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Marino v. Ballestas

November 28, 1984


On Appeal from the United States District Court for the Middle District of Pennsylvania

Author: Becker

Before: WEIS and BECKER, Circuit Judges, and ACKERMAN, District Judge*fn*


BECKER, Circuit Judge.

This is an appeal from a judgment in favor of the defendant in a medical malpractice case arising out of a snowmobile accident in which the plaintiffs' minor daughter fractured her right arm.*fn1 A jury rejected, inter alia, the plaintiffs' contention that they did not give informed consent for defendant, Roberto Ballestas, M.D., to perform surgery on their daughter because Dr. Ballestas had failed to inform them of the existence of an alternative, noninvasive method of treatment. The district court refused to grant the plaintiffs a judgment n.o.v. or a new trial, and they appealed. The primary question before us is whether the district court erred in concluding that there was sufficient evidence to support the jury's verdict regarding informed consent. We hold that the jury's verdict was against the weight of the evidence, and remand the case to the district court for a new trial on the informed consent claim. In all other respects, we affirm the judgment of the district court.


On February 18, 1980, Maria Marino, age eleven, fell from a snowmobile while vacationing with her parents in the Pocono Mountains. Maria sustained an injury to her upper right arm and was immediately transported from the accident site to Gnaden Huetten Memorial Hospital in Lehighton, Pennsylvania. After being examined by emergency room personnel, Maria was referred to Dr. Roberto Ballestas, an orthopedic surgeon.

In his examination of Maria, Dr. Ballestas noted limited lateral motion and weakness in her wrist, and virtually total loss of dorsiflexion. After the examination and review of Maria's x-rays, Dr. Ballestas diagnosed Maria's condition as a fractured right humerus with possible involvement of the radial nerve.

The testimony regarding what occurred after this point is in conflict. Dr. Ballestas testified that he explained to Maria's parents, appellants Joseph and Claide Marino, the need for immediate "open reduction" surgery to explore the radial nerve and thereby diminish the risk of permanent nerve damage. According to Dr. Ballestas, he informed the Marinos of his belief that any delay in treatment involved the possibility of further nerve damage and the potential loss of use of the arm. It is undisputed that the Marinos expressed the desire to have their daughter treated by their family orthopedic surgeon, Dr. Harold Friedman. Dr. Ballestas testified that he responded to this desire by telling the Marinos that they could take Maria home to be treated by another doctor, but that this course would risk permanent injury to Maria's arm.

According to Mrs. Marino's testimony, Dr. Ballestas never told her that Maria could be removed from the hospital. She testified that Dr. Ballestas told her that Maria would lose the use of her arm if it was not operated on within two hours, and that, as a result of Dr. Ballestas' comments, she felt that she never had the choice of removing Maria from the Gnaden Huetten Memorial Hospital and taking her home to New Jersey for treatment. Mr. Marino testified that he too was left with the distinct impression, after listening to Dr. Ballestas, that Maria could not leave the hospital because immediate surgery was the only treatment possible. Both parents stated that, had they been informed of a school of accepted medical thought that advocates immobilizing the arm and delaying surgery indefinitely, they would not have consented to immediate surgery and would have instead taken Maria home for treatment.

The parties agreed that, after Dr. Ballestas informed the Marinos that immediate surgery was indicated, Mr. Marino telephoned Dr. Friedmann for advice concerning the proposed surgery; they also agreed that Dr. Friedman did not speak with Dr. Ballestas regarding Maria's condition. Mrs. Marino testified that she conveyed to Dr. Friedman the information about Maria's arm given to her by Dr. Ballestas and asked Dr. Friedman whether the proposed surgery was appropriate. Mrs. Marino also testified that Dr. Friedman told her the operation might be appropriate in some instances but that he could not determine whether this was such a case because he had not examined Maria or reviewed her x-rays.

Appellants gave their written consent to the operation and Dr. Ballestas performed the surgery. During the course of the open reduction and exploration of the radial nerve, Dr. Ballestas inserted a metal surgical plate and two screws into Maria's arm for the purpose of internal fixation. Because of Maria's complaints of sensitivity, Dr. Friedman removed the plate and screws from her arm several months after the original operation. Maria has regained full function of her arm, but she has a residual scar that may require surgical revision.

At trial, both sides offered medical experts. Plaintiffs called Dr. Friedman, who testified that in Maria's case there had been absolutely no need to explore the nerve. In his opinion, Maria's arm would have recovered without the surgery performed by Dr. Ballestas, and, therefore, a competent surgeon would not have undertaken the operation. Instead, he testified, the proper treatment would have been to immobilize the arm in plastic splints, which would have permitted Maria to travel without risking further damage.

Dr. Ballestas called two experts: Dr. Walter Finnegan, an orthopedic surgeon from Allentown, Pennsylvania, and Dr. Peter Lichtenfeld, a neurologist from New York City. Dr. Finnegan, while testifying that he and his colleagues in Allentown would have performed the immediate open reduction and exploratory surgery performed by Dr. Ballestas, acknowledged that there are two schools of medical thought about the appropriate treatment in cases like Maria's. He stated:

[T]here are at least two, for simplicity, two basic schools of thought, one which would say let the fracture heal and hope, that the radial nerve returns . . . and if not, go back later, months later, and explore the nerve. The other school, which I really feel is more conservative, but it would be viewed by some as more aggressive, is to open it or surgically explore it early.

During cross-examination, Dr. Finnegan testified that he would tell the parents of a patient ...

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