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Three-Judge Panel RulesIn Breast Implant LitigationPlaintiffs who sue breast implant doctors for lack of informed consent may recover not only for damages from undisclosed risks, but also for damages flowing from all risks, the panel handling silicone implant litigation has said in a case of first impression. Allegheny County Common Pleas Judge R. Stanton Wettick Jr. wrote the decision in In re: Silicone Breast Implant Litigation as chairman of the state’s coordinating court for silicone implant litigation. Philadelphia Common Pleas Judge Victor J. DiNubile Jr. and York County Common Pleas Judge Emanuel A. Cassimatis joined Wettick’s decision. The court agreed with the plaintiffs, who argued that once one has suffered an injury from an undisclosed risk of a medical procedure, he or she is entitled to recover for all of the injuries sustained in the procedure. The defendants argued for a more restrictive view of recovery. General principles of law supported the plaintiffs’ argument for wide-open recovery, Wettick reasoned. The theory of informed consent states that without proper consent from the patient, a surgical operation is a battery. Such a theory presumes that if informed consent is flawed because of an unwarned-of material risk, the surgery should not have taken place. Therefore, the plaintiffs argued, any harm — warned of or not — is damage stemming from the battery. What is crucial is the jury’s conclusion that the undisclosed risk would be considered significant in deciding whether to have the operation; that is, whether the non-disclosure related to a “material fact.” “If a jury finds that the injury is a material undisclosed risk of the procedure, the patient is deemed to have not consented to the procedure because of the undisclosed potential risk,” Wettick wrote. “The patient is treated in the same fashion as if there were a jury finding that a reasonably prudent patient would not have proceeded with the operation had the patient known that the risks of the operation included the undisclosed injuries the patient sustained.” There is nothing inconsistent, Wettick said, with the court’s ruling on disclosed risks and a September decision by the same panel barring a lack of informed consent claim unless there was an injury connected to the undisclosed risk. In the September opinion, the plaintiff was not entitled to damages because she had agreed to surgery that could potentially produce the injuries that she sustained, Wettick reasoned. In this case, on the other hand, the plaintiff did suffer injury from an undisclosed risk, and she was entitled to be placed in the position she would be in had she rejected the operation on the basis of the material fact that was not disclosed. The court therefore denied the defendant’s motion in limine seeking to limit evidence related to plaintiffs’ damages to damages related to only undisclosed risks. The court also denied the defendant’s motion in limine seeking to exclude a patient whose implants have not been removed from seeking damages related to the removal of the implants. The court agreed with the plaintiffs that recovery for removal of the implants in the future is permitted in some circumstances. ( Copies of the nine-page opinion in In re: Silicone Breast Implant Litigation, PICS No. 04-0332, are available from The Legal Intelligencer . Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.)

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