Marocchini v. Brown

• Docket Number: Civil Action 20-0356-CG-N
• Decision Date: 27 September 2021
• Parties: ROBIN MAROCCHINI, Plaintiff, v. ROBERT C. BROWN AND ROBERT C. BROWN, M.D., P.C., d/b/a BROWN, PEARSON & GUEPET GYBNECOLOGY AND UROGYNECOLOGY, Defendants.
• Court: U.S. District Court — Southern District of Alabama

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ROBIN MAROCCHINI, Plaintiff, v. ROBERT C. BROWN AND ROBERT C. BROWN, M.D., P.C., d/b/a BROWN, PEARSON & GUEPET GYBNECOLOGY AND UROGYNECOLOGY, Defendants.

Civil Action No. 20-0356-CG-N

United States District Court, S.D. Alabama, Southern Division

September 27, 2021

MEMORANDUM OPINION AND ORDER

CALLIE V. S. GRANADE, SENIOR UNITED STATES DISTRICT JUDGE.

This matter is before the court on Plaintiff's motion for partial summary judgment (Doc. 63), Defendant's opposition thereto (Doc. 68), and Plaintiff's reply (Doc 69). For the reasons explained below, the Court finds that Plaintiff's motion for partial summary judgment should be granted.

FACTS

Plaintiff Robin Marocchini, filed this action seeking compensatory and punitive damages arising from her medical treatment and care by Defendant Dr. Robert C. Brown in 2019. (Doc. 46). Plaintiff's claims center around her allegation that Dr Brown breached the standard of care owed to her by removing her ovaries and fallopian tubes against her wishes and without her consent. The Amended Complaint asserts four counts: (1) an Alabama Medical Liability Act claim (2) a negligence and wantonness claim, (3) a claim for assault and battery and trespass to person, and (4) a claim for loss of consortium. (Doc. 46).

In December 2018, Plaintiff experienced problems with urinary incontinence and vaginal prolapse and sought treatment from Dr. Morris Silver, a urogynecologist in Destin, Florida. (Doc. 67-2, PageID.608-09). Plaintiff and Dr. Silver discussed several different options to attempt to alleviate Plaintiff's issues. (Doc. 67-2, PageID.609). Based on discussions with Dr. Silver and research she did on her own Plaintiff decided to have a hysterectomy. (Id.). Dr. Silver also discussed with Plaintiff whether to remove her ovaries or to preserve them. (Doc. 67-2, PageID.609-10). Dr. Silver explained to her the risks and benefits of keeping her ovaries, including the risk of ovarian cancer which is low: statistically .1 percent according to Dr. Silver. (Doc. 63-11, PageID.454). Plaintiff's ovaries were not part of her prolapse problem and she decided, after much research, not to have them removed. (Doc. 67-2, PageID.610). On January 30, 2019, Dr. Silver performed a hysterectomy on Plaintiff and did not remove her ovaries, leaving them intact as Plaintiff wished. (Doc. 63-3, PageID.347). After the surgery, Plaintiff says the surgery seemed to work but several months later “it started to fail” and she “felt something coming down” similar to what she had felt before. (Doc. 67-2, PageID.610).

On October 15, 2019, Plaintiff went to see Dr. Brown for continuing problems with prolapse. (Doc. 63-3, PageID.332-34). Plaintiff alleges that at this initial visit she provided Dr. Brown with a copy of her prior medical records which included an operative report from her hysterectomy. Defendants do not admit to receiving the records at the initial visit, ^[1] but a copy of Plaintiff's operative report from her hysterectomy was contained in Defendant's records and Dr. Brown's notes from Plaintiff's visit state that he “[r]eviewed records brought to office by patient from surgery in 1/2019.” (Doc. 63-3, PageID.334, 347). The hysterectomy operative report states that a total vaginal hysterectomy with an anterior repair and posterior repair was performed and does not state that an oophorectomy (which is the removal of one or both ovaries) was performed. (Doc. 63-3, PageID.347). The hysterectomy operative report includes a detailed description of the removal of Plaintiff's cervix and uterus and does not mention the removal of ovaries or describe any procedures to remove ovaries. (Id.). Dr. Brown testified that he read the report and although it did not contain the word oophorectomy anywhere in the report, Dr. Brown believed Plaintiff's ovaries had been removed. (Doc. 63-4, PageID.359-60). Dr. Brown testified that he did not ask Plaintiff about her ovaries because “99-plus percent of patients” who are over 50 and menopausal have their ovaries removed when they have a hysterectomy. (Doc. 63-4, PageID.356). According to Dr. Brown, Plaintiff may not have even known what was removed during the surgery, including whether her ovaries had been removed. (Doc. 63-4, PageID.355).

