This is an appeal by Michael Kirschbaum, D.O., (hereinafter appellant) from the judgment in the amount of $631,676.52
1
Appellee, Evelyn Shaw, was first seen by аppellant, a cardiologist, in 1982 and, at that time, she had experienced two heart attacks and was suffering from a number of medical problems including congestive heart failure, high blood pressure, and chronic kidney disease. Appellant, having first treated Mrs. Shaw when she was admitted to Osteopathic Hospital, via the emergency room, with an episode of chest pain in April of 1982, subsequently acted as Mrs. Shaw’s attending cardiologist. Physicians at Hahnemann Hospital thereafter in January of 1983 diagnosed Mrs. Shaw as suffering from an aortic aneurysm. This condition was monitored during three subsequent hospitalizations at Hahnemann Hospital in 1983 for heart and kidney problems, but the physicians at Hahnemann declined to advise surgical repair of the aneurysm because of Mrs. Shaw’s overall physical condition.
Appellant recommended to Mrs. Shaw that she travel to the Texas Heart Institute located in Houston to have the dissecting aortic aneurysm surgically repaired by Doctors Michael DeBakey and Denton Cooley, based on his belief that due to the complexity and morbidity rate associated with the surgery, the expertise of these world-renowned surgeons was required. Mrs. Shaw, although reluctant to travel to Texas, eventually agreed to go to the Texas Heart Institute and Dr. Kirschbaum assisted with both the travel and financial arrangements for the Shaws.
Dr. Denton Cooley performed surgery on Mrs. Shaw on January 18, 1984, successfully resecting the aorta. Sadly, the absence of blood flow during surgery caused Mrs. Shaw to become partially paralyzed from the waist down, and unable to stand, or to walk, or to control her bladder or bowels. While paralysis as a result of the cessation of blood flow during surgery is a recognized risk inherent in repair of the aorta, the Shaws alleged that they were never informed of this risk or advised as to how or if the surgical repair of the aorta would effect Mrs. Shaw’s other medical problems. Following her return to Philadelphia, Mrs. Shaw was hospitalized for long periods of time for rehabilitation and training in the activities of daily hving as a paraplegic. After eight years of surely gallant resolve, Mrs. Shaw died of unrelated medical conditions.
Appellant first argues that he is entitled to judgment n.o.v. because, as a matter of law, the Shaws failed to present a
In reviewing a motion for judgment n.o.v., “the evidence must be considered in the light most favorable to the verdict winner, аnd he must be given the benefit of every reasonable inference of fact arising therefrom, and any conflict in the evidence must be resolved in his favor.” Broxie v. Household Finance Company,472 Pa. 373 , 380,372 A.2d 741 , 745 (1977). See also, Metts v. Griglak,438 Pa. 392 ,264 A.2d 684 (1970) and Gonzalez v. United States Steel Corp.,484 Pa. 277 ,398 A.2d 1378 (1979). Moreover, [a] judgment n.o.v. should only be entered in a clear case and any doubts must be resolved in favor of the verdict winner. See Atkins v. Urban Redevelopment Authority of Pittsburgh,489 Pa. 344 ,414 A.2d 100 (1980) and Steward v. Chernicky,439 Pa. 43 ,266 A.2d 259 (1970). Further, “a judge’s appraisement of evidence is not to be based on how he would have voted had he been a member of the jury, but on the facts as they come through the sieve of the jury’s deliberations.” Brown v. Shirks Motor Express,393 Pa. 367 , 375,143 A.2d 374 , 379 (1958).
Moure v. Raeuchle,
Appellees alleged in their complaint that “contrary to his fiduciary duties ... [appellant] fail[ed] to give to Evelyn Shaw a full and complete disclosure of the risks and complications of thе surgical procedure he coerced her to undertake [and] did use undue influence, coercion and duress to pressure said Evelyn Shaw to undergo cardiovascular surgery.” At trial, appellees sought to establish that appellant fell below the standard of care of a reasonable and prudent attending cardiologist based upon the expert testimony of Jonas Brachfeld, M.D., that appellant had a duty to advise Evelyn Shaw of all of the risks attendant to the proposed surgery and how such surgery would affect each of her pre-existing conditions as
Plaintiffs theory of recovery [was] based on Dr. Kirschbaum’s breach оf a duty which was not imposed upon him by the law but which he himself sought to undertake. See § 323 of the Restatement of Torts 2d.
Dr. Kirschbaum gratuitously expanded the scope of his duty to Mrs. Shaw when he undertook the ‘service’ of persuading his patient to travel to the Texas Heart Institute for corrective surgery rather than merely referring her to the thoracic surgeon for an evaluation.
