Citation Numbers: 661 A.2d 397, 443 Pa. Super. 245
Judges: Beck, Tamilia and Cercone
Filed Date: 6/29/1995
Status: Precedential
Modified Date: 8/26/2023
This is a consolidated appeal from two orders of court granting appellees Gordon Eck, D.O. and Sanda Rajan, M.D. summary judgment in a medical malpractice action. We
On December 3, 1984, decedent Helen M. Perpinka was admitted to Brandywine Hospital with a mass in her left breast. Dr. Sanda Rajan, decedent’s surgeon, performed a left radical mastectomy on December 17, 1984. During the course of pre-operative, operative, and post-operative procedures, Dr. Rajan ordered several blood transfusions. In October of 1986, the American Red Cross notified Dr. Eck, the decedent’s family physician, that a unit of blood transfused to the decedent had been donated by an individual who subsequently tested positive for the presence of HIV antibodies. Tragically, the decedent contracted the HIV virus from the contaminated blood. Before ultimately succumbing to AIDS related complications, decedent suffered chest congestion, drastic weight loss, viral infections, and fatigue.
Appellant Helen Hoffman filed this medical negligence suit on behalf of her deceased mother, Helen Perpinka. The original named defendants were Brandywine Hospital, American Red Cross, American Red Cross Penn-Jersey Region, William C. Sherwood, Dr. Gordon R. Eck, D.O., and Dr. Sanda Rajan, M.D. Appellant reached a settlement with American Red Cross, American Red Cross Penn-Jersey Region and William Sherwood, providing them with a joint tortfeasor release. Brandywine Hospital was dismissed from the action without objection from appellant. Appellant proceeded against Dr. Rajan and Dr. Eck.
In her complaint, appellant accused Dr. Rajan of ordering unnecessary blood transfusions and failing to obtain the patient’s informed consent to those transfusions. Appellant further claimed that Dr. Eck, decedent’s family physician, negligently cared for Mrs. Perpinka after she was diagnosed as HIV positive. Appellees, Dr. Rajan and Dr. Eck, successfully moved for summary judgment. In response, appellant filed the instant timely appeal arguing that because she had stated a valid cause of action against both appellees for negligence and against appellee Dr. Rajan for lack of informed consent, summary judgment was improper.
To state a prima facie cause of action for malpractice, a plaintiff must establish that (1) the physician owed a duty to the patient; (2) the physician breached that duty; (3) the breach of duty was the proximate cause of, or a substantial factor in, bringing about the harm suffered by the patient, and (4) the damages suffered by the patient were a direct result of that harm. Mitzelfelt v. Kamrin, 526 Pa. 54, 62, 584 A.2d 888, 891 (1990). Moreover, a plaintiff must “present an expert witness who will testify, to a reasonable degree of medical certainty, that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered.” Id. at 62, 584 A.2d at 892.
Appellant has maintained throughout this action that Dr. Rajan breached the duty of care owed by a physician to a patient by ordering unnecessary blood transfusions. To that end, appellant' relies on an expert in the field, Thomas H. Gouge, M.D. Dr. Gouge opined:
At issue is the blood transfusion which was the clear cause of Ms. Perpinka’s AIDS and death. Although it is clear in*251 1991 that one would not give a blood transfusion to such a patient unless she was symptomatic from anemia, this was much less clear in 1984.
A general guideline at that time was that no single unit transfusion would be given and transfusion should not be given unless the hematocrit was below 30%, except to replace blood lost at operation.
Ms. Perpinka was not symptomatic from anemia. Her hematocrit was in an acceptable range for surgery. No significant blood [loss] occurred at surgery. No rationale for transfusion is documented in the chart.
Given the patient’s nutritional deficiency and mild anemia with low iron scores, attention to her red cell mass and serum iron was appropriate and the four units of blood transfused only kept her hematocrit in the same range but transfusion was not the only method of dealing with nutritional anemia. Transfusion is hazardous, as the outcome shows, and should only be used when necessary. Accordingly, I believe the four unit transfusion over December 15-17, 1984 departs from the appropriate standards of medical care. The transfusion as a cause of AIDS speaks for itself.
R. at 72a (emphasis added).
Although Dr. Gouge acknowledged the propriety of transfusions to replace blood lost during an operation, he did not conclude that the December 17, 1994 transfusion was appropriate. To the contrary, he opined that the amount of blood lost during decedent’s surgery was insufficient to justify replacement through transfusion. We are therefore confronted with expert testimony that Dr. Rajan’s conduct in ordering unnecessary blood transfusions deviated from accepted medical practice and that a transfusion of tainted blood caused the specified harm.
Appellant next argues that by granting summary judgment, the lower court improperly disposed of the lack of informed consent claim. Specifically, appellant maintains that Dr. Rajan improperly failed to obtain the decedent’s informed consent before administering blood transfusions. Our court has recently authored a comprehensive discussion of the doctrine of informed consent:
The underlying premise of this doctrine is that a physician is precluded from administering to or operating upon a mentally competent adult patient in non-emergency situations without his consent. “Every human being of adult years and sound mind has a right to determine what shall be done with his own body.” In order for the consent to be valid, the physician is duty bound to apprise the patient “of such important matters as the nature of the therapy, the seriousness of the situation, the disease and the organs involved and the potential results of the treatment.”
