Opinion
J-A05017-14 No. 1279 EDA 2013 No. 1442 EDA 2013
03-27-2014
KENNETH B. PAGANI AND DEBRA H. PAGANI, Appellants v. CARL B. WEISS, JR., M.D. and CHS PROFESSIONAL PRACTICE, P.C., Appellees
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
Appeal From The Order Entered April 8, 2013
In The Court of Common Pleas of Northampton County Civil Division
At No. C-48-CV-2009-5237
BEFORE: ALLEN, JENKINS, and FITZGERALD, JJ. MEMORANDUM BY JENKINS, J.:
Former Justice specially assigned to the Superior Court.
Appellants Kenneth Pagani and Debra Pagani ("the Paganis") allege that appellees, Carl Weiss, Jr., M.D. ("Dr. Weiss") and CHS Professional Practice P.C. ("CHS"), failed to obtain informed consent from Mr. Pagani prior to his hip surgery. A jury returned a verdict in favor of Dr. Weiss and CHS.
The Paganis contend in this appeal that the jury instructions relating to informed consent and the verdict slip were erroneous. Concluding that the jury instructions were appropriate, we affirm.
Several procedural matters deserve brief mention. The Paganis filed post-trial motions which the trial court denied in an order and opinion docketed on April 8, 2013. On April 17, 2013, Dr. Weiss and CHS filed a praecipe for entry of judgment in their favor. On May 1, 2013, the Paganis filed a notice of appeal which stated that their appeal was from the order denying post-trial motions. Technically, the notice of appeal should have stated that the Paganis were appealing the judgment entered on April 17th, not the order denying post-trial motions. This defect is insignificant, because the Rules of Appellate Procedure no longer require the notice of appeal to state that judgment has been entered on the verdict. Note, Pa.R.A.P. 904 ("the 1986 amendment [to Rule 904] deletes the requirement that the appellant certify that the order has been reduced to judgment"). The Paganis filed a timely concise statement of matters complained of on appeal. On June 6, 2013, the trial court entered a statement under Pa.R.A.P. 1925(a) that its April 8, 2013 opinion provided all of the reasons for its decision, and that no further opinion was necessary. This Court docketed the Paganis' appeal at 1279 EDA 2013. Dr. Weiss and CHS filed a cross-appeal at 1442 EDA 2013 in which they advanced three additional reasons for entering judgment in their favor. This Court consolidated these appeals for review. We doubt that Dr. Weiss and CHS have standing to file a cross-appeal, because they won the judgment in the trial court. They simply could have included these arguments in their brief at 1279 EDA 2013 as alternative reasons for affirming the judgment in their favor. As our Supreme Court recently explained:
Pennsylvania Rule of Appellate Procedure 501 permits any 'aggrieved party' to file an appeal. Pennsylvania case law also recognizes that a party adversely affected by earlier rulings in a case is not required to file a protective cross-appeal if that same party ultimately wins a judgment in its favor; the winner is not an 'aggrieved party.'Basile v. H & R Block, Inc., 601 Pa. 392, 973 A.2d 417, 421 (2009); see also Hospital & Healthsystem Ass'n of Pa. v. Dept. of Public Welfare, 585 Pa. 106, 888 A.2d 601 (2005) (DPW was not an aggrieved party; as prevailing party, it did not need to file cross-appeal); Wilson v. Transp. Ins. Co., 889 A.2d 563, 577 n. 4 (Pa.Super.2005) ("As the prevailing party, [Appellee] was not 'aggrieved' and therefore, did not have standing to appeal the judgment entered in its favor"); Ratti v. Wheeling Pittsburgh Steel Corp., 758 A.2d 695, 700 (Pa.Super.2000) ("since Appellant was a prevailing party in the court below, it is not 'aggrieved' within the meaning of [Rule 501]"); Note, Pa.R.A.P. 511 ("an appellee should not be required to file a cross appeal because the Court below ruled against it on an issue, as long as the judgment granted Appellee the relief it sought"). In any event, we affirm the judgment because the arguments raised in the Paganis' appeal are devoid of merit. We dismiss the appeal of Dr. Weiss and CHS at 1442 EDA 2013 as moot.