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The еvidence introduced at trial unequivocally established that Dr. Kirschbaum’s actions went much further than simply advising a patient to seek a consultation or a second opinion regarding the advisability of surgery to correct her aneurysm. Rather, the testimony reveals that he urged, persuaded and actively participated in convincing the Shaws to go to the Texas Heart Institute to undergo the surgery. He made necessary travel arrangements. Once he undertook the advocacy of surgery at the Texas Heart Institute, he was required to perform this duty non-negligently. Under these facts, Dr. Kirschbaum was required to advise his patient to the best of his ability about the effects of the propоsed surgery upon her pre-existing medical conditions as well as the complications associated -with the surgery. It is his failure to fulfill this duty which results in liability in negligence. u
A breach of a legal duty is a condition precedent to a finding of negligence, and, unlike the trial court, we are unable to find the breach by appellant of any legal duty owed to Mrs. Shaw. Submission of the issue to the jury was, therefore, error.
The appellate courts of this Commonwealth have historically interpreted the doctrine of informed consent as applying only to the surgeons who perform operations without first securing the informed consent of the patient. Friter v. IOLAB [Iolab] Corp.,414 Pa.Super. 622 , 626,607 A.2d 1111 , 1113 (1992). In determining whether the patient’s consent to a surgical operation was “infоrmed,” one must consider whether the physician disclosed to the patient all of the facts, risks, and alternatives, which a reasonable person would deem significant in making a decision to undergo the recommended procedure. Moure v. Raeuchle,529 Pa. 394 , 404,604 A.2d 1003 , 1008 (1992); Doe v. Dyer-Goode,389 Pa.Super. 151 , 156,566 A.2d 889 , 891 (1989), appeal denied,527 Pa. 587 ,588 A.2d 509 (1990); Rogers v. Lu,335 Pa.Super. 595 ,485 A.2d 54 (1984). An operation performed without the patient’s informed consent constitutes a battery upon the patient, thus making the physician or physicians liable for any injuries regardless of whether the surgery was negligently performed. Moure v. Raeuchle, supra,529 Pa. 404 ,604 A.2d at 1008 ; Doe v. Dyer-Goode, supra,389 Pa.Super. 155 ,566 A.2d at 891 . Levenson v. Souser,384 Pa.Super. 132 ,557 A.2d 1081 (1989), appeal denied,524 Pa. 621 ,571 A.2d 383 (1989); Sagala v. Tavares,367 Pa.Super. 573 ,533 A.2d 165 (1987), appeal denied,518 Pa. 626 ,541 A.2d 1138 (1988). See also Gray v. Grunnagle,423 Pa. 144 ,223 A.2d 663 (1966); Smith v. Yoke,412 Pa. 94 ,194 A.2d 167 (1963).
Under normal circumstances only the physician who performs the operation on the patient has the duty of obtaining the patient’s informed consent. Therefore, Dr. Clough, who only performed the appellant’s pre-surgery physical examination, and Nurse Lockerman, who is not a physician, were under no duty to obtain the appellant’s informed consent to the operation.
Foflygen v. Zemel,
As an intermediate appellate court, this Court is obligated to follow the precedent set down by our Supreme Court. In Gray v. Grunnagle, supra, and Smith v. Yohe, supra,412 Pa. 94 ,194 A.2d 167 , our Supreme Court held that the patient’s consent is a prerequisite to a surgical operation and an operation without the patient’s consent is а battery. Recently, the Supreme Court has re-affirmed this longstanding precedent in Moure v. Raeuchle, supra,529 Pa. 404 ,604 A.2d 1008 . Moreover, there have been numerous decisions of this Court, both panel and en banc, which have applied the rule set forth in Gray v. Grunnagle, supra,423 Pa. 144 ,223 A.2d 663 , and Smith v. Yohe, supra,412 Pa. 94 ,194 A.2d 167 , to informed consent cases. Levenson v. Souser, supra; Doe v. Dyer-Goode, supra,389 Pa.Super. 155 ,566 A.2d 891 ; Sagala v. Tavares, supra,367 Pa.Super. 573 ,533 A.2d 165 ; Sauro v. Shea,257 Pa.Super. 87 ,390 A.2d 259 (1978); Cooper v. Roberts,220 Pa.Super. 260 ,286 A.2d 647 (1971). Thus, we are compelled to analyze informed consent cases under a battery theory until and unless our Supreme Court decides to recognize an informed consent cаuse of action grounded in negligence. Levenson v. Souser, supra,384 Pa.Super. 132 ,557 A.2d 1081 .