During the initial visit, Dr. Brown completed an exam and discussed with Plaintiff her options: specifically, to do nothing, to try a pessary, or to have sacrocolpopexy surgery to implant mesh. (Doc. 63-3, PageID.334). Dr. Brown then scheduled sacrocolpopexy surgery to implant mesh. (Doc. 63-3, PageID.334; Doc. 63-4, PageID.373-75). The removal of Plaintiff's ovaries was not discussed. Plaintiff gave her consent for the sacrocolpopexy surgery. (Doc. 63-4, PageID.375).

Plaintiff had a pre-operative appointment on November 5, 2019. (Doc. 67-2, PageID.613). During the pre-op appointment, Plaintiff signed a surgical consent form which stated that she “voluntarily request Dr. Robert C. Brown and his/her associates to treat my condition as deemed necessary.” The consent form specified that her “proposed treatment is: Robot Assisted Sacrocolpopexy and possible posterior repair and any other indicated procedures.” (Doc. 67-3, PageID.646; Doc. 67-2, PageID.629). The surgical consent form also stated:

I understand that my physician may discover other or different conditions which may require additional or different procedures than those planned. I authorize my physician and my associates to perform such other procedures which are advisable in their professional judgment.

(Doc. 67-3, PageID.646).

At the pre-op appointment Plaintiff also signed a “record of consent” form which includes the following:

1. I Robin Marocchini authorize and direct Dr. Robert Brown and/or such assistants as may be selected by him to the performance of the following procedure: Robot assisted sacrocolpopexy, and any other indicated procedures, possible posterior repair which involves: “a sacrocolpopexy”

2. It has been explained to me that during the course of the operation or procedure unforeseen conditions may be revealed that necessitate an extension of the original procedure (s) or different procedure (s) than those set forth in Paragraph One. I therefore authorize and request that the above-named physician, his assistants or his designees perform such procedures, including blood transfusion as are necessary and desirable in the exercise of his professional judgment.

(Doc. 67-4, PageID.648).

Dr. Brown performed the surgery on November 11, 2019. (Doc. 67-2, PageID.613). Dr. Brown talked with Plaintiff and her husband before the surgery and discussed what she was having done. (Doc. 67-2, PageID.13; Doc. 67-5, PageID.652). Plaintiff was then taken to surgery and her husband went to the waiting room. (Doc. 67-5, PageID.652). During the surgery Dr. Brown found that Plaintiff still had her ovaries, and he stopped the surgery. (Doc. 63-4, PageID.359; Doc. 67-1, PageID.560). Dr. Brown asked the nurse to contact Plaintiff's husband and Dr. Brown then spoke to her husband on the phone. (Doc. 67-1, PageID.560). Dr. Brown reports that his conversation with Plaintiff's husband was as follows:

I called him and said “Mr. Marocchini, I have gotten in here. I see that your wife has ovaries. Did you realize that she still has ovaries?” And he said, “No. I thought they were removed at the time of her hysterectomy.” And I said, “Well, what do you think that she would want? What would be her wishes if - as far as the surgery, whether she want - do you think she wants to keep her ovaries or doesn't?” And he told me that he thought she would want them removed. He said, “what do you think?” And I said, “Well, she's over 50. She's probably needs to start on hormone - or needs to discuss hormone replacement therapy. It's up - you know, whatever you think.” And I said “You know, she has ovaries in place. What do you think?” And he said, “I think I would want - she would want them removed.” ... I said, “We can leave them or we can remove them. If we remove them, that gets rid of her or decreases significantly her risk of ovarian cancer.” (Doc. 67-1, PageID.560-61). The phone call lasted 77 seconds. (Doc. 63-5, PageID.381). The Court notes that Plaintiff's husband has a different account of his telephone conversation with Dr. Brown, but for purposes of this summary judgment motion, the Court will view the facts in the light most positive to the non-moving parties and will assume Dr. Brown's account is accurate.

Plaintiff's husband did not have, and has never had, a general or healthcare power of attorney for Plaintiff. (Doc. 63-7, PageID.397). According to Plaintiff's husband, outside of an emergency, he had no authority to make healthcare decisions for Plaintiff. (Id.).

Dr Brown testified that the ovaries did not have to be removed but, in his opinion, it was in her best interest for her ovaries to be removed, and his consultation with Plaintiff's husband confirmed Dr. Brown's plan. (Doc. 67-1, PageID.556-57). According to Dr. Brown, there was no requirement that he remove the ovaries but there was “a need” to remove them to decrease the 1.2 percent chance that she had of getting ovarian cancer. (Doc. 67-1, PageID.557). Dr. Brown did not know if Plaintiff was menopausal but testified that looking at her ovaries during the surgery, they appeared to be perimenopausal or menopausal because they had atrophied some. (Doc. 67-1, PageID.564). Dr. Brown testified that Plaintiff's ovaries also had some postoperative adhesions from her prior surgery. (Doc. 67-1, PageID.559). Dr. Brown testified that using his professional judgment and the information he had gathered, including his discussion with Plaintiff's husband, Dr Brown removed Plaintiff's ovaries. (Doc. 67-1, PageID.556). According to...