Bаrbara MORGAN and Joseph Morgan, her husband, Appellants, v. John A. MacPHAIL, M.D., Appellee. Kathleen Breslin WALKER and James Walker, Appellants, v. Albert ROSE, D.P.M., and Curt D. Miller, M.D., Appellee.
Supreme Court of Pennsylvania.
Argued March 5, 1997. Decided Dec. 24, 1997.
704 A.2d 617
John A. Bass, Pittsburgh, for John A. MacPhail, M.D.
Stanley B. Gruber, Philadelphia, for Kathleen and James Walker.
James I. Devine, Philadelphia, for Curt D. Miller, M.D.
Edward Griffith, Wayne, for Albert Rose, D.P.M.
OPINION OF THE COURT
CASTILLE, Justice.
The sole issuе before this Court in these consolidated appeals is whether the doctrine of informed consent should be expanded to include the non-surgical administration of medication where the claimed injury results from the method and location of administration of the medication rather than the medication itself. Because we find that thе doctrine of informed consent applies only to surgical procedures, we affirm the Superior Court holdings in both cases.
A. Morgan
On October 20, 1988, appellant Barbara Morgan fell and fractured two ribs. The pain of the injury did not subside with time; therefore, Mrs. Morgan sought treatment from Dr. MacPhail. On December 14, 1988, Dr. MacPhail performed an intercostal nerve block1 in an effort to alleviate Mrs. Morgan‘s pain. Later that day, Mrs. Morgan experienced weakness and shortness of breath and telephoned appellee. She then reported to the hospital emergency room where she learned that she suffered a right pneumothorax2 as a result of the intercostal nerve block procedure.
Mrs. Morgan and her husband filed suit against Dr. MаcPhail claiming that he failed to obtain informed consent prior to performing the procedure. Dr. MacPhail filed preliminary objections in the nature of a demurrer arguing that informed consent is necessary only for surgical or operative procedures, and the trial court granted a demurrer. Mrs. Morgan appealed tо the Superior Court, and the Superior Court affirmed.
B. Walker
On February 12, 1991, appellant Kathleen Breslin Walker began treatment with appellee Albert Rose, D.P.M., for com-
Mrs. Walker and her husband filed suit against Drs. Rose and Miller claiming that Dr. Rose failed to obtain informed consent prior to injecting the steroids into Mrs. Walker‘s right superficial adventitious bursa and that Dr. Miller failed to inform Mrs. Walker that she could develop a skin slough as a result of the surgery. Following a three-day trial, the jury returned a defense verdict. Specifically, the jury found that Dr. Rose was negligent, but his negligence was not a substantial factor in causing the injury. The jury also determined that no reasonable person in Mrs. Walker‘s position would have considered the risk of a skin slough in her decision to undergo the surgery and, therefore, found in favor of Dr. Miller. Post-trial relief was denied. Mrs. Walker appealed to the Superior Court, and the Superior Court affirmed.
It has long been the law in Pennsylvania that a physician must obtain informed consent from a patient before performing a surgical or operative procedure. See Sinclair v. Block, 534 Pa. 563, 633 A.2d 1137 (1993); Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966). Informed consent, however, has not been required in cases involving non-surgical procedures.5
Neither the Pennsylvania legislature nor courts have defined surgical or operative procedure; however, “operate” is defined in Taber‘s Cyclopedic Medical Dictionary 1256 (16th ed.1989) as “[t]o perform an excision or incision, or to make a suture on the body or any of its organs to restore health.” “Surgery” is defined in Black‘s Law Dictionary 1442 (6th ed.1990) as “that branch of medical science which treats of mechanical or operative measures for healing diseases, deformities or injuries.” “Operation” is defined as “an act or succession of acts performed upon the body of a patient, for his relief or restoration to normal conditions, by the use of surgical instruments as distinguished from therapeutic treatment by the administration of drugs or other remedial measures.” Id. at 1092.
The procedures involved in the instant appeals do not fall within the definition of surgical or operative procedures because neither involved an excision or incision or the use of surgical instruments; rather, they involved the therapeutic administration of drugs. In fact, the procedures are more сlosely analogous to the introduction of medication through an intravenous needle or line because the instant procedures and the intravenous use of medication both involve the use of needles to inject medication rather than the use of surgical instruments. Courts applying Pennsylvania law have not required informed consent in cases involving intravenous administration of medication. Wu v. Spence, 413 Pa. Super. 352, 605 A.2d 395 (1992) (no informed consent needed for
The rationale underlying requiring informed consent for a surgical or operative procedure and not requiring informed consent for a non-surgical procedure is that the performance of a surgical procedure upon a patient without his consent constitutes a technical assault or a battery because the patient is typically unconscious and unable to object. Gray v. Grunnagle, 423 Pa. at 155, 223 A.2d at 668-69. Appellants here argue that the traditional battery or assault-based theory should be abandoned in favor of a negligencе standard. The basis for their argument is their assertion that a patient has the right to determine the scope and direction of medical treatment no matter which form the treatment takes, whether surgical or non-surgical. The patient, appellants urge, has the right to make an informed choice as to electing to undergo a medical procedure after having been presented with the alternatives and the risks attendant to each alternative. This argument, however, flies in the face of the traditional battery theory. It is the invasive nature of the surgical or operative procedure involving a surgical cut and the use of surgical instruments that gives rise to the neеd to inform the patient of risks prior to surgery. Id. Neither of the procedures performed in the instant appeals were invasive in nature as both involved the injection of medication which does not rise to the same level of bodily invasion as surgery.6
NIGRO, J., files a dissenting opinion.