On January 22, 2008, Dr. Weiss performed total left hip replacement surgery on Mr. Pagani. The Paganis subsequently filed a civil action against Dr. Weiss and CHS alleging that the surgery caused Mr. Pagani nerve damage and pain and left him disabled. The Paganis sought damages under MCARE's informed consent statute, 40 P.S. § 1303.504, on the ground that the defendants failed to advise Mr. Pagani of the risks and alternatives to hip replacement surgery. The Paganis' complaint did not include a claim of negligen ce.
The Medical Care Availability and Reduction of Error (MCARE) Act, 40 P.S. § 1303.101, et seq.
At the close of discovery, Dr. Weiss and CHS filed a motion for summary judgment. The trial court, per the Honorable Leonard N. Zito, granted summary judgment in part and denied it in part. Judge Zito granted summary judgment "with respect to the [Paganis'] claim that [Dr. Weiss and CHS] breached the doctrine of informed consent by failing to identify the potential risks and complications of the left total hip arthroplasty prior to surgery." Order dated August 18, 2011. Mr. Pagani admitted that he signed a consent form and received a patient handbook prior to surgery. Opinion dated August 18, 2011, p. 17. These documents were "comprehensive and comprehensible" and provided ample information about the risks of hip replacement surgery. Id., p. 18. Although Mr. Pagani denied reading these documents, "faced with a major surgery. . .it was incumbent upon [him] to read and review all documents provided to him regarding its potential risks and complications." Id.
Conversely, Judge Zito held that a genuine issue of material fact existed as to whether Dr. Weiss and CHS advised Mr. Pagani of potentially viable non-surgical alternatives, such as activity modification, the use of Ultracet, a non-steroidal anti-inflammatory medication, or Vicodin, a narcotic painkiller. Id., p. 19. Moreover, Judge Zito wrote, "we agree with the [Paganis'] assertion that an accurate diagnosis of a patient's condition is a sine qua non to a proper discussion of non-surgical alternatives." Id., p. 20.
Prior to trial, the case was reassigned to the Honorable Craig Dally. Dr. Weiss and CHS filed a motion in limine to preclude the Paganis from presenting evidence or argument that Dr. Weiss failed to properly diagnose Mr. Pagani's hip condition. Judge Dally denied this motion on the ground that "pursuant to the doctrine of coordinate jurisdiction. . .Judge Zito's ruling with respect to the necessity of an accurate diagnosis as a precursor to informed consent is the law of the case." Opinion Relating to Motions In Limine, pp. 20-21. During trial, the Paganis' expert testified that Dr. Weiss failed to properly diagnose Mr. Pagani's condition. Counsel for the Paganis emphasized this point in his closing argument.
At the conclusion of the Paganis' evidence, Judge Dally and counsel held a conference on the jury charge. Counsel for the Paganis requested that the court instruct the jury that it should find against Dr. Weiss on the issue of informed consent if it determined that Dr. Weiss failed to give Mr. Pagani an accurate diagnosis of his condition. The Paganis' counsel proposed the following instruction:
To obtain a patient's informed consent, doctors must provide patients with material information necessary to determine whether to proceed with the surgical or operative procedure, or to remain in the present condition; this information must give the patient a true understanding of the nature of the operation to be performed, the seriousness of it, the organs of the body involved, the disease or incapacity sought to be cured, and the possible results. Valles v. Albert Einstein Medical Center, [569 Pa. 542, 805 A.2d 1232 (2002)]. Plaintiff, Kenneth Pagani, claims that Dr. Weiss did not give him a true and accurate understanding of the condition of his left hip prior to surgery. If you find that Dr. Weiss did not give Mr. Pagani a true understanding of the condition of his left hip prior to performing the left hip replacement procedure, then you must find that Dr. Weiss did not obtain [Mr. Pagani's] informed consent for the procedure and that Dr. Weiss is liable for any injuries caused by that procedure, regardless of whether the procedure was properly and carefully performed.Plaintiffs' Proposed Point For Charge, No. 5. Judge Dally denied this proposed instruction, N.T., 11/29/12, p. 2, and instructed the jury as follows:
On the issue of informed consent, plaintiffs' allegations of Dr. Weiss' failure to obtain Mr. Pagani's informed consent to hip replacement is based on his failure to inform Mr. Pagani of the alternatives to the chosen surgery. The patient's consent must also be informed.Id., pp. 18-19.
