Guinan v. A.I. Dupont Hosp. for Children, 08-0228.

• Decision Date: 06 February 2009
• Docket Number: No. 08-0228.,08-0228.
• Citation: 597 F.Supp.2d 517
• Parties: Molly GUINAN v. A.I. DUPONT HOSPITAL FOR CHILDREN, et al.
• Court: U.S. District Court — Eastern District of Pennsylvania

597 F.Supp.2d 517

Molly GUINAN v. A.I. DUPONT HOSPITAL FOR CHILDREN, et al.

Civil Action No. 08-0228.

United States District Court, E.D. Pennsylvania.

February 6, 2009.

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Barbara R. Axelrod, Catherine A. Rothenberger, James E. Beasley, The Beasley Firm, LLC, Theresa M. Blanco, Eaton & McClellan, Philadelphia, PA, for Molly Guinan.

R. Nicholas Gimbel, McCarter and English, L.L.P., Sara Petrosky, Suzanne N. Pritchard, McCann and Geschke, P.C., David J. Creagan, David E. Edwards, White & Williams LLP, Philadelphia, PA, John M. Hudgins, IV, Weinberg Wheeler Hudgins Gunn & Dial LLC, Atlanta, GA, for Defendants.

MEMORANDUM & ORDER

SURRICK, District Judge.

Presently before the Court are the Motion of Defendant William I. Norwood, M.D., Ph.D., for Summary Judgment Pursuant to Rule 56 of the Federal Rules of Civil Procedure (Doc. No. 20), the Motion for Partial Summary Judgment to Dismiss the First Cause of Action (Doc. No. 21), the Motion for Partial Summary Judgment to Dismiss Count II of the Complaint Alleging Fraud and Intentional Misrepresentation and Punitive Damages Claim (Doc. No. 22), the Joint Motion of Defendants for Summary Judgment or Alternatively for Partial Summary Judgment on Medical Monitoring Claim Set Forth in Count VI (Doc. No. 23), and the Institutional Defendants' Motion for Partial Summary Judgment (Doc. No. 24). For the following reasons, Defendants' Motions will be granted in part and denied in part.

I. BACKGROUND

Plaintiff is one of several infants who had a controversial procedure to correct a congenital heart defect performed on her by doctors at the A.I. duPont Hospital for Children in Wilmington, Delaware.¹ Plaintiff was born with Down Syndrome and a combination of three heart defects: tetralogy of Fallot, complete common atrioventricular canal defect, and severe pulmonary stenosis.² These defects are uncommon but well-known congenital cardiac malformations that accompany Down Syndrome. The defects' primary effect on Plaintiff was to prevent her right ventricle from performing its function of receiving deoxygenated blood from the right atrium and pumping that blood to the pulmonary artery for oxygenation in the lungs. This, in turn, resulted in Plaintiff having insufficiently oxygenated blood, giving Plaintiff's skin a bluish or purple color.

Defendant Dr. Norwood decided that a shunting procedure known as the Fontan procedure was the most appropriate treatment for Plaintiffs condition. (Doc. No. 33, Ex. YY at 38 (hereinafter, "Norwood Dep.")); (Doc. No. 20, Ex. A ¶¶ 2, 4 (hereinafter, "Norwood Decl.").) In Plaintiffs case, the Fontan procedure modified the physiology of her heart to "allow blood to bypass [her] non-functioning right ventricle and go directly and passively to the lungs to be oxygenated." (Norwood Decl. ¶ 5.) When Plaintiff was born on March 12, 2001, achieving the so-called Fontan physiology required two open heart surgeries, the Hemi-Fontan and the Fontan completion ("Surgical Completion"), respectively. (See Norwood Decl. ¶¶ 6-10.) Dr. Norwood performed a Hemi-Fontan on Plaintiff two months after she was born, on May 14, 2001. (Id. ¶ 4.) The sequence of events that precipitated the instant lawsuit began with the second surgery.

Plaintiff was scheduled to have a Surgical Completion of her Fontan on May 9, 2002. However, instead of having her Fontan completed, Plaintiff had her atrioventricular valves repaired. There is disagreement with regard to the goal of the second surgery. On one hand, Plaintiffs parents thought that Dr. Norwood was going to perform the Surgical Fontan, and it was not until after the surgery was over that Plaintiffs parents discovered that the Fontan had not been completed. (See Doc. No. 33, Ex. L Vol. I at 101 (hereinafter, "K. Guinan Dep. Vol. I").) On the other hand, Dr. Norwood indicates that, prior to the surgery, it was apparent that Plaintiff had developed "severe leakage of her atrioventricular valves, [which] obviat[ed] for the moment the second stage of her Fontan procedure." (Id. ¶ 12; see also Norwood Dep. at 47 (noting that completing the Fontan and repairing Plaintiffs atrioventricular valve at the same time was not "the most favorable way of dealing with [Plaintiffs] physiology"); Doc. No. 33, Ex. F at 3 (consent form signed by Plaintiff's father describing surgical procedure as "repair mitral valve").) In any event the May 9, 2002, surgery did not result in Plaintiff receiving a Fontan completion.

