John N. Dunham, Administrator of the Estate of Dorothy Louise Sipling, Deceased v. Frederick W. Wright and Frederick M. Wright

prosecution from Wa- concealed trial after his until counsel ters and his judg- conviction; think then we be vacated. should

ment of conviction suppression consist Concealment Margaret something deleting prosecutor’s said, or of Marie Smith furnishing true purported to be a what in his copy of a statement correct and correct was not true file but which difference either varied because by failing subject to reveal matter or copy contained material deletion one, question a close file. The is proof remembering the burden of prove upon invalid- rested Waters to reluctant, ity judgment. areWe however, upon to rule Instead, unsatisfactory record. such court simply district we hold comply the exact- adequately with Sain, duty imposed Townsend v. 316, 318, S.Ct. 372 U.S. § and 28 U.S.C.A. 9 L.Ed.2d carefully the state- scrutinize require adequate de- court record and to velopment facts of all of the material judgment and circumstances. and the case remanded therefore vacated proceedings consistent further opinion. and remanded. Vacated DUNHAM, Administrator John N. Sipling, Dorothy Louise Estate of deceased, Appellant, Frederick W. WRIGHT Frederick Wright. M. No. 18077. Appeals, United States Court Circuit. Third Argued Jan. Decided March Markowitz, Markowitz, Ka-

Lewis H. gen Griffith, York, Pa., appellant. & Dowling, Dowling, John C. Huette F. Pa., Dowling Harrisburg, Dowling, & appellees, (Dowling Dowling, Har- &

risburg, Pa., brief). on the FORMAN, AD- Before SEITZ Judges.