A patient cannot make an informed consent unless the physician provides the risks and alternatives to a procedure that a reasonably prudent patient would need to know to make an informed decision as to whether or not to undergo a procedure. This is called informed consent.
A patient must be given a description of the proposed medical treatment or procedure or treatment and have been informed about the risks of the procedure or treatment. The patient must also be informed of the alternatives a reasonable person would consider important to know in order to make an informed decision about whether or not to undergo the procedure, treatment or operation.
The patient is not required to prove that he or she would have made a different choice had the information been disclosed. The patient must only prove that the information not given to him or her would have been a substantial factor in his or her decision to consent to the procedure or treatment.
In this case, there's no dispute as to whether the patient was informed as to the risks of the surgery. As a result, you must assume that he was made aware of these risks. However, there is a dispute as to whether Dr. Weiss or someone from his office informed Mr. Pagani of the alternatives to the surgery.
Therefore, you must decide whether Dr. Weiss, either himself or through someone in his office, made Mr. Pagani aware of the alternatives that a reasonable person would
consider important to making an informed decision as to whether or not to undergo the surgery.
The plaintiffs have not asserted a claim that Dr. Weiss was negligent in his care and treatment of Mr. Pagani; therefore, you are not permitted to find liability against Dr. Weiss in regard to whether his recommendation to proceed to surgery was appropriate or in regard to whether he appropriately performed the surgery.
The Paganis also requested that the verdict slip include the following question as to liability:
Do you find that [Dr. Weiss and CHS] failed to provide [Mr.] Pagani with an accurate diagnosis of the condition of his left hip prior to the surgery performed by Dr. Weiss on January 22, 2008?Id., p. 2. Judge Dally denied the Paganis' request and placed the following question on the verdict slip:
Do you find that [Dr. Weiss] or someone from his office failed to provide [Mr.] Pagani with the alternatives to the left hip replacement surgery performed by Dr. Weiss on January 22, 2008 that a reasonably prudent patient would require to make an informed consent to whether to undergo this procedure, rendering [Dr. Weiss and CHS] liable to Mr. Pagani?Verdict Slip, question 1.
The jury returned a verdict for Dr. Weiss and CHS. In its opinion denying the Paganis' post-trial motions, Judge Dally explained, inter alia, that he did not use the Paganis' proposed instruction and verdict slip because
the only liability issues before the jury under the [informed consent] statute were whether or not Mr. Pagani had been provided with the alternatives to hip surgery, and if so, whether that undisclosed information would have been a substantial factor in his decision regarding whether or not to undergo the surgery, and the jury instructions and verdict slip were modeled accordingly.Opinion Denying Post-Trial Motions, pp. 7-8.
The Paganis raise two issues in this appeal:
1. Did the lower court commit an error of law by omitting [the Paganis'] Proposed Point for Charge No. 5 [the proposed instruction on informed consent], thereby rendering the jury charge inadequate and requiring a new trial?
2. Did the lower court commit an error of law by omitting [the Paganis'] Proposed Question No. 1 in the verdict slip [the proposed question on informed consent], thereby requiring a new trial?
