*2 CERCONE, CAVANAUGH, Before JOHNSON and JJ. JOHNSON, Judge: Pennsylva- consider appeal,
In this we are asked to whether failed to recognizes nia law a cause of action where a doctor to the administration of obtain his informed consent block. Because we find that we are an intercostal nerve limits actions for informed by prior bound case law which proce- involving surgical to situations dures, that constrained to affirm the trial court order we are objections to those granted preliminary Dr. John A. McPhail’s informed of the which involved paragraphs complaint consent. Nonetheless, reservations compelled express we are our regarding this result. ribs. Morgan
In Barbara fractured two her October in and persistent lingering pain due to December McPhail, ribs, from A. sought around her she treatment John pain by attempted Dr. McPhail to relieve Barbara’s M.D. block, injecting which involves performing an intercostal nerve that Following into the area around the ribs. anesthesia and short of breath and very Barbara became weak procedure, him of her condition. telephoned Dr. McPhail to inform Thereafter, emergency to the for medi- reported hospital she care, that she had sustained a cal where it was determined of the intercostal nerve block. lung as result collapsed right Dr. husband, against suit Joseph, then filed and her Barbara he had failed to McPhail, things, that among other alleging, prior performing informed consent obtain Barbara’s objections in the preliminary McPhail filed Dr. procedure. Morgans’ of the paragraphs as to those nature a demurrer consent, complaint which concerned the doctrine for necessary only arguing that informed consent and, according- court agreed The trial operative procedures. Morgans filed motion ly, granted a demurrer. reconsideration, Morgans denied. then filed to 42 appeal pursuant Pa.C.S. petition permission 702(b), Court, § granted. May which was See Order of dated 1,1991. This followed. appeal, Morgans
On assert the trial erred Specifically, granting preliminary objections. Dr. McPhail’s *3 they determining contend erred in the that trial court that doctrine of informed does not to the this apply consent facts of case. in an from an scope appeal grant
Our
review
order
objections in the
a
ing preliminary
nature of
demurrer is
Cramer,
231,
1175,
Pa.Super.
v.
414
606 A.2d
plenary. Love
(1992).
denied,
634,
Moreover,
appeal
533 Pa.
patient right regarding to medical self-determination surgical procedure.” by Sinclair v. operative or Sinclair Block, 568, 1137, (1993), citing Gray 534 Pa. 1139 633
74
(1966).
Grunnagle,
supreme
v.
423 Pa.
Our
has held
or
physician
surgeon
patient
who fails
advise
facts, risks, complications
material
and alternatives to sur-
gery
[person]
patient’s
which a reasonable
in the
position
would have
significant
deciding
considered
whether
ensue,
have the
operation
damages
is liable
that a
patient
prove
relationship
need
causal
exists
between the
physician’s
surgeon’s failure
disclose
information and the
patient’s
undergo surgery.
consent
Cassel,
(1992).
197, 202,
Gouse v.
532 Pa.
615 A.2d
“The basis of an action for a lack of informed consent is that
occurs,
physician
when a
touches a
a technical
touching
unless that
is done with the
consent.” Wu
352, 355-56,
(1992),
Spence,
v.
605 A.2d
dismissed,
(1993),
534 Pa.
632 A.2d
appeal
citing
Gray, supra.
goal
provide
of this doctrine “is to
with material
information
necessary
determine
proceed
procedure
whether to
with the
Sinclair,
or to
in the present
supra,
remain
condition.”
