PENNSYLVANIA LEGAL UPDATE
SUMMER 2000 ISSUE

Pennsylvania law requires that physicians acting in nonemergency situations first must obtain their patients' "informed consent" prior to performing surgical or operative procedures. The doctrine of informed consent requires that a physician disclose to each patient the material facts, risks, complications, and alternatives to surgery that a reasonable, prudent person would consider significant in deciding whether to undergo the surgery. Where incisions, excisions, or sutures are made and surgical instruments are used, the procedure qualifies as one for which the physician must obtain the patient's informed consent.

The doctrine of informed consent arises from the notion that a patient and a physician are entering into a contract. For the contract to be valid, both parties must understand and agree upon the nature of the procedure and both the expected and the possibly unexpected results. The physician need not disclose all information that he or she knows, but must generally advise the patient of the facts, risks, complications, and alternatives to surgery.

Pennsylvania appellate courts have recently decided several cases that explore the limits of informed consent. In one case, a woman who underwent surgery for esophageal cancer claimed that in response to her questions prior to surgery her surgeon told her that he performed the procedure about once each month. She further claimed that after undergoing the surgery with unsuccessful results she discovered that the surgeon in fact only performed the procedure five times each year.

The Pennsylvania court ruled that patients who question their surgeons prior to surgery about their surgeons' competence, experience, and expertise are seeking information that is highly relevant to them in making an informed decision about surgery. "A particular surgeon's skill, which many times is borne by virtue of experience, is important to those making a choice of their personal surgeon," the court noted.

In another case, a young man sued a group of surgeons over complications that arose following his surgery for spinal fusion, in which the surgeons used bone screws to fuse the young man's vertebrae. The screws were approved by the FDA for use in long bones but not for use in the bones of the spine. The manufacturer's literature enclosed with the screws advised that in most instances the screws eventually must be removed due to various complications that arise following surgery.

Several years after the initial surgery, the young man had to undergo surgery for the removal of the screws. In connection with the second surgery, he discovered that the screws were not FDA approved for use in the spine and that eventual removal of the screws had been recommended by the manufacturer. He had been advised of neither issue prior to his first surgery.

In the lawsuit brought by the young man, his surgeons maintained that informed consent disclosure need not include details about implanted devices. They also raised concerns that FDA approval should not be an element of informed consent. At the time, no bone screws were approved by the FDA specifically for use in the spine and orthopedic surgeons across the country were regularly using the nonapproved screws for spinal surgery. The surgeons claimed that their use was an appropriate "off label" use of the bone screws and was not a "risk" of surgery.

The court decided that the doctrine of informed consent mandates that a physician share information with his or her patient regarding the limits of FDA approval when the physician is making an innovative or "off label" use of a medical device. Patients, the court observed, might well assume that any device used in surgery was approved by the FDA, "a well known federal agency charged with regulating the commercial distribution of medical devices." The court found that the use of the bone screws constituted a "risk" and a "fact" that a reasonable, prudent patient would consider relevant to the decision to undergo spinal surgery.

Where an operative procedure is conducted without the patient's informed consent, the patient may have a legal claim for both medical negligence and "battery," which can generally be defined as an unwanted touching. Unlike most medical malpractice cases, in battery claims the patient need not prove that the doctor was negligent. The patient must only prove that the doctor conducted a procedure without the patient's informed consent. The amount of damages suffered by the patient is determined by the jury and must be supported by some evidence produced by the patient.

Doctors need not enlighten all of their surgical patients with the details of their education and experience. However, they must provide accurate and truthful answers to those patients who inquire. They need not guarantee the reliability of devices that they implant, but they must share information about the limits of FDA approval and any known risks. The entitlement to this information is something that patients should value and take seriously. When signing an informed consent form, patients should take time to read the form and, if necessary, ask for more information.

It is wise for parents to name legal and physical guardians of their minor children to serve in the event of their deaths. But the creation of a guardianship by a parent is not always controlling. Pennsylvania law provides that all custody cases must be decided in the best interests of the child. Anything that can have an effect on the child's physical, intellectual, moral, and spiritual well-being is considered by the court in choosing a custodian or guardian.

A sole surviving parent may name a guardian to take custody of a child upon the parent's death. But other relatives or adults significantly attached to the child later can challenge the guardianship and seek custody of the child. Courts initially will presume that the parent's choice of guardian is the best choice. However, the court will listen to testimony from challengers and will consider whether others interested in the child's care might be better custodians. Anyone who challenges a deceased parent's choice of guardian has a heavy burden to prove that the court should reject the parent's choice.

Where parents are separated or divorced and the custodial parent dies, the surviving parent has custodial rights superior to those of any guardian named by the deceased parent. A natural parent's custody rights cannot be terminated by the death of the other parent. If the surviving natural parent is incompetent, unfit, missing, or unwilling to care for the child, the court can award custody to a guardian named by the deceased parent. Additionally, if a guardian named by the deceased parent has provided essential parenting for the child, he or she may have standing to challenge a competent, interested natural parent's rights. But the strong rights of the natural parent are very difficult to defeat.

Whether married, separated, or divorced, parents should strive to cooperate to identify a mutually acceptable guardian to take custody of their minor children in the event of their deaths. Where separated or divorced parents cannot agree, each parent must realize that the courts will favor the surviving parent but will consider the claim of an involved third party, especially one identified as the preferred custodian by the deceased parent.

Residential neighborhoods often are protected by zoning ordinances and restrictive covenants. Zoning ordinances are created by the municipal governments of cities, townships, and boroughs. The ordinances regulate the use of land, declaring which areas are residential, commercial, or industrial. Special enterprise, agricultural, educational, or medical zones may exist in some municipalities.