Foflygen v. Zemel, supra
[ajlthough Pennsylvania law imposes no duty upon Dr. Kirschbaum, a non-operating physician, to discuss the medically established risks associated with the surgical repair of her aneurysm, he voluntarily assumed this duty when he undertook to advocate that Mrs. Shaw travel to the Texas Heart Institute for the specific purpose to undergo the operation. Dr. Kirschbaum gratuitously expanded the scope of his duty to Mrs. Shaw when he undertook the “service of persuading his patient to travel to the Texas Heart Institute for corrective surgery rather than merely referring her to the thoracic surgeon for an evaluation.
The trial court has, however, provided no legal basis uрon which to find that appellant owed Mrs. Shaw a duty “to discuss the medically established risks” associated with the proposed surgery. The law of this Commonwealth imposes this duty only upon the surgeon actually performing the procedure and neither the trial court nor this Court is free to expand that duty.
II. Section 323 of the Restatement (Second) of Torts
The trial court found that pursuant to Section 323 of the Rеstatement (Second) of Torts, appellant had gratuitously assumed an undertaking, i.e. assisting in the scheduling of the surgical procedure, and had negligently failed to properly perform that undertaking. Section 323 of the Restatement (Second) provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.
Section 323 does nоt obviate the traditional components of a prima fagie case sounding in negligence, but rather substitutes a gratuitous undertaking for the element of duty. A prima facie case of medical malpractice based upon a negligent act or omission requires the plaintiff to establish:
(1) the existence of a duty owed by the physician/defendant to the plaintiff/patient;
(2) a breach of that duty;
(3) that the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the plaintiff/patient; and
(4) damages suffered by the plaintiff/patient that were a direct result of the harm.
See: Mitzelfelt v. Kamrin, 526
Pa. 54, 62,
The trial court found that by undertaking the “advocacy of surgery”, appellant assumed a duty on his part to advise Mrs. Shaw of “the effеcts of the proposed surgery upon her pre-existing medical condition as well as the complications associated with the surgery”. This conclusion is unsupportable under both the law of this Commonwealth and the facts of this case. The trial court concluded that, when appellant recommended that the surgery be performed at the Texas Heart Institute of Drs. DeBakey and Cooley, appellant gratuitously accepted a duty to advise her in conformity with principles of informed consent. Appellant, who had communicated to appellees his belief that Mrs. Shaw would die in the
As heretofore noted, a recovery on a cause of action based on lack of informed consent is predicated upon a technical
Judgment vacated. Case remanded. Jurisdiction relinquished.
Notes
. The jury awarded Mrs. Shaw $200,000.00 in compensatory damages and awarded Mr. Shaw $300,000.00 on his loss of consortium claim.
. Appellant has set forth the issues as follows in the brief presented in support of this appeal:
Whether the learned trial Judge erred in denying defendant's motion for judgment n.o.v. where plaintiff failed to present a prima facie case under any cause of action recognized in this Commonwealth, and instead the court effectively created a duty of informed consent imposed upon referring physicians who do not participate in the surgery involved?
Whether the learned trial Judge abused her discretion in dеnying defendant’s motion for remittitur of Mr. Shaw's consortium claim, particularly where the amount of that consortium award ($300,000) exceeded the late Mrs. Shaw's compensatory award ($200,000)?
The latter issue is rendered moot by our ruling that judgment n.o.v. must be entered in favor of appellant.
. The testimony of Dr. Denton Cooley established that the decision as to the advisability of surgery and the duty to obtain the informed consent of appellee was solely that of Dr. Denton Cooley:
Q. As a general rule, when a doctor such as Dr. Kirschbaum refers a patient to you, is it your practice to make your own diagnosis of the patient’s medical condition before deciding on a specific course of treatment?
A. Yes.
Q. And did you do so with Mrs. Shaw?
A. Yes.
Q. And can you tell us again what your diagnosis of Mrs. Shaw was?
A. It was an expanding dissecting aneurysm of the thoracic aorta.
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Q. Did you alone make the final decision to operate on Mrs. Shaw?
A. Yes. •
Q. As a referring physician, was Dr. Kirschbaum asking you to make the final evaluation whether Mrs. Shaw needed the surgery or not?
A. Let me make it clear. I am not a technician, and I don't respond to an order from some referring physician to do an operation. It is my judgment as to whether it is indicated to do. So if somebody calls up and says, "Fix that man’s aneurysm,” it is my decision whether to fix the aneurysm or not. It was my opinion which was sought, and I make this therapeutic judgment.
Q. And in this case, your opinion was sought by Dr. Kirschbaum.
A. Yes.