570,
To determine whether the trial court erred in conclud that the doctrine of informed does not to an ing apply block, necessary it intercostal nerve understand the developed. manner which the law this area has Roberts, 260, 263, Cooper denied, (1971), gastroscopio underwent examination, during fiberscope which doctors lowered a into photograph purposes diagno her stomach “to area *4 patient sis and treatment.” Doctors never informed the of Rather, any procedure. collateral risks associated with the that “a they relatively simple assured her the examination was (there) that not diagnostic procedure any and should be However, during trouble with it.” Id. at examination, punctured, stomach was and she patient’s to required emergency surgery perforation. seal patient alleging negligence filed suit and lack of informed trial, jury consent. At rendered a verdict favor of the to On this Court was asked determine appeal, doctors. should which the doctors’ conduct proper against standard we noted Preliminarily, have been weighed. the gastroscopic dispute was some to whether
[t]here patient] surgical operation. [The examination as a qualified special for the transported was to area anesthetized examination, closely to relate the occurrences which seem However, if examination normal surgical procedure. to the two of types proce- there is distinction between the any dures, purposes of this such a distinction immaterial or not duty issue. same disclosure obtains whether technically operative. can be termed treatment added). Thus, (emphasis 265 n. A.2d at 649 n. 2 Id. at be informed concluded that the was entitled we material person would consider those risks that a reasonable undergo his or her treatment. decision However, case in only Cooper appears same of disclo physicians duty has have the stated In every non-surgical procedures. or concerning sure have stead since courts of this Commonwealth Cooper, case any of informed consent to apply refused the doctrine fastly For surgical. that is treatment not procedure 440, 442-43, Shanahan, v. example, Malloy (1980) on question the sole (plurality), treatment to a “whether doctor who renders was of a consisting therapeutic administration obligated effects is to secure potentially dangerous known side In that treatment....” informed consent to the case, taking after partially orally became blind court, years. The period over a of twelve prescription drugs necessary to a prior informed consent is recognizing that concluded that such surgical operation, “ha[d] therapeutic been extended to treatment....” at 804. to consider whether the again asked this Court to the oral admin- applicable consent was doctrine Smith, drugs. prescription Boyer istration (1985). Malloy looking guidance, After *5 we concluded that the doctrine should be limited to only those involving surgical cases procedures. reaching conclusion, this we reasoned that Gray, supra, our court supreme expressly grounded [i]n its adoption upon of the informed consent doctrine the legal theory that performance procedure of a medical without a patient’s informed consent constitutes a technical assault or battery. expand applica- To now the doctrine’s current bility to cases involving therapeutic administration from, drugs radically depart would be to and indeed obliter- ate, the Gray foundation which the decision stands. only unpersuaded Not are we that such expansion is neces- sary, we consider ourselves bound our by supreme court’s Gray. pronouncements
Id.
Subsequently, United States District Court for the law, Eastern District of Pennsylvania, applying Pennsylvania considered whether the administration of prescriptive drugs required informed consent when such drugs injected were than taken orally. Karibjanian v. Thomas Jefferson rather (E.D.Pa.1989). Hosp., Univ. F.Supp. The court Boyer recognized was the leading Pennsylvania case on issue informed consent as it relates to the administra- tion of drugs, ground but stated that middle over which “[t]he Boyer leapt includes a case plaintiffs like the injected which the A with a substance. touching occurs, one, perhaps painful yet something it is less than Id. at 1084. That court determined that surgery.” it is the injection need for an which the [w]hen it disputes, impose duty is reasonable to of informed example, consent. For there are some drugs may orally by injection; administered inject the decision to such a should be only made with the hand, consent. On the other when it is the substance administered, administration, not the method of which is ... it challenged duty is absurd to invoke the of informed touch or nurse must simply physician because the inject drug. *6 Id. v. Spence, issue in Wu
This
addressed a similar
case,
intravenously
was
with
supra.
patient
In that
a
treated
failed
that her doctor
brought
alleging
She
suit
an antibiotic.
neuropathy
of peripheral
inform her of the
risk
potential
to
the
found that
the treatment.
trial court
a result of
of
of
lack
to
a cause
action based
failed
state
patient
of the doctor.
granted a nonsuit
favor
informed consent and
touching
that the
involved
appeal,
patient
the
asserted
On
to
drug
of
sufficient
the
was
the intravenous administration
of
a cause
required
support
the
of
form
basis
alternative,
In
she
of
consent.
for lack
informed
action
standard
adopt
negligence
Court to
a
urged this
contention,
first
we determined
patient’s
As to the
consent.
support
injection of the
was not sufficient
that the
damage
by
caused
of
claimed
cause
action because
Id. at
insertion
of
the action of
drug,
by
the needle.
Further, we
396, citing Karibjanian, supra.
