Gaulkin, Lewis and Labrecque. The opinion of the court was delivered by Lewis, J.A.D. Labrecque, J.A.D. (dissenting).
This is a medical malpractice suit. Plaintiff Johanna Kaplan and her husband, Sidney Kaplan, who sued per quod, appeal from a judgment entered on a jury verdict of no cause for action in favor of defendant Keith Haines, an orthopedic surgeon. Their complaint was grounded on (a) defendant's alleged negligence in that he performed an unnecessary operation based upon an improper diagnosis and (b) the claim that he performed an unauthorized operation having failed to secure an informed consent.
It is here contended that the trial court committed reversible error (1) in refusing to charge certain requests,
(2) by the instructions that were given to the jury, and (3) by denying plaintiffs' motion for a new trial.
We begin with the factual background as related by Dr. Haines. He was first consulted by Mrs. Kaplan at his office on October 24, 1961; he received a history from her which disclosed that she was 44 years old and at age ten had injured her coccyx in a fall from which she fully recovered. In 1951 she fell off a chair and reinjured the coccyx and, since that time, she suffered from a dull ache in the lower buttocks area which failed to respond to medical treatment. The distress had been increasing and, on occasions, pain would radiate down her left leg to the great and second toes; the last such attack, which lasted two days, occurred approximately one week before her visit.
The doctor performed various physical examinations and tests and made a diagnosis that plaintiff's major problems were due to her age and a painful arthritis of a degenerative nature at the lumbosacral joint, and a painful coccyx which he considered a lesser problem. He prescribed medication and therapeutic treatment, and ordered X-rays to be taken.
When the patient returned to his office on November 3, 1961, the doctor discussed the X-rays with her. He reaffirmed his diagnosis of arthritis in the lumbosacral joint and opined that her primary trouble was at that location, and the discomfort in the coccyx area could be the result of referred pain originating in that joint. He suggested hospitalization and traction.
On November 10, 1961 plaintiff was admitted to the Cooper Hospital. She was placed in bilateral Russell traction which was discontinued on November 20. Since the traction therapy failed to relieve the radiating pain into the patient's leg, a myelogram and fluoroscopic examination were performed on November 22. They revealed "some minimal defects at the lumbosacral area" and mostly on the right side.
The doctor testified that thereafter he had at least three conferences with the Kaplans, separately and together, lasting 15 or 20 minutes each, for a review and discussion of the matter. He explained to Mrs. Kaplan:
"* * * The things I have done to help you have not helped you. We have now arrived at the point where you have a choice to make. You have the choice of continuing with this pain, adjust your life to it with a brace or corset, it may be able to help it a little, but since the traction didn't help and since the traction immobilized the back, and since the effect of a brace is to immobilize the back, the brace doesn't offer much likelihood of helping either, and if you feel this pain is the type of a pain that you can live with and adjust your life to, well, then, that's what you ought to do. If you feel it is the kind of a pain that you just cannot consider enduring for day after day and month after month, then there is a fairly good chance that an operation would relieve at least a good part of this pain."
Although he did not recall the exact words used by plaintiff, he said "the thought that she expressed was that she just couldn't bring herself to look forward to a life with all this pain, and if an operation had a good chance of relieving it, she wanted the operation." The doctor said he told her husband:
"* * * the best way to do this is to put a bone graft in there and make these two vertebra grow together, that is make this last vertebra become part of the pelvic bone so this will stop the movement of this joint that is hurting, and if this joint doesn't move, it wouldn't hurt."
Plaintiffs consented to an operation which was performed on November 24. The recorded pre-operative diagnoses were primary "unstable lumbosacral joint" and secondary "post herniated disc." In the process of surgery it was found that the disc had not ruptured, but a "bulging" on the right side thereof was discovered which the doctor considered, because of its proximity to the nerves that pass through the vertebrae, could "well be responsible for some of the pain in her leg." The protruding area was removed and a spinal fusion of the last vertebra and the pelvic bone was consummated. The pathologist reported that a microscopic examination of
the excised substance revealed "Fibroelastic cartilage varying in staining quality suggesting degenerative change."
Plaintiff returned home from the hospital on December 10, 1961. The following January, however, she was again hospitalized for treatment of a staphylococcus infection which developed at the site of the incision. Defendant performed a second operation for removal of the original bone graft which had become involved with the infection. The patient was discharged from the hospital in April, and she continued visits to the doctor's office until August 1962. He testified that at the time of her last visit the wound had healed, "her back was nearly normal, she had some restriction in forward bending," but she reacted to other physical tests without restriction or pain and her mental condition "was much calmer."
Mrs. Kaplan's testimony was at variance with Dr. Haines' version of the facts in significant particulars. She stated that she was advised by the doctor, upon completion of his initial examination, that she had a bad disc involvement. After the ten days of traction, without relief, he told her:
"That the myelogram showed that there was a bad disc and this disc was pressing on a nerve and that he felt an immediate operation was necessary and if I didn't submit to an operation, I would become a wheel chair case."
The nature of the proposed surgery was described to her as a "disc operation." Plaintiff consulted her husband and the two of them, following a discussion of the matter with defendant, consented to an operation for the removal of a disc.
Plaintiff testified that she was told by the doctor, after the operation, that he had performed a laminectomy and a spinal fusion. Although unfamiliar with the technical terms used, she said, "Laminectomy I thought, was the removal of a disc for the correction of a herniated disc." She inquired of the doctor whether the coccyx had been removed and he said, "no, that he had run into trouble with the first
operation and he didn't have time to remove the coccyx, but he would operate on that the following week." The coccyx has never been removed.
In October 1962 plaintiff consulted Dr. James Nixon, an orthopedic surgeon in Philadelphia and, thereafter, she continued under his treatment.
Both sides produced medical evidence to support their respective contentions.
Dr. Philip Gilbert, a radiologist called as a witness for plaintiff, testified that the multiple-angle X-rays ordered by defendant in October 1961 were essentially negative and showed no gross abnormal bone or joint changes. They revealed, however, "a few minor spurs arising from the lateral margins * * * which indicate degenerative changes." He conceded that he could not deduce from such X-rays whether a disc was herniated. The witness also gave evidence that the interpretive notes of a staff member, with respect to said myelographic and fluoroscopic examinations made on November 22, disclosed:
"* * * there is a slight asymmetry at the nerve sleeve at the point space at the first sacral segment. There appears to be a slight elevation and incomplete filling of a nerve sleeve on the right side.
Dr. Nixon, when asked for his opinion as to whether the original diagnosis by Dr. Haines which led to the operation of November 24, 1961 was correct and whether the surgery performed was necessary, answered:
"One, the diagnosis, based on the assumed facts as presented, I feel was in error. Two, the surgical procedure as performed based on the diagnosis and based only on the diagnosis, would naturally be in error."
The doctor also voiced the opinion that the mere fact that a patient recognizes that she is going to undergo a hazardous procedure "is not enough"; it is necessary "that the patient be informed as to the possible adverse effects * * * of the surgery." The causally related disability and injuries of plaintiff were described by Dr. Nixon as "* * * a limitation of motion in her back * * * restriction of her general activities * ...