2012 PROFESSIONAL LIABILITY UPDATE - Eckert Seamans

Plaintiff developed chronic diarrhea and other complaints that she claimed were caused by thebowel resection. She filed suit, alleging battery, medical negligence and lack of informedconsent.The case proceeded to trial against only the consultant physician and the jury found in hisfavor. On appeal, Plaintiff argued that the trial court had erred in denying her motion for adirected verdict on her informed consent claim because the physician, as a matter of law hadexceeded the scope of her surgical consent, which was an unauthorized extension of thediagnostic laparoscopy. The Superior Court disagreed and found that, given the language of theconsent Plaintiff had signed and the testimony of the physician at trial regarding what hebelieved might be causing the distorted bowel, it was a jury question whether the surgeon’sactions were within the scope of consent the Plaintiff had provided. Consequently, the trial courthad correctly rejected Plaintiff’s motion for a directed verdict.Plaintiff also argued that the trial court’s charge regarding informed consent constitutederror, but the Superior Court rejected this argument as well.In Schroeder v. Jaquiss, 861 A.2d 885 (Pa. 2004), an informed consent and negligencecase, the Pennsylvania Supreme Court held that the Superior Court had correctly concluded thata decedent’s representative did not waive the Dead Man’s Act by not attending depositions toobject on the basis of this Act. Plaintiffs had filed a complaint alleging medical negligence andfailure to obtain informed consent in connection with surgery to remove a growth in the Plaintiffpatient’sear. One of the Defendant-physicians died shortly after the case was commenced andhis estate raised the Dead Man’s Act in its Answer and New Matter. When discoverydepositions were held, the estate was given notice, but did not attend and did not initiate orengage in any discovery.At trial, the court first ruled that the Act applied to the Plaintiff and the other physician-Defendants and rendered them incompetent witnesses regarding matters that took place beforethe death of the now-deceased Defendant-physician. Upon motion, the court reversed this rulingon the basis that the Act had been waived because the estate had not raised it at the depositionsof the other parties. The jury returned a verdict against the estate in the amount of $1,000,000.On appeal, the Superior Court held that the trial court committed reversible error infinding the Act waived and remanded for a new trial against the estate. The Supreme Courtaffirmed, noting that a decedent’s representative waives the Act by taking depositions orrequiring answers to interrogatories from an adverse party, but that there is no principle in placerequiring the decedent’s representative to appear at depositions of such parties just so he canraise the Act. The Supreme Court further held that the rules of discovery did not otherwiserequire the estate to show up at depositions simply to raise the Act, in order to preserve itsobjection for trial.The Supreme Court also concluded that the Superior Court had correctly found that thetrial court’s error was harmful to the estate and, therefore, reversible error, because its rulingallowed Plaintiff to testify that the deceased doctor did not advise her of the scope or risks of hersurgery, which testimony went to the heart of her informed consent claim. In a footnote theSupreme Court noted that the verdict in its entirety must be vacated because the jury found in52