The Paganis' first issue involves a challenge to the jury instructions. Our standard of review in examining jury instructions
is limited to determining whether the trial court committed a clear abuse of discretion or error of law controlling the outcome of the case. Quinby v. Plumsteadville Family Practice, Inc., 589 Pa. 183, 907 A.2d 1061, 1069 (2006). Because this is a question of law, this Court's review is plenary. Id. at 1070. In reviewing a challenge to a jury instruction, the entire charge is considered, as opposed to merely discrete portions thereof. Commonwealth v. Eichinger, 591 Pa. 1, 915 A.2d 1122, 1138 (2007). Trial courts are given latitude and discretion in phrasing instructions and are free to use their own expressions so long as the law is clearly and accurately presented to the jury. Id.Cooper ex rel. Cooper v. Lankenau Hosp. , 616 Pa. 550, 51 A.3d 183, 187 (2012). Error in a charge is a sufficient ground for a new trial if the charge as a whole is inadequate or not clear or has a tendency to mislead or confuse rather than clarify a material issue. Stewart v. Motts, 539 Pa. 596, 654 A.2d 535, 540 (1995); see also Price v. Guy, 558 Pa. 42, 735 A.2d 668, 670-71 (1999) ("[E]rror will be found where the jury was probably mislead by what the trial judge charged or where there was an omission in the charge"). A charge will be found adequate unless "the issues are not made clear to the jury or the jury was palpably misled by what the trial judge said or unless there is an omission in the charge which amounts to a fundamental error." Stewart, supra, 654 A.2d at 540 (quoting Voitasefski v. Pittsburgh Rys. Co. , 363 Pa. 220, 69 A.2d 370, 373 (1949)).
We see no error in the instructions that Judge Dally gave the jury relating to informed consent. MCARE's informed consent statute, 40 Pa.C.S. § 1303.504 ("the MCARE statute"), provides in relevant part:
(a) Duty of physicians.--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:Id. (emphasis added). The legislature enacted the MCARE statute in 1996 and amended it once i n 2002, six years before Mr. Pagani's surgery. There is no dispute that the MCARE statute, as amended in 2002, governs this case.
(1) Performing surgery, including the related administration of anesthesia.
(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.
(b) Description of procedure.--Consent is informed if the patient has been given a description of a procedure set forth in subsection (a) and the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure. The physician shall be entitled to present evidence of the description of that procedure and those risks and alternatives that a physician acting in accordance with accepted medical standards of medical practice would provide.
The MCARE statute prescribes that when a physician performs any procedure delineated in section 1303.504(a), the patient must receive a description of the procedure and of the "risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure." 40 P.S. § 1303.504(b). Judge Dally clearly and succinctly defined each of these statutory elements in his instruction on informed consent. In compliance with § 1303.504(b), he instructed the jury that (1) the patient must be given a description of the proposed medical procedure, and (2) the patient must be told about the risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure. N.T., 11/29/12, pp. 18-19. These instructions provided the proper tools for the jury to apply to the evidence; they were not confusing, misleading or unclear.
There is no dispute that Mr. Pagani's hip replacement surgery falls within the scope of § 1303.504(a), or that Dr. Weiss was required under § 1303.504(b) to obtain Mr. Pagani's informed consent to undergo this procedure.
The Paganis argue, in so many words, that a duty of accurate diagnosis existed under the common law of informed consent and carried over to the MCARE statute, thus validating their proposed jury instruction. To elaborate, the Paganis assert the following:
1. Valles, supra, held that in order to obtain informed consent, the physician must "advise the patient of those material facts, risks, complications and alternatives to surgery that a reasonable person in the patient's situation would consider significant in deciding whether to have the operation." Id., 805 A.2d at 1237.
2. The physician cannot give satisfactory advice about possible alternatives to surgery without first providing an accurate diagnosis of the patient's condition.
3. Thus, the common law doctrine of informed consent encompassed a duty of accurate diagnosis.
4. This common law duty carried over to the MCARE statute, where it continues to exist as an implied duty.
The flaw in this argument is simple: the MCARE statute does not define informed consent to include a duty of accurate diagnosis. The statute merely prescribes that the patient must receive a description of the procedure and of the "risks and alternatives that a reasonably prudent patient would require to make an informed decision as to that procedure." 40 P.S. § 1303.504(b). We will not add a "duty of accurate diagnosis" to the statute where the legislature did not articulate one. "This Court is without authority to insert a word into a statutory provision where the legislature has failed to supply it." Key Sav. and Loan Ass'n v. Louis John, Inc. , 379 Pa.Super. 226, 549 A.2d 988, 991 (1988). Cf. Commonwealth v. Scattone, 448 Pa.Super. 533, 672 A.2d 345, 348 n. 5 (1996) (refusing to create a defense to statute prohibiting fleeing or eluding police officer in addition to defenses enacted by legislature; "the Legislature could very easily add to the defenses set forth in subsection (c) of Section 3733(a), a role we will not usurp by judicial fiat") .
