Expert Not Needed to Show Mental Damages

Expert medical testimony was not necessary to prove emotional damages resulting from the implantation of an unwanted penile prosthesis, the Pennsylvania Supreme Court has ruled. The high court in Montgomery v. Bazaz-Sehgal said the average jury could comprehend whether emotional injuries might result from the unwanted prosthesis without the aid of expert testimony. “[Plaintiff] John Montgomery spoke directly to the emotional difference between his pre-existing condition and his condition after implantation of the prosthesis,” Justice Ronald D. Castille wrote. “The jury did not require an expert to explain to it the connection between an unwanted implantation of a penile prosthesis and the emotional injuries for which appellees sought recovery.” “That John Montgomery might suffer these types of injuries is a direct and readily foreseeable consequence of the unwanted procedure.” The high court also reaffirmed that the doctrine of informed consent — whether it involves a non-consensual surgery or pure lack of informed consent — sounds solely in battery. “Since surgery performed without a patient’s informed consent constitutes a technical battery, negligence principles generally do not apply,” Castille wrote. “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 saw Dr. Kuldeep Sehgal after Montgomery began suffering from premature ejaculation and partial loss of erection. Sehgal tried to treat the problem with several injections, but he ultimately determined surgery was necessary, according to court records. The surgery, which was to be on an outpatient basis, was to clear out a plaque blockage inside Montgomery’s penis. When Montgomery woke up from the surgery, a nurse gave him a warranty card for a prosthesis, court documents state. When Montgomery questioned Sehgal about the implant, the doctor said he was saving Montgomery from a second surgery. Montgomery asked to have the prosthesis removed, but the doctor said there was “nothing there now,” according to court records. Montgomery’s wife testified that after the surgery, her husband was in a “state of shock.” Montgomery testified about the mental effect of the implant: “I sure as hell don’t feel like a man, I’ll tell you that. I don’t feel one bit like a man. I mean, I felt like half a man before because I had ejaculated early but I don’t feel like no man, even half a man anymore because I go [sic] to pump this thing up. Like I told my wife, I feel like I am a machine.” The couple filed suit alleging professional negligence, lack of informed consent and battery. Montgomery failed to name any liability expert witnesses by the date the trial court established. The defendants, Sehgal and Greater Pittsburgh Impotence Center, filed a motion for partial summary judgment, arguing that Montgomery couldn’t prove his professional negligence case without expert testimony. The trial court granted the motion, and the matter went to trial on the lack of informed consent and battery claims. After the close of Montgomery’s case, the defendants moved for a non-suit, which the trial court denied. At the close of evidence, however, the court granted a defense motion for a directed verdict, concluding “it could not determine the dividing line between which damages would require medical testimony and which would not.” On appeal, former Superior Court senior judge, the late Vincent A. Cirillo, said at the heart of the case was “the differences between a medical malpractice informed consent case grounded in negligence … and one based on battery.” Montgomery’s claim was one for battery grounded on the lack of consent to perform the procedure itself. The main issue in the case was whether the implantation of the prosthetic device constituted an “unpermitted, intentional contact.” Cirillo said there was credible evidence that Sehgal implanted the device without Montgomery’s consent, making the trial court’s directed verdict inappropriate. The Pennsylvania Supreme Court granted review of the case to consider whether expert testimony was needed to prove Montgomery’s emotional injury. Secondly, the high court took the opportunity to decide whether the Superior Court was correct to rule that non-consensual surgery cases were distinguishable from lack of informed consent cases, in that non-consensual cases sounded in battery and lack of informed consent sounded in negligence. The high court first delved into defining the claim. Castille said the state high court has made it clear that battery is the standard for cases where there is a lack of informed consent. The court said the principles of negligence do not come into play. “Indeed, a claim concerning the lack of consent for surgery can be maintained even where there is no allegation of negligence in the actual performance of the procedure,” Castille wrote. “While negligence claims and informed consent claims often co-exist in the same tort action, they need not do so. A lack of informed consent or a lack of consent claim is actionable even if the subject surgery was properly performed and the overall result is beneficial.” Castille said there is no distinction between cases where there is a non-consensual procedure and cases where there is simply a lack of informed consent. “Lack of consent for surgery involves the same general concept without regard to whether consent was uninformed or completely lacking,” the court wrote. “The result is the same — the patient is subjected to a surgical procedure to which he did not consent.” But, the Superior Court’s error in analysis did not affect its ultimate decision, Castille said. Turning to the issue of expert testimony, the high court said the Superior Court made the right decision with regard to its ruling on the necessity of expert medical testimony. Castille said the intermediate appellate court correctly made a distinction between damages stemming from physical consequences of the implant and the emotional impact of the implant. “There is no question that appellees’ testimony concerned both physical and emotional damages and was often overlapping,” Castille wrote. “Thus, John Montgomery spoke of diminished sensation in his penis during intercourse, the fact that he could not achieve an erection without pumping up the device and that he experienced pain and discomfort ‘like sitting on a pin cushion’ emanating from the device itself.” “But there was also ample evidence of anguish and harm arising from the very fact of the presence of the unwanted device,” the court wrote. “John Montgomery testified that the prosthesis was cumbersome and embarrassing, and made him feel like a machine because he had to pump the prosthesis in order to achieve an erection.” The high court said expert medical testimony was definitely required to prove any physical injuries to Montgomery. The alleged emotional injuries, however, were “clearly connected to the prosthesis.” “As the Superior Court so aptly noted, laypersons are certainly capable of comprehending, without the assistance of an expert, appellees’ mental and emotional damages and determining whether those difficulties were occasioned by the unwanted and unexpected implantation of a penile prosthesis,” Castille wrote. The high court’s decision, therefore, affirms the Superior Court’s opinion vacating the trial court’s directed verdict. The high court noted that Justices Russell M. Nigro and Sandra Schultz Newman and former Chief Justice John P. Flaherty did not participate in the consideration of the decision. Justice Thomas Saylor filed a separate concurring opinion. Saylor said he agreed with Castille’s reasoning, but wrote separately because he did not believe this was the appropriate case to “reinforce the battery approach to lack of informed consent.” Saylor also pointed out that the court has yet to consider the “recent legislative modifications to the informed consent statute,” (speaking of the newly enacted Medical Care Availability and Reduction of Error Act) which “on their face, appear to incorporate central concepts of negligence theory.” Mars attorney Peter J. Pietrandrea represented Montgomery. Pittsburgh attorneys Templeton Smith and Linton L. Moyer defended the case.