AMS, Circuit OF OPINION THE COURT Judge. ADAMS, Circuit Legal-medico jurisprudence re quires con obtain the patient performing sent of a sur gery need unless the for such consent is places emergency obviated danger patient immediate impractical makes it such to secure rule, consent.1 This clear blackletter g., Gray Grunnagle, (1941); Williams, e. See 423 Pa. Mohr v. 95 Minn. (1966); (1905); McCoid, 223 A.2d 663 Moos v. 104 12 Re A N.W. States, (8th appraisal Liability 225 Cir. United F.2d 705 for Unauthorized 1955); Brim, Treatment, Wall v. 138 F.2d Medical Minn.L.Rev. 1943); (5th Moran, (1957); Cir. Bonner v. Anno. “Consent a Condition U.S.App.D.C. 156, Operation.” Right Surgical 126 F.2d to Perform face, negligent preparing simple ants occasioned were its has operation, grapple many jurisdictions decedent for de- courts opera- concepts defining fendants obtained elusive tion, “emergency.” con- whether an existed These “consent” and eliminating cepts develop thus the need for require consent. a delicate courts right de- a verdict for returned balance between un- fendants. he wishes choose the treatment physician dergo of the and the freedom judgment Plaintiff filed motions for progressive practice responsible and to n. o. or in new the alternative for a litiga- frequent medicine without fear They trial. denied. In were those mo- tion. tions, appeal, plaintiff and this as- on suit, brought after unfor- serts that there as a matter law was Sip- Dorothy of Mrs. Louise permit tunate death jury to insufficient evidence ling following surgery, called we are to conclude that defendants an obtained explore necessary upon emergen- to elements “informed” or an that concepts cy have permit of these evolved existed so as to defendants attempts proper from to understand the without such consent. Plaintiff relationship pa- and between also contends that right protect pa- tient and to was incorrect on issues of consent ap- tient decide whether “he will take his emergency. and Since operation, pealing chances with or primarily take his [an] from the dismissal living v., chances without it.” judgment a motion for n. o. we are required to consider the facts surround- here, by action instituted operation light Sipling’s Mrs. pursuant decedent’s di- administrator most the defendants. favorable versity jurisdiction, seeks hold de- physicians, fendant Dr. Frederick W. suffering Sipling, from Mrs. who was Wright son, and his Dr. Frederick M. “extremely goiter”, an re- toxic was Wright, responsible Sipling’s for Mrs. family by ferred to the defendants her thyroidec- death which occurred after a thyroid “to in order have sur- tomy operation by performed the elder gery performed.” The first consultation Wright. alleged Plaintiff trial Wright F. W. was December Dr. on negli- operation performed that was opinion, his “she was gently, and valid without a extremely seriously of the most ill wom- the decedent or her husband. goiter en due to her ever [he had] signed defendants two form obtained Indeed, “felt that an seen”. she was consents, plaintiff contended that these emergency”, and had her admitted im- forms were ineffective because the de- mediately Hospital. to the Hanover Dr. Sipling fendants failed to alert Mrs. F. W. that the time stated first dangers her husband to the inherent her, Sipling her he saw he told and Mr. operation and failed to advise them way only possible re- she treating methods of alternative surgery performed, cover was have Sipling’s Mrs. condition. thyroid surgery and that was “serious”. Sipling was tried the Honora- Mr. that the time conceded first ble William J. Nealon and a After he and Mrs. met with W. Dr. F. days Wright, testimony five was re- advised the doctor there would quested to operation. determine defend- be an geon performs 76 A.L.R. 139 A.L.R. 1370. As an without who Judge patient’s assault, Cardozo stated in Schloendorff v. consent commits Society Hospital, damages”. of New York 211 N.Y. liable which he is (1914): “Every 105 N.E. being years Williams, human and adult sound 2. Mohr v. 95 Minn. 104 N. right mind has a to determine what shall W. body; be done with his own and a sur- effectiveness, oper- admitted were not she When Mrs. hospital, her husband ated she time both she might signed for medical never have been an authorization able hospital operation. surgical F. W. In the she treatment. get thyroid given drugs day. her Mrs. “euthyroid”3 February before died on gland state at 1:30 a.m. in an 7th ill, Although seriously operation. jurisdiction predi here is Since permitted go home for she was diversity cated on inasmuch as holidays. The defendants Christmas her husband decedent and are citizens January