Opinion
No. 2325 Philadelphia 1998.
December 21, 1999.
Appeal from the Order Dated June 29, 1998, Docketed July 2, 1998, in the Court of Common Pleas of Philadelphia County, Civil Division, No. NOVEMBER TERM, 1994 1211.
OPINION
¶ 1 This is an appeal from the order of June 29, 1998, dismissing appellant's claim against appellee Jay Morros, M.D. (Morros). Previously, an interlocutory order was entered on June 10, 1998, dismissing appellant's claim against Albert Einstein Medical Center (AEMC). For the reasons that follow, we affirm the dismissal of appellant's claims as to both Morros and AEMC.
A Substitution of Personal Representative was filed on June 16, 1998, removing Ruben Valles as a party to the instant case, and Esmelinda Valles was named the sole administratrix of the Estate.
¶ 2 In this appeal, we are asked to determine two issues: (1) whether a hospital can be held vicariously liable for the failure of its employee/physician to obtain a patient's informed consent; and (2) whether a physician may be liable for his failure to inform a patient of the various methods of performing a surgical procedure. Appellant filed suit alleging lack of informed consent as to two separate procedures performed at AEMC. Appellant first underwent an aortogram. Appellant contends that the employee/physician of AEMC, Steven Allen, M.D. (Allen), failed to inform him of the risk of utilizing contrast dye in the procedure. Appellant later underwent a procedure to insert a long-term catheter, which was performed by Morros. Appellant contends that Morros failed to inform him of the various surgical sites available for placement of the catheter.
In the counter-statement of the question involved filed by AEMC, the procedure is characterized as "a diagnostic radiographic procedure." (AEMC brief at 1.) AEMC argues in its brief that the aortogram is not a surgical procedure, and thus the doctrine of informed consent is inapplicable. However, a review of the record reveals that this contention was not addressed by the trial court in either filed opinion, and was not the basis for granting summary judgment for either appellee. In addition, it is not included in the statement of questions involved on appeal or in the counter-statement filed by either appellee. Therefore, we will not address this argument on appeal.
¶ 3 The facts underlying this case, viewed in the light most favorable to appellant, are as follows. The decedent, Lope Valles (Valles), aged 69, was admitted to AEMC on November 14, 1992, complaining of pain in his right third and fourth toes. (R.R. 62a-64a.) As Valles had a history of non-insulin dependent diabetes mellitus, it was suspected that Valles suffered from an aortic aneurysm, which was confirmed by ultrasound on November 16, 1992. (R.R. 32a, 69a.) An aortogram, utilizing a contrast dye, was scheduled to study the location of the aneurysm prior to surgery. (R.R. 293a-294a.) In preparation for the performance of the aortogram, Muriel Gordon, M.D., a radiology resident and employee of AEMC, obtained the written consent of Valles to undergo the procedure. (R.R. 293a, 299a.)
Although the decedent signed a written consent form, this does not end the inquiry. It remains an issue whether his consent was "informed." See Gray v. Grunnagle, 423 Pa. 144, ___, 223 A.2d 663, 669 (1966), for a discussion of the definition of "consent".
¶ 4 Allen, also an employee of AEMC, performed the aortogram on November 19, 1992. (R.R. 292a-294a, 353a.) This study confirmed the presence and location of the aneurysm, and surgery was scheduled for Valles. It was then discovered that the use of the contrast dye material during the aortogram caused a disruption in the kidney function of Valles. (R.R. 179a-181a, 275a-276a, 306a.) Surgery to repair the aortic aneurysm was postponed, and Valles was discharged from AEMC on November 24, 1992. (R.R. 32a.)
There is no dispute on appeal that Allen was acting within the course and scope of his employment during the events stated above.
¶ 5 On December 8, 1992, Valles was re-admitted to AEMC, suffering from acute renal failure. (R.R. 174a, 176a-177a.) Valles was placed on dialysis, and his condition stabilized sufficiently that he underwent surgery to repair the aneurysm on December 17, 1992. (R.R. 33a, 276a.)
¶ 6 Due to the necessity for Valles to continue undergoing kidney dialysis, a decision was made to insert a longer-term catheter, known as a "Permacath," to avoid the risk of infection. (R.R. 177a-178a, 187a, 189a-191a.) Temporary catheters were utilized until this point; however, the risk of infection was greater with a short-term catheter used over an extended period of time. In addition, on several occasions it was necessary to replace short-term catheters that failed. (R.R. 189a-190a.) Therefore, surgery was scheduled for January 7, 1993, to insert the "Permacath."
