In his appeal to the Superior Court, Sacks first argued he was entitled to a new trial because the trial court erred in allowing the Bey’s expert witness, Dr. Marvin Gross, to testify beyond the proper scope of expert testimony for an informed consent claim.
Specifically, Sacks alleged he was prejudiced by Gross’ testimony that nerve root irritation in a tooth extraction is a significant and material risk of the procedure.
Sacks said it was not Gross’ job to give the jury his opinion as to which risks of a tooth extraction are material. He said it was the jury’s place to decide whether risks were material on the basis of the expert testimony. Todd said the court did not agree.
Todd explained that Pennsylvania has adopted the “prudent patient standard,” under which a doctor must “advise the patient of those material facts, risks, complications and alternatives to surgery that a reasonable person in the patient’s situation would consider significant in deciding whether to have the operation.”
In 1986, the Superior Court reviewed that standard in Festa v. Greenberg, 511 A.2d 1371 (Pa. Super. 1986), stating that a determination of what a reasonable person would consider significant within in a particular factual situation is “standard fare for jurors, for which they need no expert assistance.”
However, the Festa court found that expert testimony is needed for important secondary issues that are outside the realm of a lay person’s knowledge.
Todd said Bey’s argument against Gross’ testimony was without merit.
“Although we agree with Dr. Sacks’ contention that it is ultimately within the province of the jury or fact finder to determine materiality of a risk, we find no error in the trial court allowing the Beys’ expert to testify as to his opinion whether the risk of nerve root irritation was a material risk of the tooth extraction and whether that risk was not explained fully to Mr. Bey before the procedure,” Todd said.
“It was then for the jury to determine, after weighing all the evidence presented, the materiality of the risks involved.”
Sacks also argued that the trial court was wrong in precluding his attorney from cross-examining Bey about his knowledge of the risks of and alternatives to the extraction that he had learned from previous extractions.
“Dr. Sacks argues that because a patient’s consent cannot be considered to be informed if the consent was not given with a true understanding, the patient’s prior knowledge of the procedure gleaned from his past experience is relevant,” Todd said.
But the court found that argument was also meritless.
Todd said Bey’s case was somewhat unusual because typically in an informed consent claim the patient has not previously undergone the same procedure. In fact, Todd said, neither party’s attorney nor the trial court cited any case law for or against the argument that testimony of Bey’s prior knowledge of the procedure was prejudicial.
But Todd said the court could not come to the conclusion that Bey’s prior procedures gave him any sort of depth of knowledge about the risks of the procedure.
“Our further examination of this issue leads us to conclude that allowing testimony regarding the practices of other physicians with whom the plaintiff had come in contact very likely would confuse the jury as to the ultimate question – whether the physician in the case at issue properly informed the plaintiff of the risks and alternatives to that procedure,” Todd said.
Battery Still the Law
Sacks also tried to convince the court that the trial court erred in failing to instruct the jury on the doctrine of comparative negligence. Sacks claimed that under the Superior Court’s 1999 decision in Montgomery v. Bazaz-Sehgal, PICS Case No. 99-2307 (Pa. Super. Dec. 9, 1999) Cirillo, J; Popovich, J., dissenting (21 pages), informed consent claims are now grounded in negligence rather than battery.
However, Todd said that, as the Beys argued and the trial court held, Pennsylvania courts apply a battery standard to informed consent claims.
“Although the question repeatedly has been raised as to whether to adopt a negligence standard for informed consent cases, our Supreme Court has declined to do so thus far,” Todd said.
In Montgomery, Todd said, the Superior Court acknowledged an apparent distinction between informed consent cases grounded in negligence and informed consent cases based on a theory of battery.
Todd said Sacks took the court’s opinion as acknowledging the possible existence of an informed consent theory grounded in negligence. But Todd said he was wrong.
“In light of the significant volume of case law adhering to the battery theory of informed consent claims, until our Supreme Court holds otherwise, we decline to find that this lone statement grants [Sacks] to proceed under a negligence theory of lack of implied consent,” Todd said.