in their office saw Pennsylvania per deteriorated, Her condition state, is clear that again admitted as emer- and she was controlling. law is gency patient. of the sec- At the time admission, parties another do not authorization contest ond signed Sipling. general principle in the absence of patient’s a consent is the he that whenever testified Mr. operation.4 surgical prerequisite to a Wright when he F. W. asked Dr. differ, however, They in their inter do Wright going him operate, told recently promul pretation the more of operated on would be Pennsylvania gated con in that a rule pulse down and “as soon as her operative only “in if it is an sent is F. down.” Dr. W. nerves calmed “knowledgeable” consent. formed” or “talked to testified that he Mr. Grunnagle, 144, 155, Gray 223 423 Pa. v. frequently would told him that [he] and (1966).5 663 A.2d as soon as [he] wife] [his good enough condi- in felt that she Pennsylva- Gray Grunnagle, the v. he on.” He said tion to be adopted approach Supreme the nia day, “couldn’t tell the exact but [he] give jurisdictions tried that have of stage that it be him one would told right patient’s to decide to a substance following two of the done days.” either surgical procedures he himself what undergo. jurisdictions These wishes which effective consent one consider an F. testified that on Dr. W. patient 6, 1964, has ad- February point made after the been reached is the consequences begun possible drugs of the their the where lose vised 1093, rehearing 393, “euthy- 350 P.2d 3. Dr. Ervin 186 Kan. Carl E. testified 186, denied, 354 P.2d 670 Kan. roid” is a medical term describe a 187 thyroid jjatient’s (1960); L. Southwest in cited 21 state is eases (1967). brought possible 843, 22 In a case to a 845 n. close as normal Rev. Fillipo in v. 76 Harv. situation. on Di Preston note 1445, position was consider L.Rev. Pennsylvania, surgeon per a who inevitable,” “Justifiable, though not ed is forms unauthorized of is obscure element intent since the charged Gray v. Grun assault. believing operates physician where 144, nagle, (1900); 423 Pa. A.2d 063 223 is effective but it he has an Yohe, 94, Smith v. 412 194 A.2d Pa. such consent was not later determined (1963); Berg, 340 Pa. 167 Dicenzo v. of such ac “informed.” treatment 15, (1940); Mo 16 A.2d 16 sounding ap negligence is tion Shor, Pa.Super. scicki v. 107 proved in an extensive law review arti (1932). plain 163 A. Here Plante, cle L. Marcus note infra complaint tiffs framed their in terms of major discussing in the cases field. negligence judge charged and the so Grunnagle jurisdictions Gray consider an ac v. discussed In- Some is against physician Surgery operates tion a who formed Consent —Substitu- Subjective of without an informed consent as one tion Patient’s Understand- sounding negligence. See e. of Notice and of Procedure Wilson Risks Objective Test, Scott, (Texas 1967); v. Man S.W.2d 299 Reasonable Fillipo Di v. 53 Del. Dick.L.Rev. 675 Preston. Kline, (1961); A.2d Natanson suggested surgery, opera- possible of the risks inherent impose upon physi- A tion, a results the failure to chance it. and therefore understanding complete patient conse- duty cian disclose to foregoing quences possible of an results adverse necessarily con- would seem to include a operation.6 sideration the alternative treatment clearly articu it is patient’s condition.7 disease or lated, analysis rationale a careful including citations, applicable jurisdictions considering Some Grunnagle, Gray that before indicates duty physician a to disclose to a give in patient deemed will be patient giv hazards of necessary consent, may it en the broad discretion methods of he alternative know the saying that a does not have to the in him and treatment available to patient by explaining alarm a all dangers possibilities of suc herent however, possibilities.8 Grunnagle, such philoso of such alternatives. cess makes clear phy theory con of informed behind such only “informed” is right patient has the sent is that apt happen to him and knows what is responsibility determine whether dangers possible adverse results suggested correc to risk the wants logical operation. surgery. patient’s inference If a decision tive intelligent one, knowing may to be it is from this formulation to the risks must understand addition prerogative physician to not the Scott, g., contemplated.” 