Cacdac v. West

• Decision Date: 26 January 1999
• Docket Number: No. 84A01-9712-CV-407,84A01-9712-CV-407
• Citation: 705 N.E.2d 506
• Parties: Manuel A. CACDAC, M.D., Appellant-Defendant, v. Brenda WEST, Appellee-Plaintiff, and Ramana Reddy, M.D., Non-Appealing Defendant.
• Court: Indiana Appellate Court

Page 506

705 N.E.2d 506

Manuel A. CACDAC, M.D., Appellant-Defendant, v. Brenda WEST, Appellee-Plaintiff, and Ramana Reddy, M.D., Non-Appealing Defendant.

No. 84A01-9712-CV-407.

Court of Appeals of Indiana.

Jan. 26, 1999.

R. Steven Johnson, Sacopulos Johnson Carter & Sacopulos, Terre Haute, Indiana, for appellant.

Jerry Garau, Mary Findling, Findling Garau Germano & Pennington P .C., Indianapolis, Indiana, for appellee.

OPINION

KIRSCH, Judge.

Manuel A. Cacdac, M.D. (Cacdac) appeals the trial court's denial of his motion for partial summary judgment on several issues. Brenda West (West) cross-appeals the grant of Cacdac's motion on one issue. Together, the parties present the following issues for review:

I. Whether the trial court erred in determining there were genuine issues of material fact that precluded summary judgment on the issue of whether Cacdac failed to obtain informed consent from West to perform surgery on her.

II. Whether the trial court erred in determining there were genuine issues of material fact that precluded summary judgment on the issue of whether Cacdac's representations to West constituted actionable fraud.

III. Whether the trial court erred in concluding as a matter of law that the Indiana Medical Malpractice Act does not prohibit an award of punitive damages and that West may pursue her punitive damages claim against Cacdac.

IV. Whether the trial court erred in concluding that Cacdac's performance of surgery without obtaining West's informed consent did not constitute a battery.

We affirm the denial of summary judgment on Issues I, II, and III, and reverse the grant of summary judgment on Issue IV.

FACTS AND PROCEDURAL HISTORY

Cacdac is a neurosurgeon practicing in Terre Haute. West suffered from low back pain and left lower extremity pain and became a patient of Cacdac's in November 1988. Cacdac performed surgery on West in December 1988. West claims that she consented to the surgery based on Cacdac's representations that she risked becoming paralyzed if she declined the surgery.

West submitted her claim against Cacdac and others involved to the Medical Review Panel and then filed her complaint in the trial court alleging that the surgery Cacdac performed was medically unindicated, was improperly performed, was performed without obtaining West's informed consent, and that Cacdac's follow-up care was negligent. West's complaint also alleged that Cacdac fraudulently induced her to undergo the unnecessary surgery by misrepresenting the risks of foregoing it.

Cacdac filed a motion for partial summary judgment on West's claims that the surgery and follow up care were performed negligently. West conceded these issues and the trial court granted the motion. Cacdac then filed a second motion for partial summary judgment directed at West's claims that Cacdac misrepresented that West needed surgery, that her consent was invalid, that Cacdac committed battery by performing the surgery without her informed consent, and that she was entitled to punitive damages. The trial court granted Cacdac's motion on West's battery claim and denied it on the remaining issues. At Cacdac's request, the trial court certified the ruling for interlocutory appeal, and this court accepted the case pursuant to Indiana Appellate Rule 4(B)(6).

DISCUSSION AND DECISION

Summary judgment is appropriate when the designated evidence demonstrates that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Ind. Trial Rule 56(C). When reviewing a motion for summary judgment, this court applies the same standard utilized by the trial court, and we resolve any doubt as to a fact, or an inference to be drawn therefrom, in favor of the party opposing summary judgment. Bamberger & Feibleman v. Indianapolis Power & Light Co., 665 N.E.2d 933, 936 (Ind.Ct.App.1996). We will affirm a trial court's grant of summary judgment if it is sustainable on any theory found in the evidence designated to the trial court. Id.

I. Whether Cacdac Failed to Obtain Informed Consent

Cacdac first argues that the trial court erred in determining that there were genuine issues of material fact on the issue of whether he failed to obtain West's informed consent to the surgery. He bases his argument on IC 16-9.5-1-4, which was the informed consent law in force at the time of the events in question. That statute created a rebuttable presumption that the consent provided by the patient was an informed consent if it was in writing, signed, witnessed, and explained to the patient before the procedure was performed. The statute further provided that the explanation must include, among other things, the general nature of the patient's condition, the material risks of the treatment and the reasonable alternatives to the treatment. Cacdac asserts that because he complied with these requirements, there exists a rebuttable presumption that West gave an informed consent to the surgery.