355,
605 A.2d at
to a
consistently
has
limited
that informed consent
been
stated
theory.
adopt
negligence
declined
battery theory, and we
Brandywine
of
Finally,
in the recent case
Hoffman
(1995),
Helen Hoffman
Hosp.,
397
(the
died
patient)
her
after she
filed suit on behalf of
mother
contaminated
contracting
AIDS virus from
as a result
during
maintained
she received
a transfusion. Hoffman
blood
in-
patient’s
obtain the
improperly
the doctor
failed to
the blood transfusions.
administering
formed consent before
surgical
procedures
operative
that “when
court stated
involved,
as to
obtain informed consent
physician
are
must
injected drugs.” Id. at
explained
401. It
661 A.2d at
“[bjoth
potential
latent harm
the method of insertion
inserted, or otherwise introduced
any
injected,
substance
may during surgery
there
body
into the
and left
at 401
subject of informed consent.” 661 A.2d
omitted). However,
Hoffman,
(emphasis
hours
seven
approximately
the contaminated transfusion
given
Thus,
after surgery.
because it was not
during
introduced
surgery, this Court concluded that the doctor
required
was not
to disclose the attendant risks and alternatives to transfusion.
light
foregoing authority,
we are constrained
to conclude that under the current
in Pennsyl
state
the law
vania, the
applicable
doctrine of informed consent is
only when
subject
to a surgical
procedure.
(doctrine
Sinclair,
Compare
supra
of informed consent inap
plicable
physician’s
use of
forceps
facilitate natural
Trainer,
delivery);
Matukonis v.
441 Pa.Super.
(doctrine
(1995)
of informed consent
inapplicable
chiro
practic manipulation
patient’s neck,
as it was not
nature),
(1995);
alloc.
granted,
Pa.
(1987) Nonetheless, . a second function of the intermediate appellate court is to stimulate by revision the law highest court where reform or clarification is necessary. Id. We believe that this is such a case. Although we are bound Sinclair, Wu, by Hoffman, and and Boyer must affirm the trial court order granting objec Dr. McPhail’s preliminary tions, we express our reservations regarding battery both the theory of informed consent and the distinction between surgi cal non-surgical procedures theory. under that this
Indeed, members of are not the first we battery should be abandoned theory whether question supra, Judge In Malloy, negligence of a standard. favor dissent, he cited with lengthy authored Hoffman in other “overwhelming courts among trend approval being ground- the doctrine as jurisdictions recognizing toward at 421 A.2d battery.” Id. at rather than negligence ed on cases). following this explained that courts (citing He obtain a patient’s that the failure to recognized “have trend con- traditional correspond not informed consent does results rarely omission because the doctor’s cept 446, 421 Id. at injure patient.” intent to from a willful conduct, culpable Similarly, physician’s at 805-06. “the inform, of the ‘touching’ involve a failure to does itself recog- Hoffman Judge patient.” Id. at of informed consent is based nized that the doctrine right has the each adult sound mind principle that Id., citing body. or her is done with his determine what 125, 126, Hosp., New York N.Y. Society Schloendorff (1914). determinations, make In order to such 105 N.E. knowledge- given adequate information must be and the risks attendant options evaluate the available ably Thus, Judge at 806. options. those “[wjhere prescribes a physician Hoffman reasoned involved, of the risks informing properly without and violates the bodily integrity he invades the just if he per- had right know patient’s concomitant pa- obtaining without first surgical operation formed *8 informed consent.” tient’s determined that
Similarly, although the Wu court therapeutic of administration required recognized that theory, it drugs under the its to reconsider may Supreme time for the Court [i]t treat- use of various Gray. greater in decision the risk associated with to a where ments has led situation Further, there bemay effects considerable. adverse side effects, patient in of adverse side light possibility A pa- an alternative treatment. wish to chose may [sic] no less should be undergo drug therapy tient’s decision informed than a decision to undergo surgery. The law require should that a physician provide his patient with all available information options. and findWe the dissenting opinion Judge in Hoffman ... Malloy persuasive in regard to adopting negligence any standard to eliminate present confusion in the law. Under the present develop- law, ment of the whether or not to change make such a the law is not within province of this Court.
Wu,
356-57,
supra, at
Thus, although we have reservations regarding the law as it stands, now we are constrained to affirm the order granting Dr. McPhail’s preliminary objections to those paragraphs the complaint which concerned the doctrine of informed con- sent.
Order Affirmed. CAVANAUGH, J., files a concurring statement. *9 CAVANAUGH, concurring: Judge, the informed to extend I see no reason Since confínes, to redefine doc- present its beyond doctrine trine, only. in the result I concur FOUNDATION, Corporation. the BARNES
In re Appeal of BARNES FOUNDATION (“Foundation”). Trustees
its Pennsylvania. Superior Argued May 1995. Filed 1996. March