412 299 6. E. Wilson v. S.W.2d v. results not Wall 1967) Brumlop, (Texas, ; 1943). Brim, (5th Woods v. 71 at Cir. 138 F.2d 481 (1962); 221, Natan N.M. P.2d 520 377 Harwick, 7. v. 166 So.2d 904 Russell Kline, 393, 350 P.2d son v. 186 Kan. (Fla.App.1964) discharged, cert. 182 So. 186, 1093, rehearing denied, 354 187 Kan. Bang (Fla.1966) 241 and 2d Charles Salgo (1960); Stan P.2d v. Leland 670 427, Hospital, T. Minn. 88 Miller 251 Trustees, University ford Board of Jr. recognition (1958) 186 hint at a N.W.2d Cal.App.2d 560, 154 P.2d 170 317 duty physician the of a to to of disclose ; (1957) Bang T. Miller Hos v. Charles surgery. patient the to the alternatives pital, 427, N.W.2d 186 251 Minn. 88 Pennsyl These cases were cited the “Malpractice: (1958) also, . See Anno. Gray Supreme in vania nagle Court v. Grun Duty Physician’s Patient of to Inform indicating as the relevance of ex Treat of Disease or Nature and Hazards ment,” pa plaining alternative treatment to a (1961). A.L.R.2d 1028 For 70 obtaining tient consent. consent, the informed see a discussion of Clutts, 153, following 262 E. Watson v. N.C. Waltz & law review material: (1964); Scheuneman, 136 621 Roberts v. S.E.2d Informed to Thera Consent F.Supp. (S.D.Ala. (1969); Camp Wood, py, 206 583 Nw.L.Rev. 628 64 1962). Investigational bell, Liability These cases are concerned with For Civil patients Drugs: I, Temple 42 disclosures to where such would L.Q. Part 139- patients’ Temple II, emotional be harmful to the L.Q. 143 Part (1 42 297-307 prob Analysis Suggestions ; 969) Plante, “In state. avoid of An Consent,” com lem have been made law review 36 Ford.L.Rev. 639 formed patient delegate (1968); Comment, A his ments. could Informed Consent physician Malpractice, choice the if does not 55 1396 Medical Cal.L.Rev. surgery. (1967); Comment, the of 1445 want know details Harv.L.Rev. 79 Operative (1961); Powell, 55 at 1409. Disclosure Cal.L.Rev. Consent Procedures, to a Harv.L.Rev. be made relative. 76 Md.L.Rev. exceptional concept should “informed” at 1448. These cases the of an negate physician’s duty development to dis the last not the of consent decade, is a great majority in older close information foreshadowed patient relationship patients. not be of A should of which conceived the eases prevented making physician-patient from a choice to de contractual. of a cline treatment even others consider the contract considered that Such cases wrong. surgical procedure at authorizing Harv.L.Rev. not the choice operations “involving at 1410. 55 Cal.L.Rev. risks and authorize any parties. the ment keep out of made between the Con and screen secret surgery.9 sent for possible complications of treatment the or given arises from contract the and is Grunnagle Gray action only par with connection what the alleging trespass by plaintiff he suf- a ties understood was be done damages result disability a fered ’ ” * * * 156-157, at A. 423 Pa. by the surgery performed defendant 2d 669. neg- physician and in a consent without ligent judge the The withdrew manner. Pennsylvania Supreme Court in- negligence and submitted the issue of patient dicated can make that a a deci- solely the ease to the only sion all the if he is told conse- returned informed consent. quences. again Quoting from the Powell $80,000. stated; verdict of article, the Court “ ‘* * * granted banc, however, The court en no will be defense for [I]t judgment n. surgeon motion for the defendant’s prove patient appeal Su given o. v. On if the saying preme “whether reversed given Court with a true understand- op or consented nature of the substantially operation” eration performed, it, the seriousness of organs was an 423 Pa. body involved, issue lengthy opin In a sought 223 A.2d incapacity disease or to be ” ion, cured, set forth reasons possible results.’ It fol criteria for an informed consent. Pa. at 223 A.2d at 674: lowed rationale of informed consent information, patient has the Once the jurisdictions ex in other which have pos- one to decide which pressed the that there is a contrac view consequences he wants risk. sible relationship tual between the rule re- wisdom and fairness of physician must in which quiring possi- disclose conform his behavior to decision of effects were ex- ble adverse ap patient. quoted The Court article, plained In- recent a more article, proval from Robert E. Powell’s Malpractice, Medical Consent in Procedures, Operative Consent follows: at Cal.L.Rev. 189, 191 (1961): Md.L.Rev. risk entire “Since the bears the “ ‘In understand order to the nature non-negligent injury of and is con- necessary of consent it at is the outset interest as no cerned his own understanding to have some of the le- be, only person it other is fair can gal relationship between the accepting choose allow him to between patient. relationship and his This is rejecting proposed of the hazards essentially contractual nature. choice irra- treatment even if his is ** * than More often not con- the tional.” implication tract raised from the

