Havens v. Hoffman, 95-2

• Decision Date: 13 September 1995
• Docket Number: No. 95-2,95-2
• Citation: 902 P.2d 219
• Parties: Betty M. Peulen HAVENS, Appellant (Plaintiff), v. David D. HOFFMAN, M.D., Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 219

902 P.2d 219

Betty M. Peulen HAVENS, Appellant (Plaintiff), v. David D. HOFFMAN, M.D., Appellee (Defendant).

No. 95-2.

Supreme Court of Wyoming.

Sept. 13, 1995.

Dan Davis, Gillette, for appellant.

W. Thomas Sullins, II and Courtney R. Kepler of Brown & Drew, Casper, for appellee.

Before GOLDEN, C.J., and THOMAS, MACY, TAYLOR, and LEHMAN, JJ.

THOMAS, Justice.

The issue that is dispositive of this case is whether David D. Hoffman, M.D. (Dr. Hoffman) properly supported a motion for summary judgment in a case premised upon injury attributable to the lack of informed consent on the part of Betty M. Peulen Havens (Havens). Havens contends she met her burden in opposition to the motion for summary judgment by relying upon the doctrine of res ipsa loquitur. We hold that, had Dr. Hoffman properly supported his motion for summary judgment, Havens would be required to present expert testimony establishing the failure of Dr. Hoffman to furnish appropriate advice leading to Havens' consent. The doctrine of res ipsa loquitur cannot serve to overcome an appropriate showing that the standards of medical practice were met in furnishing advice to the patient in order to secure consent. We hold, however, that Dr. Hoffman failed to make the showing required by our decision in Roybal v. Bell, 778 P.2d 108 (Wyo.1989), to demonstrate there is no genuine issue of material fact. Havens had no obligation to produce expert testimony until Dr. Hoffman made such a showing. The Order Granting Second Motion for Summary Judgment of Defendant entered in favor of Dr. Hoffman must be reversed.

In the Appellant's Brief, Havens states the issue presented for review to be:

With regard to informed medical consent, may the doctrine of res ipsa loquitur be used to obviate the requirement of expert testimony?

In the Brief of Appellee David E. Hoffman, M.D., the issue presented for review is set forth as:

Whether the court below was correct in its decision granting the second summary judgment in favor of Appellee in the case based upon the dual findings that there is no genuine issue of material fact and that Appellee is entitled to judgment as a matter of law.

We apply our traditional approach to review of summary judgments, and we treat this motion for summary judgment as though it had been presented originally to this court. We pursue the examination of the case using the same materials and information made available to the trial court. Iberlin v. TCI Cablevision of Wyoming, Inc., 855 P.2d 716 (Wyo.1993); Moncrief v. Harvey, 816 P.2d 97 (Wyo.1991). Having done that, we hold the materials submitted by Dr. Hoffman in support of his Second Motion for Summary Judgment of Defendant do not meet the standard imposed for granting his motion for summary judgment and, further, do not create any obligation on the part of Havens to produce any expert testimony until Dr. Hoffman does satisfy the Roybal standard.

In August of 1991, Havens was referred to Dr. Hoffman for an evaluation of an epigastric mass and pain. It appeared she had developed an incisional hernia from prior abdominal surgery. Dr. Hoffman saw Havens again in January of 1992. That consultation related to a referral for a needed left thoracotomy and open lung biopsy. At that visit, it was decided between Havens and Dr. Hoffman that he would repair the ventral hernia and that procedure and the thoracotomy would be performed under the same anesthesia. The surgical procedures were performed a week later.

During the thoracotomy, one of Havens' ribs was broken, and the costal cartilage was torn away at the costochondral junction. This injury resulted in permanent and chronic pain. Such an injury is common in connection with this surgical procedure. It results from the utilization of a rib spreader and occurs because of the necessity for providing an opening large enough to provide access for the procedure. One expert witness opined such injuries occur in more than half the cases.

Havens originally claimed in her action against Dr. Hoffman that he was negligent in performing the surgical procedure. A Motion for Summary Judgment of Defendant as to the original complaint was granted because the record was clear there was no negligence on the part of Dr. Hoffman in connection with the surgical procedure. Havens conceded the absence of negligence in performing the surgical procedures, but she sought leave to amend her complaint. In the Amended Complaint, Havens claimed Dr. Hoffman violated his duty to warn her that breaking a rib and tearing of the cartilage could result as normal and usual complications of these procedures. She also contended he had violated his duty to advise of an alternative procedure that was less hazardous. Dr. Hoffman answered the Amended Complaint and then filed a Second Motion for Summary Judgment of Defendant.

In seeking summary judgment as to the Amended Complaint, Dr. Hoffman relied upon a form entitled Consent to Operation, Administration of Anesthetics and the Rendering of Other Medical Services prepared by the Riverton Memorial Hospital. Specific reliance is placed upon paragraph three in that form which says:

3. I confirm the following: That my physician has explained to me the nature, purpose, and possible consequences of the procedure(s) as well as the risks involved, and the possible complications and/or alternative methods of treatment. I understand that the explanation I have received is not exhaustive because of unforseen circumstances that may arise and I have been advised that a more detailed and complete explanation of the preceding matter will be given to me if I so desire. Upon reading the previous statement, I do not desire such further explanations. Furthermore, I acknowledge that I have received no guarantees or assurances as to the results that may be obtained from the performance of this operation or procedure.

In addition, Dr. Hoffman relied upon his office notes which include these sentences: "Procedures, findings, indications, risks, benefits and possible complications explained to pt's satisfaction. Pt gives her informed consent for both procedures scheduled on 1/28/92." This conclusional language is repeatedly relied upon by Dr. Hoffman in connection with his Second Motion for Summary Judgment of Defendant. In her affidavit, filed in support of her Response to Defendant's Motion for Summary Judgment, Havens stated:

Neither Dr. Hoffman, nor anyone else, told that breaking a rib and tearing the cartilage could result from normal and usual complications of the surgical procedures performed.

Neither Dr. Hoffman, nor anyone else, advised me that torn cartilage may result in chronic pain, debilitating pain.

The district court entered an Order Granting Second Motion for Summary Judgment of Defendant. While the rationale is not reflected in that order, Dr. Hoffman contended he had established compliance with the standard of medical practice by expert testimony. He also relied upon Roybal for the proposition that it was incumbent upon the plaintiff to establish departure from the standards of medical practice by expert testimony. Havens did not rely upon the presentation of any such expert testimony, but asserted she was entitled to avoid summary judgment based upon the doctrine of res ipsa loquitur flowing from a series of California cases. Havens appeals from the Order Granting Second Motion for Summary Judgment of Defendant.

Both Havens and Dr. Hoffman cite to Roybal in their briefs. Havens appears to be unaware of the comfort that Roybal affords her, and Dr. Hoffman prefers to emphasize those aspects of Roybal that...