NIGRO, Justice, dissenting.
The majority today perpetuates an unfounded distinction in the law of informed consent between surgical and non-surgical proсedures. Our lower courts have urged the Court to abolish this distinction and the legislature has enacted legislation superseding lower court precedent based upon it. Since there is no basis to require informed consent before surgery but not before other medical procedures, I would reverse the lower courts’ decisions and allow Appellants to pursue their claims.
The Court discussed the doctrine of informed consent in Gray v. Grunnagle, 423 Pa. 144, 223 A.2d 663 (1966). The Gray case produced a plurality opinion with a majority of the
This principle was recognized in Cooper v. Roberts, 220 Pa. Super. 260, 286 A.2d 647 (1971), where the Superior Court evaluated a jury instruction addressing a doctor‘s duty to disclose risks to a patient who underwent a gastroscopic examination. The court held that a doctor must disclose risks that a reasonable man would consider material to his decision to undergo treatment. While there was a dispute as to whether the examination was a surgical procedure, the court stated that the duty to disclose applied whether or not the treatment at issue was technically operative. Id. at 266-67 n. 2, 286 A.2d at 650 n. 2.
It appеars that the notion that informed consent is not required for non-surgical procedures developed from the opinion of a Superior Court judge in Malloy v. Shanahan, 280 Pa. Super. 440, 421 A.2d 803 (1980). The court rejected a claim that informed consent was required when prescribing a therapeutic drug. In the opinion, the authoring judge quoted the trial court‘s statement that “the doctrine of informed consent has been applied only to suits involving surgical operations....” Id. at 443, 421 A.2d at 804. The second judge on the panel concurred in the result and the third wrote a dissenting opinion maintaining that informed consent was required.
Presented again with the issue raised in Malloy, the Superior Court stated in Boyer v. Smith, 345 Pa. Super. 66, 72, 497 A.2d 646, 649 (1985), that informed consent “should continue to be limited” to cases involving surgery. Like Malloy, Boyer involved a patient who was allеgedly not informed of the risks of oral medication. The court stated that to expand the
In discussing Boyer, a district court found that the Boyer court went beyond the facts before it in stating that informed consent is only required for surgical procedures. Karibjanian v. Thomas Jefferson Univ. Hosp., 717 F. Supp. 1081, 1084 (E.D. Pa. 1989). The Boyer court found thаt informed consent was not required when prescribing oral medication because there was no touching implicating a battery. Thus, the district court aptly stated that:
The middle ground over which the Boyer court leapt includes a case like the plaintiff‘s [in Karibjanian] in which the patient is injected with a substance. A touching occurs, perhaps a painful one, yet it is something less than surgery. Id. The district court concluded that it was reasonablе to impose a duty of informed consent when a patient challenges the need for an injection. Id.
Nonetheless, as the majority recognizes, the Superior Court has repeatedly held that informed consent is only required for surgical procedures.1 The majority fails to mention that the Superior Court has also stated that it finds the surgical/ non-surgical distinction without basis. See, e.g., Hoffman v. Brandywine Hosp., 443 Pa. Super. 245, 661 A.2d 397 (1995) (noting the artificiality of the distinction and one judge concurring solely to emphasize her discomfort with it); Stover v. Assoc. of Thoracic and Cardiovascular Surgeons, 431 Pa. Super. 11, 635 A.2d 1047 (1993) (noting the court‘s trouble with the distinc-
The legislature‘s recent amendmеnts to the Healthcare Services Malpractice Act,
Other states have imposed informed consent requirements based upon a negligence theory rather than a battery theory.2 These states have generally recognized that the failure to get informed consent is not a technical bаttery because the doctor‘s omission is not due to a willful intent to injure the
In sum, there is no basis to distinguish between surgical and non-surgical procedures in thе law of informed consent. I would thus abolish this distinction and in addition, I would join other jurisdictions and adopt a negligence theory to support informed consent requirements.3
Notes
(a) Except in emergencies, a physician owes a duty to a patient to obtain the informed consent of the patient or the patient‘s authorized representative prior to conducting the following procedures:
(1) Performing surgery, including the related administration of anesthesiа.
(2) Administering radiation or chemotherapy.
(3) Administering a blood transfusion.
(4) Inserting a surgical device or appliance.
(5) Administering an experimental medication, using an experimental device or using an approved medication or device in an experimental manner.
This legislation expands in several material ways the applicability of the doctrine of informed consent to cover procedures and treatments not previously inсluded in case law. For example, prior to this legislation, courts had held that the informed consent doctrine did not to apply to radiation or chemotherapy (Dible v. Vagley, 417 Pa. Super. 302, 612 A.2d 493 (1992), appeal denied, 535 Pa. 619, 629 A.2d 1380 (1993)), or to blood transfusions unless incident to surgery (Hoffman v. Brandywine Hospital, 443 Pa. Super. 245, 661 A.2d 397 (1995)). Such procedures, however, now require informed consent under the new statute.
While this new legislation is not applicable to the instant appeals because the injuries complained of occurred prior to the effective date, even under this legislation informed consent would not be required in these cases. Informed consent under the statute is only required for the administration of medication where the medication being administered is experimental or is administered in an experimental manner. Neither appellant has asserted either of these situations which would arguably require this Court to look to the statute for guidance.