dealings parties, Grunnagle, plaintiff the the between testified operation like that the manner the acts he understood was exploratory parties impliedly and he would the are defined. * * jn surgeon short, wished to under- the decide must thereafter surgery. agree- go in accordance with The defendant the corrective developed A line of in the area cases has lim ard of care was medical physician’s duty patients it a of the risks to the advise of disclosure Gray profession surgical procedure standards of the medical of Mr. 163, was the community. Scott, undergo. the 223 A.2d E. Wilson 423 Pa. at v. present ; case, (1967) Fillipo Di there is S.W.2d 299 In the community Preston, testimony 53 Del. A.2d to the stand- no party Gray disclosure; Grunnagle, neither ob- ard of but there accepted jects testimony was that the to this stand- omission. Grunnagle, although Court did not direct a he ad- the testified although plaintiff the Gray for the was verdict the vised Mr. phy- positive “serious”, record indicates that the defendant he was may pa- poten- inform sician failed to the explained and its the of that he would 223 A.2d 673. tient a 10 to risk tial risks. 423 Pa. 15% proof operation; instead of be worse after the said that the burden The Court op- in- to show the said whether there was an on the was unauthorized, question and that it formed consent was a eration jury. whether under to decide was for a plaintiff had all circumstances urges position Plaintiff also proved sustained this burden that because Drs. did not advise preponderance the evidence the decedent methods alternative was not informed.10 thyroid of treatment for the consent was testi charge informed. F. W. informed consent “surgery opinion Pennsyl- fied that in his present conformed to the only Sip- applicable method Gray to [Mrs. rule set v. Grunna- vania forth ling’s] testimony the From gle. Judge case.” this indi- instructions Nealon’s jury could infer there was no only well if it is cated that a consent is valid Ervin, quali knowledgeable”. alternative. Dr. E. Carl “informed He said expert, fied medical physicians as a testified that have advised the should only op- consequences Mrs. “had one alternative decedent * * * surgery. possi- and that was If she eration as well as alternative on, charge accurately had not re- been she would thus bilities. certainty have died with mathematical flected law and was fair * * plaintiff. *.” Disclosure alternative treatment means disclosure of alterna- We are there also satisfied particular patient tives for and not a question was sufficient evidence on the theory. recital of medical casebook Mrs. of consent to warrant submission previously been treated with this issue to medication, although the evidence is thyroid enlarged suffered from an overwhelming may properly far from some time. She was sent to the defend be inferred that she of this was aware ants, specialists thyroid surgery, spe treatment and had found it unsatisfac- cifically and was admitted tory. hospital purpose. for that brings plaintiff’s This us to second physicians they testified that told her point appeal —the They serious. on the not, however, according their testimo erroneous and the record is devoid of ev- ny, percentage inform her of the risk of jury idence from which the could con- Although death.11 this omission can be fact, any emergency did, clude that setting one, a serious of this case exist. require it does not us to hold mat as a It that is well established ter of law that the defendants failed to required if an discharge consent is for their burden of disclosure. going bility to Grunnagle when I don’t think it’s 10. The Court did not indi- happen. weight any given cate if what should be signed hospital But death is hazards Q. to the release form. pa- you operate very toxic on a when impels tient, not, 11. Fairness us to note the follow is it Doctor? per- ing testimony by Well, you given A. if consider one Dr. F. W. is, Wright hazard, say yes damaging it which cent I would was defendants’ a (N 262): you any more case don’t have but when .T. usually you you tell them “Q. them than that don’t Did tell that death they’re possibility? going was a to die.” accept possi- I do not a A. death as op emergency Temple University Hospi- exists and an immediate Chairman at patient’s tal, reviewing is needed to the medi- eration save indicated after however, get- Plaintiff, that contends that life.12 cal charts Mrs. “was drugs properly judge ting define did not trial into state where the [the] unexpect emergency an as “a or and she sudden not control her [could] [would] severity temporarily slip a ed further back into the event creates added, dangerous usually necessitat Burnett “it condition was disease”. proceed interrupt quick defi immediate or now action” —a the time to adequate process by of an nition takes from a on removal this entirely thyroid gland.” subject.13 different amount emergen judge did not define trial Accordingly, District the order of the general cy, explained principle of denying plaintiff’s motions emergency exception and told judgment trial will be n. v. or a new o. they jury conclude that would have to affirmed. an immediate neces that Judge SEITZ, (concurring in Circuit sary Sipling’s to save Mrs. life dissenting part part). health, exception this would be agree opinion applicable. majority I order of the extent that affirms the testimony in this case denying plaintiff’s mo- the district court meager emergen on the existence anof judgment tion for a n. I do so be- o. cy. Nonetheless, judge was not trial I am satisfied the evidence cause that required rule as a that matter lawof by informed whether evaluated emergency particu no existed. This is Pennsylvania law the federal or stand- larly reply in view of the affirmative so ard, resolved created an issue on Dr. F. a W. asking cross-examination there contrary majority However, emergency per was an at the time he court, I think it was error surgery.14 On direct examina deny plaintiff’s motion district court tion, explained Dr. F. W. majority’s conclu- new trial. The a February 6th, that on he concluded that premised on determination sion is its losing the medication was its effective which warrant- that there was evidence ness on Mrs. and that giving court in ed the district might then he never have agree. emergency. I cannot again. the chance major- upon relied The evidence Wright agreed F. fa- Dr. M. with his creating ity opinion as issue diagnosis ther’s testimony is the doctors’ undergoing change response med- required the emergency existed which opinion He ication. also said it “if she hadn’t been on she true; testimony accept I time. Emory would have died.” Bur- Dr. W. undisputed facts under the but nett, Surgery Professor of and Emeritus emer- There was no immediate Bachrach, “Q. 12. E. A.2d Barnett v. gency required (Mun.Ct.D.C.1943), cited and cases there, February 6th, 1964, Doc- supra. Physi- note 1 Gravis Alice, tor? Surgeons Hospital cians and Yes, just explained that, Mr. A. I 1968), (Texas, cited S.W.2d drugs Her seemed Markowitz. Strain, plaintiff, and Rolater v. 39 Okl. effectiveness, lost their respective (1913) P. point, is not she you delay courts ruled that an more and this more and existed was you’re very apt more, have a Forge you Borough, able to never will Scaccia v. Pa. Old 244). (N.T. on.” 94 A.2d 563 Plaintiff’s points specifically re- did not quest emergency. this definition of “emergency” an not establish did case informed for an need excused hos- Plaintiff’s wife was consent. days period total of over

pital for a ques- one and no prior to the testimony that tions the doctors’ contemplated only treatment admission to the date from hospital. disputed that two It is not signed by plaintiff forms were blank consenting wife, respectively, Moreover, de- operation. an spoke plain- fendants testified that days two tiff about before “ei- told him that it would be done following days.” The ther two pro- reality is defendants operation well cured a consent to the performed. This, then, is it was opera- required not a case which tion consent before a Merely be obtained. because thereafter denied that the informed one does treat- not warrant a though ment the events prior occurred. I would therefore set aside the verdict grant a new trial because the general returned a and it verdict possible say therefore not jury’s verdict result from an un- finding warranted there was emergency which need to excused the procure an informed consent. HAWKINS, Appellant,

Robert Warden, BENNETT, John E. Iowa State Penitentiary, Appellee. No. 19719. Appeals, United States Court of Eighth Circuit. March

Case Details

Case Name: John N. Dunham, Administrator of the Estate of Dorothy Louise Sipling, Deceased v. Frederick W. Wright and Frederick M. Wright

Court Name: Court of Appeals for the Third Circuit

Date Published: Mar 19, 1970

Citation: 423 F.2d 940

Docket Number: 18077

Court Abbreviation: 3rd Cir.