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The Superior Court’s recent decision to permit evidence of a surgeon’s qualifications and experience in an informed-consent case was in error and should be reversed, according to the lawyers for a medical malpractice defendant. The Pennsylvania Supreme Court on June 12 agreed to review the issue of first impression raised by the Superior Court’s decision in Duttry v. Patterson, in which the plaintiff claimed a surgeon did not provide sufficient information when she asked him about his experience. “Given this court’s historical reluctance to expand the informed consent doctrine beyond its traditional roots, the Superior Court’s decision to permit evidence of negligence in an informed consent case warrants discretionary review by this tribunal,” Linda Porr Sweeney of Porr & Associates in Lancaster, Pa., wrote in the brief accompanying the allocatur petition. At the heart of the Superior Court’s decision was the distinction between “nondisclosure” and “misrepresentation” by the doctor. “A surgeon who, when answering a patient’s inquiries, misinforms the patient about this information and misleads the patient into believing that the hands of an experienced surgeon will be performing the operation, does not have the true consent of that patient,” Judge Joseph A. Del Sole, joined by Judge Correale F. Stevens, wrote in the Duttry decision. The allocatur petition claims this is a distinction without a difference. “The majority’s decision is inconsistent with [prior cases] because whether the information about a surgeon’s personal characteristics is the product of nondisclosure or misrepresentation does not change the nature of the information itself,” the petition states. “A surgeon’s personal characteristics are only tangential to a surgical procedure, and cannot form the basis for an informed consent case.” BACKGROUND Cloma Duttry was under the care of Dr. Lewis T. Patterson and Patterson Surgical Associates when she underwent surgery for esophageal cancer. A leak then occurred along the surgical site, which developed into a rupture requiring emergency surgery. Duttry and her husband, Alvin, claimed that as a result of the leak and rupture, she developed Adult Respiratory Disease Syndrome, causing permanent damage to her lungs and rendering her unable to work. They sued Patterson for lack of informed consent and negligence, and they sued Patterson Surgical Associates on the basis of respondeat superior. A jury returned a verdict in favor of both defendants. On appeal, the plaintiffs claimed the trial court erred in refusing to permit them to offer documentary and testimonial evidence relating to the actual number of esophageal surgeries performed by Patterson before he operated on Duttry. Duttry said she intended to testify that she questioned Patterson about his experience and he advised her that he had performed the procedure on an average of once a month. The plaintiffs alleged that the doctor actually performed it only five times in the preceding five years. The trial court ruled the information was irrelevant to the doctrine of informed consent, but the Superior Court disagreed. Noting that “the courts of this commonwealth have not considered this exact question,” the judge turned to a similar case decided in the Supreme Court of Wisconsin, Johnson v. Kikemoor, in which that court ruled a reasonable person would consider information regarding a doctor’s lack of experience in performing a particular procedure material in making an intelligent decision about the surgery. “We too conclude that individuals who question their surgeons prior to surgery about their competence, experience and expertise are seeking information that is highly relevant to them in making an informed decision about their surgeon,” the Pennsylvania appeals court said. “We are not implying that surgeons must inform all their patients about their educational background and experience, but where such information is sought, the patient deems it very relevant, and truthful answers must be given in order to obtain valid consent,” wrote Del Sole. In a dissent, Judge Vincent Cirillo said the majority’s holding carved out an exception to the informed consent doctrine “that effectively redefines a ‘reasonable patient’ and, as a result, dilutes the jury’s function by virtue of the verdict being vacated on such evidentiary grounds.” Where such excluded information does not concern the risks, complications and alternatives to surgery, it is not a factor in the determination of whether a patient has given his or her informed consent for a surgical procedure, the judge said. “A physician’s personal experience with regard to having performed a certain operative procedure is certainly an important decision,” Cirillo wrote. “However, such a consideration is not ‘germane to surgical or operative treatment,’ and therefore is not properly classified as a basis for an ‘informed consent’ case. … Rather, such claim is more properly rooted in a negligence or intentional misrepresentation action.” ALLOCATUR BRIEF Sweeney said in the allocatur brief that the Duttry decision should be reversed because it “significantly broadens Pennsylvania’s established ‘informed consent’ doctrine.” “The duty of a surgeon is to communicate to the patient 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,” the brief states. “The doctrine has never — before now — been interpreted to apply to information concerning the qualifications and experience of the surgeon performing the procedure.” Citing the 1991 Superior Court case of Kaskie v. Wright, the petition states that the Duttry decision also violates the intermediate appeals court’s traditional reluctance to expand the informed consent doctrine. “The court [in Kaskie] declined to ‘expand the informed consent doctrine to include matters not specifically germane to surgical or operative treatment,” the petition claims. “To do so, where the absent information consists of facts personal to the treating physician, extends the doctrine into realms well beyond its original boundaries,” the Kaskie court said. The petitioners claim the Superior Court’s latest decision does just that. The Duttrys also claim the Superior Court’s decision raises public policy considerations, saying it will have a significant impact on the medical community. “Although the majority maintains that its decision will not require surgeons to inform patients about their education background and experience unless the patient seeks the information … the court has provided no clear guidance for practicing physicians,” Sweeney wrote. “In the wake of the Superior Court’s opinion, the ‘rules of the road’ concerning informed consent have been changed, but the Superior Court has not explained what the new rules will be.”

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