¶ 7 On January 6, 1993, Alan Wladis, M.D. (Wladis), a surgical resident acting on behalf of Morros, obtained Valles' consent for the surgery. (R.R. 82a-85a, 155a.) At the time the consent was obtained, Wladis did not know in what portion of the body the catheter would be inserted (R.R. 92a); and was not aware that the catheter could be placed in the femoral vein. (R.R. 92a-93a.) However, he did inform Valles of the risks associated with the Permacath placement, including the risks of hemopneumothorax and death. Morros performed the procedure on January 7, 1993, and made the decision to insert the catheter into the right subclavian vein. (R.R. 208a-209a, 301a, 304a.)
The options available to Morros for placement of the catheter included the neck at the left or right jugular; the chest at the left or right subclavian; or the left or right femoral vein in the groin. (R.R. 178a.)
¶ 8 During the procedure, Valles suffered a hemopneumothorax and cardiac arrest. (R.R. 251a-252a, 276a, 303a, 305a.) It is believed the cardiac arrest was caused by a perforation of the subclavian vein, which is a recognized risk of insertion of a catheter in the right subclavian vein. (R.R. 253a.) After resuscitation, Valles remained in a coma and subsequently died on January 16, 1993.
¶ 9 AEMC filed a motion for summary judgment on January 2, 1998, alleging that appellant Esmelinda Valles, Administratrix of the Estate of Lope Valles, Deceased (appellant), failed to present sufficient evidence to support either a medical negligence claim or an informed consent claim. The Honorable Sandra Mazer Moss heard argument on the motion of AEMC on May 20, 1998 and dismissed appellant's case against AEMC. On June 29, 1998 the only remaining defendant, appellee Morros, moved for dismissal prior to the selection of the jury. The Honorable Samuel M. Lehrer granted the motion on the basis that a surgeon has no obligation under the law to advise a patient of the possible alternative surgical sites through which a procedure may be performed, and the associated risks of those sites, in order to obtain the informed consent of the patient. The basis for the trial court's decision was that a physician is only required to explain medical alternatives to the surgery itself, not alternative methods of performing the surgery, which is a decision left to the discretion of the physician.
All other defendants were dismissed from the case prior to the pre-trial conference with the trial judge. Defendants Wladis, Cohen, Silvestri, Silvestri Associates, and Steerman were dismissed voluntarily by Valles on May 14, 1998. Defendant Kramer was dismissed by stipulation of the parties and order of court on May 27, 1998.
At the time of the pre-trial conference on May 5, 1998, appellant informed the court and Morros that she was not pursuing any claim for medical negligence on the part of Morros. The only claim remaining at this time was for the alleged failure of Morros to obtain informed consent prior to the performance of the procedure.
¶ 10 When presented with a challenge to an order granting summary judgment, we view the record in the light most favorable to the non-moving party, resolving all doubts as to the existence of a genuine issue of material fact against the moving party. Ertel v. Patriot-News Co., 544 Pa. 93, ___, 674 A.2d 1038, 1041 (1996).
The moving party has the burden of proving the nonexistence of any genuine issue of material fact. The record must be viewed in the light most favorable to the non-moving party, and all doubts as to the existence of a genuine issue of material fact must be resolved against the moving party.
Salazar v. Allstate Ins. Co., 549 Pa. 658, ___, 702 A.2d 1038, 1040 (1997) (citation omitted).
¶ 11 When an appellate court reviews the grant of a motion for summary judgment, our scope of review is well settled; the trial court will be overturned only if there has been an error of law or clear abuse of discretion. First Wisconsin Trust Co. v. Strausser, 653 A.2d 688, 691 (Pa.Super. 1995) (citations omitted). Concerning questions of law, our scope of review is plenary. Ertel, supra at ___, 674 A.2d at 1041. We are not bound by a trial court's conclusions of law; instead, we may draw our own inferences and reach our own conclusions. Borden, Inc. v. Advent Ink Co., 701 A.2d 255, 258 (Pa.Super. 1997), appeal denied, 555 Pa. 725, 725 A.2d 178 (1998); Butterfield v. Giuntoli, 670 A.2d 646 (Pa.Super. 1995), appeal denied, 546 Pa. 635, 683 A.2d 875 (1996).
¶ 12 We will first consider appellant's second issue on appeal, regarding Morros' alleged failure to disclose the alternative placement sites for the catheter.