Stover v. Association of Thoracic & Cardiovascular Surgeons, 431 Pa.Super. 11, 19, 635 A.2d 1047, 1051 (1993) (citations omitted) (quoting Festa v. Greenberg, 354 Pa.Super. 346, 350, 511 A.2d 1371, 1373 (1986), appeal denied, 515 Pa. 580, 527 A.2d 541 (1987)). A physician need not disclose all known information. Id. at 21, 635 A.2d at 1051. Rather, the physician must advise the patient of the material facts, risks, complications and alternatives to surgery that a reasonable person in the patient’s situation would consider significant in deciding whether to undergo the operation. Id.
The basis of an action for a lack of informed consent is that when a physician touches a patient a technical battery occurs, unless that touching is done with the patient’s consent. An emergency situation is, of course, an exception. The case law has consistently refused to extend informed consent to the administration of therapeutic drugs. This Court has consistently limited informed consent to a battery theory. We will not expand informed consent here.
In [Boyer v. Smith, 345 Pa.Super. 66, 497 A.2d 646 (1985) ], the Court held that the doctrine of informed consent should be limited to those cases involving surgical or operative procedures. The Court based this determination on the fact that the Pennsylvania Supreme Court, in Gray v. Grunnagle [423 Pa. 144, 223 A.2d 663 (1966) ], grounded the doctrine of informed consent “upon the legal theory that the performance of a medical procedure without a patient’s informed consent constitutes a technical assault or battery.” The Court in Boyer felt that to expand the doctrine to the administration of therapeutic drugs would totally obliterate the standard set forth in Gray, and therefore, felt bound by the decision of our Supreme Court in Gray. We must agree with the court in Boyer.
Wu v. Spence, 413 Pa.Super. 352, 355, 605 A.2d 395, 397 (1992). See id. (doctor not required to obtain a patient’s informed consent to inject therapeutic drugs outside the realm of surgery). See also Dible v. Vagley, 417 Pa.Super. 302, 612 A.2d 493 (1992), appeal denied, 535 Pa. 619, 629 A.2d 1380 (1993) (physician not held liable for failing to obtain informed consent before administering radiation treatments because those treatments did not involve surgery).
In the instant case, decedent underwent surgery on December 17, 1984 between 7:55 a.m. and 12:15 p.m. The certified record reveals that the fatal transfusion was administered on December 17, 1984 at 7:30 p.m.
Appellant’s final allegation of error concerns the purported negligence of appellee Dr. Gordon Eck in treating decedent after she was diagnosed as HIV positive. In attempting to state a prima facie case, as set forth in Mitzelfelt, supra, appellant relies on the expert report of David H. Solis, D.O.:
To review, it is my opinion that Dr. Eck did not meet the standard of care for a family physician in the treatment of his patient, Helen Perpinka from the time that she was discovered to be HTLV III (HIV) positive to the time that she was referred to an infectious disease specialist____ It is my opinion that because he chose not to refer Mrs. Perpinka to an infectious disease specialist that he undertook these awesome responsibilities on his own and he was ill-prepared to carry them out. This in all likelihood delayed the administration of anti-viral medication which may have hastened the onset of opportunistic disease in Mrs. Perpinka and caused her illness to progress sooner than it might have.
R. at 74a.
As set forth above, to establish a prima facie case of malpractice, a plaintiff must present an expert witness who will testify to a reasonable degree of medical certainty that the acts of the physician deviated from good and acceptable medical standards, and that such deviation was the proximate cause of the harm suffered. Mitzelfelt, supra, 526 Pa. at 62, 584 A.2d at 892. An expert need not testify with absolute certainty or rule out all possible causes of a condition. Id. Likewise, the testimony need not be expressed in precisely the language used to enunciate the legal standard. See In re Jones, 432 Pa. 44, 246 A.2d 356 (1968) (medical testimony need not conform to precise statutory definitions). Rather, expert testimony should be reviewed in its entirety to assess whether it expresses the requisite degree of medical certainty. McCann v. Amy Joy Donut Shops, 325 Pa.Super. 340, 343-44, 472 A.2d 1149, 1151 (1984) (en banc “An expert fails this standard of certainty if he testifies ‘that the alleged cause
Order affirmed in part and reversed in part. We remand for further proceedings with respect to the negligence claim against appellee Dr. Rajan. Jurisdiction is relinquished.
. Expert testimony need not be expressed in precisely the language used to enunciate the legal standard. See In re Jones, 432 Pa. 44, 246 A.2d 356 (1968) (medical testimony need not conform to precise statutory definitions). See also McCann v. Amy Joy Donut Shops, 325 Pa.Super. 340, 343-44, 472 A.2d 1149, 1151 (1984) (en banc) (a reviewing court will consider expert testimony in its entirety to determine whether the opinion has been expressed with a reasonable degree
. Decedent was also given a transfusion during surgery at 10:40 a.m. We shall assume for the purposes of argument that Dr. Rajan was required but failed to obtain informed consent to introduce a substance into the decedent’s body during surgery. There is no evidence that this unit of blood was tainted. As such, appellant has failed to show that this particular breach of duty caused the specified harm.
. A panel of this court has acknowledged "a degree of artificiality in creating a distinction which limits the touching required for actionable informed consent to be the surgical cut..... However, it appears that until such time as our supreme court expands the technical assault definition, such artificiality must hold sway.” Stover v. Association of Thoracic & Cardiovascular Surgeons, 431 Pa.Super. 11, 26 n. 6, 635 A.2d 1047, 1054 n. 6 (1993).