An Eastern Shore woman who became pregnant two years after undergoing surgery to prevent conception had the right to have a jury decide her physician gave her adequate information about the operation's potential for failure, the Maryland Court of Appeals ruled this week.
Katie Sue Sard had sued her doctor, Erving D. Hardy, for negligence in failing to tell her about her husband about the possibility that the operation of sterilization were available.
However, a Talbot County Circuit Court judge presiding over the case told the jury to find the Sards' claim of negligence was without merit because, shortly before the 1968 operation, Mrs. Sard was handed a consent form explaining the possibility that the operation might fail and signed the form without reading it.
Mrs. Sard's husband, David Penn Sard also had signed this form although, accorging to the Court of Appeals' opinion, he was functionally illiterate.
Before the Sards were given the form, however, "there is evidence that (Hardy) neve directly disclosed to Mrs. Sard that the operation might not be 100 per cent successful . . . nor that other surgical methods would have done significantly more effective," the uranimous decision said.
"What is more, Mrs. Sard testified that (Hardy) had . . . assured her before the operation that she would not bear any more children after the sterilization," the opinion continued.
"Given these facts, a jury could have that a reasonable person in Mrs. Sard's position would have attached considerable failure for the (operation) and therefore should have been informed of the risk of fertility."
At the same time as he performed the sterilization procedure, called tubal ligation, on Mrs. Sard, the court said, Hardy also was delivering her second child by cesarean section. Hardy testified during the trial that sterilizations performed under these circumstances have a 2 per cent chance of failure; other methods of performing a tubal ligation have fail-rates as low as 1/10 of a per cent, he said.
The state's second-level appeals court, the Court of Special Appeals, had issued an opinion agreeing with the trial judge's action. It held that this information would not have been a crucial factor in Mrs. Sard's decision to undergo contraceptive surgery.
The state's highest court, however, disagreed with this opinion, saying that the question of whether or not this information was crucial should be decided by a jury.
As a result, the court ordered a new trial in the case.