¶ 13 A claim under the doctrine of informed consent is based upon the intentional tort of battery. Stover v. Assoc. of Thoracic and Cardiovascular Surgeons, 635 A.2d 1047, 1050 (Pa.Super. 1993). In order to successfully pursue a claim under the doctrine of lack of informed consent, a plaintiff must present expert testimony as to: (1) the nature and magnitude of the undisclosed risk; (2) the existence of any undisclosed alternative methods of treatment; and (3) the nature and magnitude of the risks presented by the undisclosed alternatives. Neal by Neal v. Lu, 530 A.2d 103, 111-112 (Pa.Super. 1987). Without an informed discussion of the risks and alternatives, the fact-finder is unable to determine whether the undisclosed information is material. Id. at 112 n. 7.
¶ 14 Appellant argues that the alternative placement sites for the catheter would have lessened, or eliminated, the risk of the complication developed during the surgical procedure. It is appellant's position that the decedent should have been informed of the existence of an alternative site, namely the femoral vein, which carried little or no risk of death. Presumably, appellants are arguing that it was Valles' decision where to place the catheter, rather than the surgeon's.
¶ 15 Morros argues that he was not required to inform Valles of alternative methods of performing the surgery, because they were not medically viable, and because the doctrine of informed consent does not require a surgeon to discuss alternative methods of performing a procedure. Morros further argues that the expert testimony proffered by appellants is insufficient in that it fails to present the probability of risks inherent in the alternative sites for placement of the catheter.
Morros contends there were no medically viable alternative placement sites due to the medical condition of Valles at the time of the catheter procedure. Purportedly, the left jugular and the left subclavian could not be utilized because Valles recently suffered from a septic thrombophlebitis. In addition, for reasons of mobility, Morros did not believe the left or right femoral vein was a viable alternative, given the length of time the catheter was likely to be in place.
¶ 16 The goal of the doctrine of informed consent is to provide the patient with sufficient information necessary to determine whether to proceed with a surgical procedure. Sinclair v. Block, 534 Pa. 563, 570, 633 A.2d 1137, 1140 (1993). It follows that the intent of the doctrine is not to enable the patient to determine how the surgery should be performed, once the patient consents to the procedure.
¶ 17 In Stover, this court discussed the applicability of the informed consent doctrine to the choice of implants to be surgically inserted into the patient.
Under our view of the doctrine of informed consent, a physician would need to discuss alternate prostheses and their relative merits only when the other prostheses represent medically recognized alternatives. In such happenstance, the patient is entitled to weigh the risks of the alternative treatments. When, however, there are no other medically recognized alternate prostheses, or, for that matter, any other medically recognized alternate treatments, the doctor need only discuss with the patient any risks relative to the sole, viable prostheses.
Stover, 635 A.2d at 1051. We find the reasoning of Stover equally applicable to the instant matter. Instantly, there is evidence to support Morros' decision that the site chosen for the Permacath was in his medical judgment the only viable site, and Valles was adequately informed of the risks associated with the insertion of the Permacath.
¶ 18 Although appellant's expert, I. Michael Leitman, M.D., testified in his deposition that a physician must discuss the available alternative sites as to where to place the catheter (deposition transcript, 6/25/98 at 152), Leitman further testified that "if I feel that the site cannot be utilized, then I would not give that patient the option . . . [a]s a physician, I make the decision as to whether or not a site can be utilized because I am doing the surgery." ( Id. at 158.)
¶ 19 We hold that the doctrine of informed consent concerns the provision of sufficient information to a patient to enable him to determine whether or not to consent to a surgical procedure. The informed consent doctrine does not require a physician to provide the patient with the various methods of performing the surgery. Due to the physician's specialized knowledge, it must be the physician who determines the manner of performing the procedure, once the patient has given consent for the procedure itself.
¶ 20 As to appellant's first issue on appeal dealing with Allen's aortogram procedure, no case law in this Commonwealth explicitly addresses whether a hospital can be held vicariously liable for its employee/physician's failure to obtain informed consent. Appellant advocates the adoption of such a rule based solely on the existence of an employee/employer relationship. Appellant argues that Valles should have been informed of the risk of renal failure, particularly where possible alternatives to the use of an aortogram existed which did not carry the risk. There may well be a question as to the adequacy of Valles' consent to the aortogram. The issue presented in this case, however, is whether the hospital, rather than or in addition to Allen, can be held liable. AEMC argues that the duty to obtain the consent rests solely with the physician performing the procedure and not his employer.
Alternatives that existed to the use of an aortogram were an ultrasound, a CAT scan, digital subtraction angiography, or an MRI.
It should be noted that there is no expert report in the record that addresses the issue of informed consent and the conduct of Allen. Such a report should address the alternatives to the aortogram, and the risks of those alternatives. Assuming such a cause of action existed, this report would be necessary to hold AEMC vicariously liable for Allen's failure to obtain the informed consent of Valles. See Festa v. Greenberg, 511 A.2d 1371, 1376 (Pa.Super. 1986).