After the surgery, Plaintiffs attending physician, cardiologist Dr. Samuel Gidding, informed Plaintiffs parents that the Fontan had not been completed but that the procedure could be completed in the catheter lab. (Id. at 101.) Completing the Fontan in the catheter lab involved a relatively new procedure that entailed a cardiologist employing a covered stent via catheter to complete the Fontan procedure intravascularly ("Catheterization Fontan").³ (See Norwood Decl. ¶ 9; see also, e.g., Doc. No. 33, Ex. DDD at 72 (hereinafter, "Mullins Dep.") (describing some benefits of catheterization over open heart surgery).) The theoretical advantage of such a procedure was that it avoided the risks that accompany open-heart surgery. The parties present very different versions of what occurred from this point forward in Plaintiffs treatment. However, the following facts are not in dispute.

On October 14, 2002, cardiologist Dr. Murphy implanted a Cheatham Platinum covered stent ("CP stent") in Plaintiff. The CP stent was manufactured by NuMed, Inc., a New York corporation that is one of the few developers of pediatric medical devices in the United States. (See Mullins Dep. at 34-38.) The CP stent had not been approved by the Food and Drug Administration when Dr. Murphy implanted the CP stent in Plaintiff. On the day Plaintiff had the procedure performed, Plaintiffs father signed a consent form provided by the Hospital that described the procedure as "Transcatheter placement of intravascular stent: Covered stent completion of cavopulmonary connection." (Doc. No. 25, Ex. 5 at 2 (hereinafter, "du-Pont Consent Form")); (Doc. No. 33, Ex. K at 283 (hereinafter, "J. Guinan Dep.").)

About a month after the procedure, Plaintiff developed symptoms of a cold. (J. Guinan Dep. at 85.) Plaintiffs mother contacted Dr. Gidding about the symptoms and he advised that she and Plaintiffs father monitor Plaintiffs blood oxygen saturation. (Id. at 86-87.) Plaintiffs symptoms gradually became worse, requiring several trips to the hospital. (See generally id. at 90-121.) Plaintiff was eventually diagnosed with protein losing enteropathy ("PLE") and plastic bronchitis, both rare and potentially life-threatening conditions.

Dissatisfied with the responsiveness and general conduct of the doctors in the Nemours Cardiac Center, Plaintiffs parents started bringing her to the Pediatric Intensive Care Unit at the A.I. duPont Hospital, which is separate from the Nemours Cardiac Center. (See id. at 140-41.) In May 2003, Plaintiffs parents decided to transfer Plaintiff to the care of Dr. Jack Rychik, Dr. Thomas Spray, and Dr. Jonathan Rome at the Children's Hospital of Philadelphia ("CHOP"). (Id. at 150-52.) Plaintiffs PLE eventually dissipated, but her plastic bronchitis remained. (See id. at 169.)

Dr. Rychik determined that he would not remove the CP stent. Rather, he determined that the best course of treatment for Plaintiffs plastic bronchitis was to leave the CP stent in and fenestrate, or create a hole in, it. (See Doc. No. 25, Ex. 21 at 22 (hereinafter, "Rome Dep.") ("[T]he decision to fenestrate was based on the fact that we didn't identify other specific things to fix, if you will."); K. Guinan Dep. Vol. I at 186-87; J. Guinan Dep. at 160.) Fenestration is a known, although not widely agreed upon, procedure intended to lower pressure in the venous system and thereby alleviate PLE and plastic bronchitis, which sometimes accompany the increased venous pressure associated with Fontan physiology. (See Norwood Dep. at 64-66, 78-79; see also Cheatham Dep. at 64-65; Doc. No. 25, Ex. 22 at 54 (hereinafter, "Jacobs Dep.") ("[S]ome centers feel that fenestration is useful and they try to do it. Other centers feel that it's never useful.").) Although Dr. Rychik and Dr. Rome had limited experience dealing with the CP stent and general experience performing fenestrations and working with Gore-Tex, they came to the conclusion that the Gore-Tex material that covered the stent might close back up if it were fenestrated. (Rome Dep. at 33-35; J. Guinan Dep. at 164, 292.) They conveyed this concern to Plaintiffs parents, who elected to proceed with the fenestration with that knowledge. (J. Guinan Dep. at 164; Doc. No. 33, Ex. L Vol. II at 108 (hereinafter, "K. Guinan Dep. Vol. II").) Prior to the procedure, Dr. Rychik and Dr. Rome determined that Plaintiffs pulmonary artery was narrowing and needed a stent to hold it open. (Rome Dep. at 23.) Plaintiffs parents consented to having a second (non-CP) stent placed in the artery to address the narrowing. (J. Guinan Dep. at 158; K. Guinan Dep. Vol. I at 190-91.)

On December 17, 2004, Dr. Rychik used a catheter to fenestrate the CP stent and to implant a stent in Plaintiff's pulmonary artery. (J. Guinan Dep. at 169.) In February, 2006, Dr. Rychik and Dr. Rome discovered that the fenestration in Plaintiffs CP stent was only allowing a "relatively small amount of blood" to pass through' it. (Rome Dep. at 24.) Dr. Rychik suggested enlarging the fenestration in a procedure that would result in an extremely small stent sitting in the fenestration at a right angle to the CP stent. (Id. at 25.) Stents are sometimes used in the same way when cardiologists fenestrate surgically-completed Fontan physiology. (See id. at 34-35.) Plaintiffs parents agreed, and Dr. Rychik performed the procedure. (See K. Guinan Dep. Vol. II at 116-20; J. Guinan Dep. at 292-94.)

Plaintiff currently has three...