Operative if difficulty regard is little “There consent, sent: on his own initiative or either solicita- patient, a physician or a instance nurse consents tion op- undertaking verbally writing to the either patho- attempt remedy procedures erative complains. logical indicated, As condition of having express consent can be obtained either making patient sign through the a written statement agreement. agree- In of an oral either since the case, patient physician con- ment between and his it for there to be tractual valid consent nature, parties nature be clear that both understand the must possible undertaking what the as well expected might thoroughly results be. As will be more surgeon it will no discussed defense later, prove given that the had if the con- consent, given understanding sent of the with a true performed, nature of the to be serious- organs body ness disease it, involved, *19 incapacity sought possible or to be and re- the cured, certainly sults.” We believe that Mr. Powell was cor- particularly in rect, his statement “it no that will be surgeon prove defense for a that the had given given if the consent consent, was not with a understanding operation true of the nature of the performed. . .”.
Reviewing particu- the light, entire record, that larly testimony Grunnagle the of Dr. Gray, and Mr. judge proper conclude that the we trial reached the holding conclusion only that “Thus for issue jury plaintiff was whether or not had consented to substantially that was performed on him.” judge point
The trial was correct on this but erred granting judgment n.o.v. The record discloses Gray signed Mr. had a consent at the time he was hospital. to the admitted This signed consent was while he was under the Blakley care of Dr. and before appearance Grunnagle. of Dr. Certainly, under Grunnagle circumstances, these could not or should not was intended have assumed that this consent him. Assuming, arguendo, however, could was intended for Dr. certainly Grunnagle, Mr. hot been part have an informed consent on the Gray.
Mr. Gray’s apprehension questioning and continued of nurses and a resident is indica- physician certainly tive that pro- he was uncertain of very surgical what cedures were to be performed upon him. He could have un- consented, with certainly, any knowledge of an derstanding operation on impending January the date of his admission to and at hospital, which time neither diagnostic tests had been performed, nor had been surgery discussed. the rec- Testimony ord that Dr. shows Grunnagle had not op- decided to erate until four January after con- 22, 1960, days sent was Mr. signed by It Gray. important be noted should that at the time the consent in question Mr. was under signed, Gray the care of Dr. Blak- and Dr. ley, Grunnagle had neither seen nor spoken Mr. on that date. Viewing testimony light most favorable appellant, with the conflicting' testimony record must discloses, we reach the conclusion consent was Gray’s certainly question for the jury decide.
Judgment verdict reversed, rein- jury stated, judgment thereon here entered for appel- lant.
Mr. Justice Roberts concurs in the result on solely the issue of ground consent was sub- properly to the jury. mitted Mr. Justice Cohen joins in view.
Mr. Justice Jones and Mr. Justice Eagen dissent. Opinion Dissenting Mr. Chief Justice Bell: action of trespass This is an for a battery, and not for malpractice. action the usual The majority Opin- part negligence no on the ion that there was admits surgical operation, in his the defendant either his postoperative preoperative diagnosis, care. or in his operation” plaintiff signed a “consent Moreover, agreement defendant and admitted that he knew operation going exploratory his back. to make an majority sus- Plaintiff of this Court bases, right damages alleged fact to recover tain, understandingly that he did not consent to the serious operation performed which, defendant plaintiff operation” repeat, signed we the “consent to operation” agreement. agreement This “consent to applicable unquestionably so broad and so clear and so per- to and inclusive which defendant impossible that it is for me to formed, understand how permit majority can it to be evaded and nullified. It reads:
“Allegheny Hospital General
Pittsburgh, Pa. Consent To Adult Operation, Gray residing Chas. B. I, at No. /s/ “Whereas, Street, (City State) Allegheny Hospital in the and now General of Pitts burgh, age, and of full Pa.; have been informed hospital physicians* opinion said their necessary proper on me is for the treatment hereby my I illness. consent to the same and said physicians hereby are employ authorized to whatever procedure operative they necessary, deem using their judgment. . skill and best
* throughout, ours. Italics *21 hand at said “Witness, my seal, hospital, City 18th Pittsburgh, day Pennsylvania, A.D. 1960. Jan.,
Attest:
M ” B. Gray Charles
/s/ The sustain verdict not on the majority the jury’s important question of cov- what written agreement but on the oral what ered, testimony of as to plaintiff he believed the defendant intended to The ma- do. make the critical jority issue not the doctor ac- what told the tually advance but what latter, understood or should have layman, understood from surgeon what said, explaining he contemplated what doing. upon plaintiff’s
Defendant relies written consent agreement which specifically authorizes the physicians hospital perform “whatever operative pro- they cedures deem necessary.” own doctor, Plaintiffs B. brought Dr. John who Blakley, per- in to defendant the operation, testified that he had explained to form plaintiff prior to proposed op- eration was serious one, not as plaintiff claims a minor one. Defendant only also testified substan- to the same effect. tially in his charge trial Judge
The to the jury placed the (and realistically, issue the verdict) on this purely “Did the plaintiff basis: subjective to major or did he surgery, anticipate or serious minor only he believe that and did there surgery, was practically to this as he operation, nothing testified; and that’s in the case. We issue know, only course, question The operation. only to an he did consent major surgery.” did he consent opens Court of this majority The decision *22 belief or (2) to fraud the door (1) wide “a party of one guess or understanding it covered and meant exactly what agreement” as an altera it amounts to important all, most (3) instrument of a wi’itten nullification tion and virtual non- (admittedly) defendant’s evidence by parol the proposed op concerning oral fraudulent statements flies in evidence parol such eration. The admission established and well law, of the long teeth in the ab instruments, viz., to written applicable is oral prior or mutual mistake, accident fraud, sence of or or inducements understandings or oral statements subsequent agreement.* in are written merged agreements A. Pa. 179 406 644, v. McCabe, lliams McWi Jenkins, United v. Pa. Refining Company 410. 2d 222; 412 Gailey, 2d Smith v. Yohe and Pa. 574; A. 189 126, 2dA. 167. 194 94, v. Jenkins, United 410 Refining Company Pa.,
In
“The rule enunciated
(page 134):
the court said
supra,
&
em
Inc., supra,
firmly
v. Russell
Co.,
Gianni
and from that
law of
rule
Pennsylvania
bedded
deviation for it is
permit
essential
we will
In
of written contracts be maintained.
integrity
79 A. 2d
592, 597,
v.