¶ 21 Although the issue of whether a hospital can be vicariously liable for the failure of its employee/physician to obtain informed consent has never been specifically addressed in Pennsylvania, we can look to this court's decision in Kelly v. Methodist Hospital, 644 A.2d 148 (Pa.Super. 1994), for guidance. In Kelly the court held that an attempt to find corporate negligence on the part of a hospital for failing to ensure that its employees/physicians fully explain the risks of a procedure, was not a viable cause of action in this Commonwealth. Id. at 150. The allegation in Kelly was that the hospital failed to properly monitor the conduct of its employee/ physicians in obtaining informed consent. Id. at 149. This court stated that the plaintiff's allegations amounted to an attempt to assert a negligence-based informed consent claim against the hospital. Id. at 150.
¶ 22 Here, appellant argues she is not attempting to establish the independent negligence of AEMC, but rather its vicarious liability for the intentional action or inaction of its employee. While we might agree that in the traditional employer/employee relationship the employer can be held liable for the intentional acts of its employee, we find that the relationship of hospital/physician employee under the facts of this case does not represent this traditional relationship.
Assuming that the acts are performed in furtherance of the employer's business.
¶ 23 "The traditional definition of a servant is that he is a person employed to perform services in the affairs of another, whose physical conduct in the performance of the service is controlled, or is subject to a right of control, by the other." W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 70, at 501 (5th ed. 1984) (footnote omitted). In determining whether an employee is a servant, several factors may be considered:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.
Restatement of Agency, 2d § 220(2).
¶ 24 It is on this critical issue of control, which is at the heart of the master/servant doctrine, that we believe appellant's argument regarding vicarious liability for lack of informed consent must fail. As set forth above, the doctrine of informed consent applies only to surgeons who perform operations without first securing the informed consent of the patient. In determining whether that consent is informed, the physician must have disclosed to the patient all the facts, risks, and alternatives which a reasonable person would deem significant in deciding whether to undergo surgery. As set forth in Kelly, this information is uniquely within the expertise of the physician, not the hospital:
Beyond our conclusion Pennsylvania law does not recognize the cause of action asserted by appellants, we find compelling reasons for not imposing upon hospitals the duty of obtaining informed consent. It is the surgeon and not the hospital who has the education, training and experience necessary to advise each patient of risks associated with the proposed surgery. Likewise, by virtue of his relationship with the patient, the physician is in the best position to know the patient's medical history and to evaluate and explain the risks of a particular operation in light of the particular medical history. Appellants' attempt to impose upon a hospital the duty not only to `ensure' that physicians obtain informed consent but also to draft the `substantive information to be disclosed', ignores these unique aspects of the physician-patient relationship. Moreover, we are unable to conceive of how a hospital could draft, in laundry-list fashion, `the substantive information to be disclosed' for each surgery as it relates to each patient. Thus, the approach suggested by appellants would prove not only improvident but unworkable as well.
Kelly, 644 A.2d at 151.
¶ 25 Additionally, professionals such as physicians and surgeons have distinct ethical obligations to exercise independent judgment in the best interests of any patient who comes into their care. Therefore, the physician cannot be subject to the control or supervision of the hospital when exercising such independent judgment. See generally, Quilico v. Kaplan, 749 F.2d 480 (7th Cir. 1984). To impute liability to the hospital solely on the basis of what the employee/physician disclosed to the patient prior to surgery would inject the hospital into the physician/patient relationship, and would require a hospital to second-guess the judgment of the physician.
¶ 26 Absent evidence of direct control and supervision of the physician by the hospital with respect to medical judgments, we find that the relationship between a physician and his employer/hospital lacks the necessary element of control, based upon the specialized nature of the occupation, sufficient to establish the vicarious liability of the hospital for the physician's failure to obtain a patient's informed consent.
¶ 27 In addition, in these circumstances an injured party is not left wholly without a remedy, since a cause of action exists against the physician who purportedly fails to obtain the patient's informed consent. Additionally, under a theory of corporate negligence, the hospital may very well be subject to liability for any subsequent negligent harm to the patient.
¶ 28 For the foregoing reasons, we hold that a physician has no duty to disclose to the patient the alternative placement sites for the surgical insertion of a catheter. It is further held that under the facts of this case, a hospital cannot be vicariously liable for the failure of its employees/physicians to obtain the informed consent of a patient.
¶ 29 Affirmed.