Breast-implant plaintiffs can recover even when told of risks.

If a doctor informs a patient about certain risks of an operation but not others, the patient can later sue for all the injuries caused by the surgery--including those she was warned about and willing to risk. So Pennsylvania's coordinating court for breast implant litigation has ruled. (In re Silicone Breast Implant Litig., No. GD94-14550 (Pa., Allegheny County Ct. C.P. Feb. 26, 2004).)

In his opinion, Judge R. Stanton Wettick wrote that no Pennsylvania case law directly addresses this question, but that "general principles of law governing lack-of-informed-consent claims and ... damage awards for tortious conduct" support the plaintiffs.

Legally, a medical procedure performed without informed consent is battery, Wettick wrote, and "where the procedure produces an injury which is a known risk that was not discussed with the patient, the law treats the patient as the victim of a battery. A person who commits a battery is liable for any injuries caused by that battery." The battery theory says that in a case of improper disclosure, the surgery should never have occurred, and therefore any harm, whether disclosed or not, also should not have occurred.

"It's a great plaintiff's verdict. It is also a fascinating, highly creative verdict," said Alan Perer of Pittsburgh, lead plaintiff counsel in the case. Some of his clients allege that they were incorrectly told their implants would last a lifetime, although literature enclosed with the implants recommended replacement after 10 years. Others were warned that a buildup of scar tissue might cause some hardening, but not that it would be as extensive or painful as it was.

"These women thought they might get a little hardening and they thought, 'OK.' They didn't know that to remove the scar tissue--a procedure called a capsulotomy--might require the doctors to bang a breast implant against a hard surface to break it up. In other cases it requires surgery," explained Perer's associate Matt Logue.

He described a case he is litigating involving a Pittsburgh police officer, whose scarring became so painful that she could no longer wear her bulletproof vest. "This woman had dreamed of being a police officer all her life, and if she had known that [getting implants] would cost her her career, she never would have had the surgery," Logue said.

And that's the key: whether a jury might reasonably conclude that if the plaintiff had known of the other risks, she would not have had the surgery. If the jury, Wettick wrote, finds that "a reasonably prudent patient would not have proceeded with the operation," then the plaintiff is entitled to damages meant to place her in the position she would have been in without the battery--that is, before the surgery.

"Since she cannot be returned to the status quo, she is entitled to damages for all losses which the surgery caused," he wrote. The crucial question is whether the nondisclosure is a "material fact" that put the plaintiff in the same position as someone who did not consent to surgery.

Perer said that he has over 400 cases in negotiations in the consolidated claim, of which about 30 are informed-consent cases. The court's ruling establishes a solid foundation for these cases, he said: "It clarifies the damages you can get in an informed-consent case. It clearly allows recovery for both the injuries you didn't know about and those you were warned about and were willing to assume the risk for."

In the decision, Wettick also acknowledged the potential for confusion over an apparent conflict between it and another ruling issued a few months earlier. In that one, the judge held that a separate plaintiff could not sue for lack of informed consent because she had not suffered any losses from the undisclosed risks. (In re Silicone Breast Implant Litig., No. GD94-14550 (Pa., Allegheny County Ct. C.P. Sept. 22, 2003).)

"I still don't understand that one," admitted Perer with a laugh. "Judge Wettick is very smart, very intellectual, and he likes to go off on these higher concepts [that] I have a difficult time following."