Restrictive covenants are different. Deeds written to convey property from one owner to another may include language restricting the use of the property. In planned residential developments, a lengthy set of restrictive covenants may be recorded. Usually these covenants are not actually listed in the deed to each lot but are recorded in the county Office of the Recorder of Deeds and are simply referenced in the deeds. A prospective buyer or his or her attorney must read and understand all zoning ordinances and recorded restrictions to fully understand the permitted uses of a property.

In two recent Pennsylvania cases, homeowners were prohibited from parking commercial trucks at their homes. In one case, the truck parking was found to violate the local zoning ordinance. In the other case, a set of restrictive covenants was deemed to ban truck parking.

In the zoning case, a homeowner regularly parked his truck in the rear of his home in a residential zone. The homeowner was a tools franchisee who sold and serviced commercial tools. His truck measured 16 by 10 feet and contained all of his tools and equipment, a telephone, a fax machine, and a computer. He kept all of his inventory in the truck and conducted all of his business out of the truck. The homeowner received about eight business-related mail packages per month.

After neighbors complained about the homeowner's business activities, he was cited by the local zoning officer for violating the ban on business uses in the residential zone. The Pennsylvania Commonwealth Court upheld the zoning hearing board and found that the homeowner's receipt of business mail and his parking of the truck at his home violated the ban on business uses in the residential district.

In the restrictive covenant case, a homeowner sometimes parked his truck tractor and one or more trailers at his home in a planned residential development. He also sometimes repaired the truck tractor at his home. A lawsuit was brought against the homeowner by the Architectural Control Committee of the development. The Pennsylvania Superior Court found that the covenants that prohibited all uses except residential uses and that banned "tractors" and "trailers" were clearly violated by the homeowner. "Storage of heavy equipment is neither incidental to, nor customary in, a residential area," the court noted.

Litigation concerning the permitted use of residential property is complicated and is subject to many exceptions. Homeowners may be entitled to variances from zoning regulations, but restrictive covenants are subject to strict interpretation by the courts. Before assuming that a particular use is permitted or prohibited, a homeowner should thoroughly review the zoning laws, all recorded covenants, and the history of the use of the property.

In a recent Pennsylvania case, a fly fishing club sued to prevent nonmembers from fishing in a section of the Lehigh River. The club leased considerable acreage along two miles of the Lehigh River and stocked the river with fish. Claiming that the land and the river were the club's private property, the club sued to exclude any nonmembers.

In hearing the case on appeal, the Pennsylvania Superior Court observed that the Ohio, Monongahela, Youhiogeny, Allegheny, Susquehanna, Juniata, Schuylkill, Lehigh, and Delaware Rivers are all "navigable" public rivers as designated in 1826 by the Pennsylvania Supreme Court. When declaring the rivers to be navigable public waterways, the supreme court denied the owners of the land along the banks of those rivers the exclusive right to fish in the rivers. Instead, the court found that the right to fish in the navigable rivers of Pennsylvania belongs to the Commonwealth and thus to the public.

In the case involving the fly fishing club, the superior court held that the judicial declaration of navigability made in 1826 is essentially final. The club contended that the stretch of the river along its land was not actually navigable and had never been navigable. But the superior court found that once the rivers were declared navigable their entire lengths were deemed public property owned by the Commonwealth. The court refused to engage in a "piecemeal" analysis of the navigability of a portion of the Lehigh River.

While the legislature can pass laws for river management, it cannot declare any other Pennsylvania rivers to be navigable, nor can it change the status of any of the navigable rivers already identified by the court. Members of the public cannot trespass on private land, but they are entitled to fish, in compliance with state fishing regulations, on all public rivers.

The Judicial Change of Name Act gives Pennsylvania courts control of requests for name changes. Anyone who wishes to change his or her name commences the process by filing a petition requesting the change. The intended name change must be advertised in local newspapers, after which the court holds a brief hearing on whether the name change is legitimate.

The primary purpose for involving the courts in name changes is to prohibit fraud. A person who wants to change his or her name must prove that it is not for the purpose of defrauding creditors or avoiding financial obligations. If the requested name would cause confusion, or if the name is bizarre, unduly lengthy, or offensive, the court has the power to deny the name change.

Where a parent seeks to have a child's name changed, the inquiry is different. As to children, the court focuses on the best interests of the child. Where a mother who remarried after divorce sought to change the name of the child of her first marriage to a hyphenated version of her first and second married surnames, the Pennsylvania Supreme Court found that the child's best interests were not advanced by the proposed change.

The mother claimed that the child wanted to have the same last name as his mother and his younger half-siblings. The mother testified that her son wanted to "cement his feeling of being a part of the same family unit." The child's natural father objected to any change and attributed the mother's motivation to a continuation of the bitterness that had surrounded their divorce. Noting his son's close bonds to paternal relatives, the father asked that the court preserve those bonds by refusing the name change. The court agreed and denied the mother's request.

At a child's birth, the custodial parent is entitled to give the child the last name of either parent, or even a wholly different last name. The custodial parent is entitled to control the choice of the name. If parents dispute who is entitled to name a newborn, a mother is more likely to be in physical control of the infant and to be regarded as the custodial parent. Pennsylvania courts have noted that where a mother is disabled or deceased, or where a court order is issued, fathers may control the naming of a newborn child. Once a birth certificate has been issued, a parent who objects to the name of a child can change the name only by filing a petition in court.

The courts have no preference for the last name of either parent. In focusing on the best interests of the child, the length of time the child has been named, the identity of similarly named siblings or family members, and the bonds between the parents and the child are all important issues. If the child understands the significance of the proposed change, the court may interview the child and consider his or her preferences.