366 Pa.
255,
Grubb
we
Rockey,
Parol
Pennsylvania
modern
Evidence Rule
said:
‘The
Mr. Justice Stearne
in Walker by
is well stated
A. 2d 9:
594, 598,
Pa.
63
“This
360
Court said
Saricks,
&
Pa.
v. Russell
Co., Inc.,
320,
in Gianni
without
or
parties,
Where
fraud
mistake,
A. 791:
their
put
engagements
deliberately
have
writing,
to be not
writing
only
best,
law declares
but the
agreement:
their
[citing
All
evidence
only,
cases].
[*]
which,
here,
contains
the entire
agreement
parties.
preliminary
conversations
negotiations,
and verbal
are
agreements
merged
superseded
the sub
sequent written contract
. .
.
unless
acci
fraud,
dent or mistalce be
averred,
writing constitutes
agreement between the
its
parties, and
terms cannot
be added to nor subtracted
parol
evidence:
from
” ’
[citing
See also: O’Brien et al. v. O’Brien,
cases].’
supra; Bokser v.
Pa.
Lewis, 383
A. 2d.
507,119
67; Keleher
v
. LaSalle
394 Pa.
The trial in this case took place about five years after the questioned operation. open Until surgeons human they cannot body, be sure what conditions they will determine advance with find, certainty what surgical operative or other procedures treat- ments are wise or or exactly what opera- necessary, tion (s) perform will they when the actual conditions *23 within patient’s can be body seen and more accu- diagnosed and determined. If rately ad- majority here to their new malpractice trespass and claims rule, will hereafter be made countless irrespective of times, what or patient. written consent release is a signed by not
Plaintiff is aided —in view of the aforesaid con- sent in- operation agreement by to his legally —either (in any event) admissible and insufficient tes- legally or he claims De- by testimony. defendant’s timony, has more performed major who than fendant, 4,000 called as of when tes- operations, cross-examination, patient told a a (especially pa- tified that he always condition) tient a back seriousness of and any operation but back, the risks involved remember exact words he could not used ex- five before. plaintiff years it to How could plain remember what he exactly said honestly doctor any five before the trial? years Plain- patient particular a whatever operation consent written signed tiff’s should not be necessary permitted deem physicians that he testimony thought his oral an repudiated operation operation exploratory a loas not serious practical operation effect all. indeed The surgeon Opinion require majority a to be would (2) prophet, surgeon only (1) a but also an able (4) lawyer, (3) highly an insurer, and a technical perjurer although realistically a alternative, — rarely perjury speaking, ever suffice would even plaintiff-patient jury’s against in a a verdict win a impose surgeon pitiful a To on a such condition. very very unfair, test is unrealistic, burdensome unjustifiable. very Gailey, A. 2d Pa. v. Yohe and 94,
In Smith affirming compulsory nonsuit in a court, aptly (pages against Gailey, plaintiff’s said action 107-108): Gailey v. Dr.
“Smith Operation Performed An “A. Unauthorized Was Gailey? performed charges Gailey an un- that Dr. “Smith Smith) (Mr. by inserting authorized in his tibia. Pin Steinman phase principles applicable to this of law
“The principles (a) litigation Such are: where are clear. mentally physically patient able to consult is emergency, in the absence an condition, his about ‘ “ prerequisite ” ’ ‘a to a sur- the consent physician’ operation by gical patient’s is a technical assault without Superior *24 (Moscicki 107 Pa. Ct. 192, 163 195, v. Shor, Berg, 15) Pa. 2d ; v. A. Dicenzo 341; A. prove opera- plaintiff ‘that (b) burden substantially operation, performed, or tion supra, Berg, v. him’: Dicenzo 307. authorized “ place, when Smith first was ad- first ‘In the signed hospital, following [Smith] to the mitted admitted evidence: “This is to statement certify (we) undersigned I or treatment to the administration of whatever anes- performing thetic and the of whatever procedure necessary medical deemed advisable diagnosis patient.” and treatment This complete would seem a furnish answer to [Smith’s] authority. claim of lack “ [Smith] infers that ‘However, the conversation be- Gailey] prior questioned tween him and [Dr. to the procedure constituted a withdrawal or limitation of the prior Gailey] blanket [Dr. and that authorization, then agreed to limitations which he thereafter exceeded: [Smith] described this conversation as follows: “I said, manipulations? ‘What they is it with these What are ‘Very painless; pentothal like?’ He said, sodium little pull patient’s try snap we limbs and prosthesis place.’ back into I you ... said, ‘Is this all going manipulation?’ are And do, ‘Yes.’ said, My I brother and looked at each other and ‘We said, ” go along will with that.’ “ that the ‘We fail to see insertion of the Steinman pin procedure exceeding any a limitations [Smith] ” may imposed. . have . .’
For each and all of these reasons I would affirm the judgment namely, which was entered the lower court, judgment for defendant non obstante veredicto. Township, Appellant, Terregino. Mead
West