Moreover, a duty of accurate diagnosis did not exist under the common law of informed consent, let alone carry over to the statutory law of informed consent in the MCARE statute. At common law, lack of informed consent constituted a battery. Negligence principles had no place in this doctrine. Montgomery v. Bazaz-Sehgal, 568 Pa. 574, 798 A.2d 742, 749 (2002); Pollock v. Feldstein, 917 A.2d 875, 878 (Pa. Super. 2007). And at common law, failure to provide an accurate diagnosis constituted negligence, not battery. Gradel v. Inouye, 491 Pa. 534, 421 A.2d 674 (1980) (reinstating judgment against physician for negligence due to his failure to diagnose bone cancer at point of fractured bone).
Valles, the decision relied upon by the Paganis, did not create a common law duty to provide an accurate diagnosis. Valles defined informed consent in terms virtually identical to the MCARE statute, whose plain language does not require an accurate diagnosis. Isaac v. Jameson Memorial Hosp., 932 A.2d 924, 932 & n. 6 (Pa. Super. 2007) (the MCARE statute "retains the[] same basic requirements for a valid informed consent" as Valles ).
If we approached this case purely on a theoretical plane, we could conceive a strong argument for including a duty of accurate diagnosis as an element of informed consent law. It seems logical that the patient cannot make an informed decision about reasonable alternatives to surgery without first receiving an accurate diagnosis from the physician. But as a matter of legal doctrine, this argument is untenable. Pennsylvania courts, and now our legislature, have consistently demarcated the boundary between informed consent and negligence such that informed consent lives on one side of the fence and the duty of accurate diagnosis lives on the other, in the landscape of negligence law. If we accepted the Paganis' argument, we would blur, if not eliminate, this longstanding distinction, a step we are not permitted to take.
The Paganis also contend that under the doctrine of coordinate jurisdiction, Judge Dally was compelled to submit their proposed instruction to the jury to comply with Judge Zito's statement in his opinion denying summary judgment that "an accurate diagnosis of a patient's condition is a sine qua non to a proper discussion of non-surgical alternatives." We disagree. The coordinate jurisdiction doctrine "prohibits [one] judge from overruling the decision of another judge of the same court, under most circumstances." Ryan v. Berman, 572 Pa. 156, 813 A.2d 792, 794 (2002). This rule has a well-recognized limitation: it does not prohibit a judge in a later stage of the case from revisiting an issue that another judge addressed in an earlier stage. Riccio v. American Republic Ins. Co. , 550 Pa. 254, 705 A.2d 422, 426 (1997) ("the coordinate jurisdiction rule does not apply to bar a substituted judge hearing post-trial motions from correcting a mistake made by the trial judge during the trial process"); Goldey v. Trustees of the Univ. of Pennsylvania, 544 Pa. 150, 675 A.2d 264, 267 (1996) ("where the motions differ in kind, as preliminary objections differ from motions for judgment on the pleadings, which differ from motions for summary judgment, a judge ruling on a later motion is not precluded from granting relief although another judge has denied an earlier motion"). Thus, Judge Zito's comment at the summary judgment stage did not require Judge Dally to accept the Paganis' proposed jury instruction or verdict slip during trial.
For these reasons, Judge Dally correctly refused the Paganis' request to instruct the jury to rule against Dr. Weiss on the informed consent issue if he failed to provide an accurate diagnosis.
Turning to the second issue on appeal, we conclude that Judge Dally properly refused the Paganis' request for the verdict slip to inquire whether Dr. Weiss failed to provide an accurate diagnosis to Mr. Pagani. We base our conclusion on the same reasons that we gave above for affirming Judge Dally's refusal to give the Paganis' proposed jury instruction on informed consent. Put simply, Judge Dally could not have permitted the question on the verdict slip proposed by the Paganis without improperly injecting negligence principles into informed consent's domain.
Judgment at 1279 EDA 2013 affirmed. Appeal at 1442 EDA 2013 dismissed as moot. Judgment Entered. __________
Joseph D. Seletyn, Esq.
Prothonotary