Cacdac's argument begs the question. At issue here is whether Cacdac accurately explained to West the risk of foregoing the surgery. The designated material includes West's testimony that in explaining her treatment options, Cacdac told her that if she opted to forego the surgery, she could become paralyzed by twisting or stepping off a curb the wrong way. In terms of the statute, the material issue of fact is whether Cacdac did in fact explain to West her condition and the reasonable alternatives to the surgery. These are conditions precedent to the rebuttable presumption. Whether they have been satisfied are material questions of fact, and until these factual issues have been determined. Thus, the rebuttable presumption does not arise.

Cacdac also contends that he did not fail to inform West of a risk that a reasonably prudent physician would have disclosed. In Culbertson v. Mernitz, 602 N.E.2d 98 (Ind.1992), our supreme court held that the standard for evaluating the quality of the information given to a patient in conjunction with obtaining her consent to a procedure should be evaluated according to the "reasonably prudent physician" standard. Id. at 103. Accordingly, a plaintiff alleging a failure to obtain informed consent must present expert medical testimony to establish whether a physician's disclosure of risks comports with what a reasonably prudent physician would have disclosed. Id. In this case, both West and Cacdac have presented expert testimony about whether Cacdac fairly communicated to West the risks of alternative courses of treatment. These experts disagree with regard to whether Cacdac's statements and actions met the standard of the reasonably prudent physician. Dr. Robert Cravens, a member of the Medical Review Panel, testified that, although there was a chance that West's condition would improve without the surgery, she should also have been informed of the risk of paralysis that she undertook by foregoing the procedure. He testified,

"Q: So in this case it's your opinion that it was appropriate for Dr. Cacdac to say to Brenda Brown 'Your options are surgery or continue taking the medicine but be aware that you could step off the curb the wrong way or twist the wrong way and be paralyzed'?

A: I'm not saying that that was correct in stating it that way, but I think if you want him to say there's a chance that she can get absolutely normal from this and be pain-free, then I think you have to go the other way and say 'There's a chance you can be paralyzed.' "

Record at 1667. However, West's expert, Dr. Karl Manders, testified that the risk of paralysis was incredibly small, and that both Cacdac and Dr. Cravens were overstating that risk. About Dr. Cravens' testimony, Dr. Manders stated,

"I think it's a ridiculous statement. I doubt Doctor Cravens or any other orthopedic surgeon has seen two or three percent of patients who have had the condition that Brenda West presented result in paralysis.... Is it possible? I would have to say anything is possible. Is it no more than two or three percent? I would say that is absolutely ludicrous."

Record at 1777. Dr. Manders' opinion is that Cacdac's communication to West did not meet the standard of the reasonably prudent physician. This conflicting expert testimony creates a genuine issue of fact for resolution by the trier of fact. As such, this issue is inappropriate for resolution by summary judgment. The trial court did not err.

II. Whether Cacdac's Statements Constitute Actionable Fraud

Cacdac next argues that any statements he made about West's possible future paralysis did not amount to actionable fraud. To sustain an action for fraud, it must be proven that a material representation of a past or existing fact was made which was untrue and known to be untrue by the party making it or else recklessly made and that another party did in fact rely on the representation and was induced thereby to act to his detriment. Fleetwood Corp. v. Mirich, 404 N.E.2d 38, 42 (Ind.Ct.App.1980). To purposely misstate facts which would cause the signing of a document is fraud. Id. at 45. Cacdac first contends that the statements relied upon by West were not fraudulent because they were true. Again, he points to the expert testimony for support. On the issue of whether West faced the possibility of paralysis, Dr. Cravens testified:

"Q: You think that's a definite possibility in this case?

A: I think it's a possibility, yes.

Q: What percent?

A: I think it's a small percentage, it probably happens in no more than 2 or 3 percent, but it's a possibility."

Record at 1666-67. However, Dr. Manders testified about the possibility of paralysis as follows:

"I think it's a ridiculous unlikelihood. I think the chance of that happening--I have never seen it happen in 40 years with a spondylolisthesis, and with the type of pathology that this patient had. I think the chance of that happening would be a fraction of one tenth of one percent. Almost impossible."

Record at...