ELEANOR M. COONEY, As Executrix of the Estate of Daniel T. Cooney, Jr., Deceased v. Robert E. Booth, Jr., M.d.

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
NO. 01-1929
ELEANOR M. COONEY, As Executrix of the
Estate of Daniel T. Cooney, Jr., Deceased;
ELEANOR M. COONEY; ELEANOR SCHIANO;
HELEN E. COONEY MUELLER; DANIEL T. COONEY, III;
ROBERT COONEY INDIVIDUALLY,
Appellants
v.
ROBERT E. BOOTH, JR., M.D.; ARTHUR R. BARTOLOZZI, M.D.;
DAVID McHUGH, D.O. (Fictitious First Name);
DAVID G. NAZARIAN, M.D.; JOHN DOE, M.D., (FICTITIOUS NAME);
BOOTH, BARTOLOZZI, PENN ORTHOPAEDICS;
MARK MANTELL, M.D.; RECOVERY ROOM STAFF;
JANE DOE, JOHN ROE, ET AL., (FICTITIOUS NAMES)
GRADUATE HOSPITAL, (Formerly Allegheny Graduate Hospital);
PENNSYLVANIA HOSPITAL; ROBERT E. BOOTH, JR., M.D.;
MARK MANTELL, M.D. PERSONALLY;
BOOTH, BARTOLOZZI, BALDERSON,
PENN ORTHOPEDICS CORPORATION; DENNIS McHUGH
On Appeal From the United States District Court
For the Eastern District of Pennsylvania
(D.C. Civil Action No. 00-cv-01124)
District Judge: Honorable Eduardo C. Robreno
Argued January 23, 2002 BEFORE: NYGAARD and STAPLETON, Circuit
and CAPUTO, District Judge*
(Opinion Filed February 12, 2002 )
Helen E. Cooney Mueller (Argued)
Cooney & Mueller
8 Erli Street
Wayne, NJ 07470
Attorney for Appellants
Paul E. Peel (Argued)
O’Brien & Ryan
Suite 300 Hickory Pointe
Plymouth Meeting, PA 19462
Attorney for Appellees

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MEMORANDUM OPINION OF THE COURT
STAPLETON, Circuit Judge:
Appellants’ decedent, Daniel T. Cooney, Jr., consented to have Dr. Robert
Booth perform knee replacement surgery, but another surgeon, Dr. Arthur Bartolozzi,
performed the bulk of the surgery. After the surgery, Cooney’s foot became discolored
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* Honorable A. Richard Caputo, United States District Judge for the Middle District of
Pennsylvania, sitting by designation.
and no pulses were palpable. Bartolozzi and Booth consulted a vascular surgeon, Mark
Mantell. Mantell had to perform additional corrective surgery to repair a tear in the
popliteal artery. Cooney died as a result of secondary complications from the vascular
surgery.
Cooney’s estate and individual family members filed suit against Booth,
Bartolozzi, Mantell, and a number of other entities. The District Court granted summary
judgment to Bartolozzi. Plaintiffs voluntarily dismissed all other defendants except
Booth. A jury returned a verdict in favor of Booth.
At trial, plaintiffs pursued three theories of liability: (1) Dr. Booth
committed malpractice by performing the knee surgery on Cooney despite the fact that
Cooney suffered from peripheral vascular disease, and (2) Dr. Booth committed battery
on Cooney by causing him to be operated on without his informed consent in that (a)
Booth failed to advise him of the additional risk of knee surgery arising from his
peripheral vascular disease, and (b) Cooney consented only to an operation by Booth and
Booth exceeded the scope of that consent by causing most of the surgery to be performed
by Dr. Bartolozzi.
Prior to or during trial, plaintiffs’ counsel submitted a proposed instruction
(Charge "No. 6 INFORMED CONSENT") to the Court pertaining to their two informed
consent/battery theories. At the conclusion of the evidence, the Court provided counsel
with a tentative set of jury instructions and conducted a charge conference. The
conference began with the following advice from the Court and response by plaintiffs’
counsel:
THE COURT: . . . The motions are now closed. We’ll
proceed now to the charge conference.
I have provided you with a draft of my proposed jury
instructions. The draft embodies all of my rulings on the
instructions that you have submitted [to] me, so that if they’re
not included in the jury instructions, they have been
tentatively denied. If they have been included in a modified
fashion, those rulings are my tentative rulings, subject to
hearing your comments and your objections to that.
So why don’t we start with Mr. Klepp for the
plaintiff[s].
MR. KLEPP: Judge, my first impression was that
perhaps the court did not put in its draft of the charge the
increased risk and substantial factor, which is embodied in the
model charge 10.03B, but upon review, further review, I see
that it is in there.
THE COURT: Okay.
MR. KLEPP: Also, I do not believe that the charge

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has anything in it with regard to the informed consent
regarding battery under the cases that we have previously
cited to the Court, particularly plaintiffs’ request to Charge
No. 6. I certainly would ask that that be included in the
Court’s charge with regard to the informed consent/battery.
The Court’s tentative instructions were not made a part of the record so we
do not know what they said with respect to informed consent. It is clear, however, that
the charge ultimately given to the jury addressed both of plaintiffs’ informed consent
theories at some length, describing them in substantially the same manner as the
requested Charge No. 6. Contrary to appellants’ insistence, the Court’s instructions with
respect to those theories do not suggest in any way that the plaintiffs had to prove that Dr.
Booth was negligent in any way. On the contrary, the Court instructed that:
A physician who medically treats a patient, without the
patient’s informed consent, commits a battery on the patient
and []is liable for all injuries the patient suffered as a result of
that medical treatment, regardless of the care exercised in the
performance of the treatment.
While the Court did instruct on the concept of negligence, it did so solely in the context of
plaintiffs’ malpractice claim.
Immediately after the jury charge, the Court called a sidebar conference
and expressly inquired of counsel whether they had any objections to the charge as given.
Plaintiffs’ counsel replied, "No, sir."
The Verdict Sheet contained the following two questions, among others,
that the jury answered with a "No:"
1. Do you find that the defendant Robert E. Booth, Jr.,
M.D. was negligent?
* * *
3. Do you find that the defendant Robert E. Booth, Jr.,
M.D. violated the doctrine of informed consent?
We have carefully compared plaintiffs’ requested charge No. 6 with the
portions of the actual charge directed to the same subject matter and we find no material
difference. Moreover, to the extent there are any differences at all, given the District
Court’s comprehensive treatment of the informed consent/battery theories in its charge,
the alleged errors now pointed to by appellants clearly were not preserved by counsel’s
general objection at the charge conference.
We are mindful of the fact that it is not necessary to object to an erroneous
portion of a charge after it is given where the court previously has unambiguously and
finally rejected an objection "stating distinctly the matter objected to and the grounds of
the objection." F.R.Civ.P. 51. See Smith v. Borough of Wilkinsburg, 147 F.3d 272 (3d
Cir. 1998). The purpose of Rule 51, however, is to ensure "that the district court is made
aware of and given an opportunity to correct any alleged error in the charge before the
jury begins its deliberations." Id. at 276. Here the District Court had not finally rejected
Charge No. 6 at the time of the charge conference and, absent a specific objection
following the actual charge, it had no way of knowing that its efforts to accommodate the
general objection made at the conference had not been wholly successful.
The charge as given contains no plain error. The judgment of the District
Court will be affirmed. TO THE CLERK:
Please file the foregoing Memorandum Opinion.
/s/Walter K. Stapleton
____________________________________
Circuit Judge

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