Barner v. Gorman
| Decision Date | 12 August 1992 |
| Docket Number | No. 90-CA-914,90-CA-914 |
| Citation | 605 So.2d 805 |
| Parties | Matilda BARNER v. Douglas E. GORMAN, M.D. |
| Court | Mississippi Supreme Court |
William L. Bambach, Columbus, for appellant.
Stephen P. Kruger, Upshaw, Williams, Biggers, Page & Kruger, Claire M. Porter, Heidelberg & Woodliff, Jackson, for appellee.
EN BANC.
Matilda Barner brought action against Dr. Douglas E. Gorman, her plastic surgeon, based on his treatment of a scar on her neck. Barner appeals a summary judgment granted by the Circuit Court of Hinds County, First Judicial District, in favor of Dr. Gorman. Today, we find that a dispute of fact remains as to whether Barner gave informed consent prior to her surgery. The summary judgment is reversed, and this cause is remanded for jury determination of informed consent.
In April of 1986, Matilda Barner of Columbus, Mississippi, was involved in a motor vehicle accident and sustained a ruptured cervical disk. Following the accident, she underwent surgery for the removal of the disk anteriorly. The operation left Barner with a keloid scar approximately 7 cm. long and 1 cm. wide running vertically along the front of her neck.
Barner was referred to Dr. Douglas Gorman, a board certified specialist in plastic and reconstructive surgery practicing in Jackson, for treatment of the scar. Barner was first examined by Dr. Gorman on August 13, 1987, when he noted the hypertrophic blemish caused by the original disk removal surgery. Dr. Gorman discussed the options of treating the scar with kenalog injections or performing reconstructive surgery followed by kenalog treatments. Barner chose to have reconstructive surgery.
Barner checked into Hinds General Hospital on the morning of September 4, 1987. She signed a CONSENT TO OPERATION, ANESTHETIC AND OTHER MEDICAL SERVICES form. The document was also signed by C. Lloyd, LPN. That document contained the following language:
5. The nature and purpose of the operation, possible alternative methods or treatment, the risks involved, and the possibility of complications have been explained to me. No guarantee or assurance has been given by anyone as to the results that may be obtained.
The operation record reveals that Dr. Gorman attempted to reconstruct the 7-8 cm. keloid scar by using 3 Z-plasties and orienting the blemish so that it ran more along the creases of Barner's skin. This wound reconstruction procedure was completed in approximately two hours. Barner was discharged that afternoon.
Dr. Gorman later removed Barner's sutures and began kenalog treatments to counteract keloid scarring. Instead of the small scar previously on her neck, Barner had a massive keloid scar along the length of the front of her neck. After three kenalog treatments, Barner decided to terminate her relation with Dr. Gorman.
Barner subsequently filed this action against Dr. Gorman. To support his summary judgment motion, Dr. Gorman submitted an affidavit of Dr. Heber C. Ethridge, a board certified plastic and reconstructive surgeon practicing in Jackson, Mississippi, wherein Dr. Ethridge stated that the treatment of Barner had been appropriate. Dr. Ethridge further stated Barner's keloid scarring was not "caused nor contributed to by any action or omission of Dr. Gorman" and was a "natural consequence".
Dr. Gorman also provided an affidavit himself stating that he had told Barner that she would always have a noticeable scar present on her neck and that it was difficult to determine the degree of permanency. He stated that he specifically advised her about the potential of recurrent hypertrophy and made no guarantees as to the results of the procedure. In his affidavit, Dr. Gorman stated, "I complied with the standard of care for minimally competent plastic and reconstructive surgeons," and "[T]he treatment of Ms. Barner ... was appropriate." He claimed, by affidavit, that Barner's keloid scarring was not "caused nor contributed to" by his treatment but "developed as a natural consequence".
In a letter from Barner's expert, Dr. Joseph Stephens, III, a board certified plastic and reconstructive surgeon practicing in Arlington, Texas, Dr. Stephens acknowledged that Dr. Gorman's treatment of Barner appeared to be appropriate. Dr. Stephens added, "I find it hard to believe that the risk of recurrence of a similar scar would not be discussed at some length with a black patient as it is well known that blacks do have increased risk of scar hypertrophy or keloid scarring." In a later affidavit, Dr. Stephens stated that the standard of care which a competent plastic surgeon with a patient such as Barner should include "a discussion by the surgeon of the possibility of recurrence of the scar after surgery".
Barner submitted an affidavit in opposition to the summary judgment motion explaining that Dr. Gorman "told me he could make the scar on my neck go away". Barner's sworn statement indicates, "Dr. Gorman did not at this time or at any time thereafter explain the likelihood that even after the surgery I would probably have a permanent, disfiguring scar." Barner's sworn statement adds that Dr. Gorman never offered her, at any time, pertinent information regarding the surgery or treatment to allow her to make an informed decision. Barner stated, Barner claimed in the affidavit that Dr. Gorman never discussed alternative procedures or risks of the surgery and that no one explained the consent form to her. Barner concluded, "If Dr. Gorman had advised me that in all probability a disfiguring scar would still be there after the surgery, I would not have had the surgery," and "If Dr. Gorman had made the proper disclosure, I would have made a decision to decline surgery."
The trial court granted Dr. Gorman's summary judgment motion.
Dispute of material fact exists in the case sub judice regarding Barner's alleged informed consent, and summary judgment was error.
Barner argues on appeal that Dr. Gorman failed to inform her that the results of the reconstructive surgery could not be guaranteed and failed to inform her that further keloid scarring could occur from this second surgical procedure. She asserts that if this information had been disclosed, she would have foregone the reconstructive surgery. Moreover, Barner suggests that summary judgment was inappropriate to resolve this cause in light of the contradictory nature of the parties' evidence.
Dr. Gorman states that he specifically informed Barner of the risks of recurrent keloid scarring which attend the reconstructive process and that he did not guarantee the results of the surgical procedure. He suggests that the CONSENT TO OPERATION, ANESTHETIC AND OTHER MEDICAL SERVICES establishes his disclosure to Barner and provides ample evidence to support the summary judgment below.
While there is jurisprudence in other jurisdictions to the effect that disclosure is not required where the...
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