- Medical Malpractice Doctrine of Informed Consent: Pennsylvania Court Affirms Theory as a Battery but When is an Expert Required to Prove Causation?
- May 5, 2003
- Law Firm: Marshall, Dennehey, Warner, Coleman & Goggin - King Of Prussia Office
In Montgomery v. Bazaz-Sehgal, 798 A.2d 742 (Pa. 2002), John Montgomery sought treatment at the Greater Pittsburgh Impotence Center with Dr. Bazaz-Sehgal for issues regarding sexual dysfunction. He was diagnosed with Peyronie's disease, characterized by an insufficient blood supply to the penis. After unsuccessful conservative treatment, Dr. Sehgal operated on Mr. Montgomery, performing a revascularization. During surgery, Dr. Sehgal also implanted an inflatable pump prosthesis. Mr. Montgomery claimed that he first learned of the implantation when he awoke from anesthesia and a nurse presented him with a warranty card for the prosthesis.
Mr. Montgomery and his wife brought an action against Dr. Sehgal, the Greater Pittsburgh Impotence Center, and Aliquippa Hospital. Prior to trial, the plaintiffs were precluded from introducing expert testimony on liability because they had missed the deadline to identify an expert and produce a report. The hospital was dismissed from the case at trial without objection.
At trial, the court entered a directed verdict in favor of Dr. Sehgal and the Impotence Center. The court determined that the plaintiffs needed expert testimony to prove a causal connection between the implantation of the device, to which consent allegedly had not been given, and Mr. Montgomery's claim of mental and emotional injury.
The plaintiffs appealed, and the Pennsylvania Superior Court reversed the lower court, holding that the plaintiffs did not need an expert on causation. On further appeal, the Pennsylvania Supreme Court addressed two issues: (1) whether expert medical testimony was necessary to prove that a surgical procedure, to which the patient did not consent, caused mental or emotional injury; and (2) whether a non-consensual surgery case was distinguishable from an informed consent case because non-consensual surgery constituted a battery, while lack of informed consent sounded in negligence.
On the first issue, both the Superior Court and the Supreme Court agreed that, under the facts of this case, expert testimony on liability and causation was not required because a lay jury could readily understand the connection between an unwanted implantation of a penile prosthesis and the emotional injuries for which the plaintiffs sought recovery.
The court stated specifically:
Mr. Montgomery's protestations to the presence of the prosthesis do not require an expert for him to say that it is cumbersome and he never expected it to be there. I don't think that would require an expert . . . . Expert medical testimony is necessary to establish the causal nexus of the injury to the tortious conduct in those cases where the connection is not obvious. Clearly, as to the things of which [the plaintiffs] complained, the connection is obvious.
Montgomery, 798 A.2d at 746.
The second issue involved the nature of a claim for lack of informed consent as an action in battery rather than in negligence. The Supreme Court cited Duttry v. Patterson, 565 Pa. 130, 771 A.2d 1255 (2001), for the proposition that, "A claim that a physician failed to obtain the patient's informed consent sounds in battery." Id. at 748. The court did not explain any distinction between "non-consensual surgery" and "lack of informed consent."
The court addressed whether the Superior Court had been in error in distinguishing between informed consent cases and non-consensual surgery cases as constituting negligence or a battery. The court specifically stated, "In this appeal, this Court reaffirms that the doctrine of informed consent, whether involving non-consensual surgery or a lack of informed consent, sounds in battery, not in negligence, despite observations to the contrary in the published Superior Court opinion below." Id. at 744.
In a concurring opinion, Justice Saylor joined the majority in affirming the order of the Superior Court, but stated that he "would not utilize the appeal as a vehicle to reinforce the battery approach to lack of informed consent." He argued that most jurisdictions treat lack of informed consent as sounding in negligence. He argued further that the Supreme Court had not yet had an opportunity to consider recent legislative modifications to the informed consent statute which, according to Justice Saylor, appear on their face to incorporate central concepts of negligence theory. Justice Saylor specifically referred to the recently enacted Medical Care Availability and Reduction of Error (MCARE) Act, 40 P.S. §1303.101 et seq.
The Superior Court opinion in Montgomery intertwined both negligence and battery theories within a claim for lack of informed consent. The court attempted to distinguish between a medical malpractice informed consent case "grounded in negligence" and one "based on battery." Montgomery, 742 A.2d 1125, 1130 (Pa. Super. 1999). In no uncertain terms, the Supreme Court clarified any potential confusion raised by the language in the Superior Court opinion. The court stated:
[T]his Court has made clear on repeated occasions over a period of several decades that a claim based upon a lack of informed consent involves a battery committed upon a patient by a physician, an action which is distinct from a claim of consented-to, but negligently performed, medical treatment. Since surgery performed without a patient's informed consent constitutes a technical battery, negligence principles generally do not apply. It follows, of course, that a claim involving a surgical procedure performed without any consent at all by the patient, such as the implantation in the case sub judice, also sounds in battery, and negligence requirements have no bearing on the matter.
Montgomery, 798 A.2d at 748-749.
The court also pointed out that a lack of informed consent claim is actionable even if the subject surgery was properly performed. As to Mr. Montgomery, even if the prosthesis were implanted correctly and functioned properly, he may still have a claim for lack of informed consent based upon his allegations that Dr. Sehgal did not obtain his permission before surgery to implant the device.
The Montgomery case is instructive in two respects. It calls for caution as to the facts of any informed consent case regarding the necessity for expert testimony, and it alerts defense counsel to be ready to challenge a plaintiff's lack of an expert. Additionally, regardless of the trend in other jurisdictions on informed consent cases, this theory remains a battery in Pennsylvania. Surgical consent forms are helpful defense tools, but are merely evidence of a patient's consent and are often challenged. A more effective tool is a physician's detailed documentation in his or her records of the informed consent discussion and is essential to the defense of any claim for lack of informed consent.