Wissell v. Fletcher Allen Health Care, Inc.

• Decision Date: 22 May 2014
• Docket Number: 232-2-12 Cncv
• Citation: 2014 Vt Super 0522 04
• Parties: HEATHER WISSELL, Individually, and as Administratrix for the Estate of Dylan M. Wissell Plaintiff v. FLETCHER ALLEN HEALTH CARE, INC. Defendant
• Court: Superior Court of Vermont

2014 Vt Super 0522 04

HEATHER WISSELL, Individually, and as Administratrix for the Estate of Dylan M. Wissell Plaintiff
v.
FLETCHER ALLEN HEALTH CARE, INC. Defendant

No. 232-2-12 Cncv

Superior Court of Vermont, Civil Division, Chittenden Unit

May 22, 2014

[The text of this Vermont trial court opinion is unofficial. It has been reformatted from the original. The accuracy of the text and the accompanying data included in the Vermont trial court opinion database is not guaranteed.]

DECISION AND ORDER ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

Brian J. Grearson Superior Court Judge

Plaintiff Heather Wissell brought a medical malpractice action against Defendant Fletcher Allen Health Care ("FAHC") after her son, Dylan Wissell, died as a result of complications from a surgical procedure. The sole remaining claim is based on lack of informed consent, pursuant to 12 V.S.A. § 1909. Plaintiff claims that Defendant failed to provide informed consent prior to the surgery under two separate provisions of the statute. Plaintiff alleges that Dr. Joseph Schmoker, who performed the surgery at FAHC, (1) failed to disclose the alternatives to the surgery and the reasonably foreseeable risks and benefits involved in a manner permitting Dylan to make a knowledgeable evaluation pursuant to 12 V.S.A. § 1909(a)(1); and (2) failed to provide a reasonable answer to a request for information pursuant to § 1909(d). Plaintiff is represented by Thomas Sherrer, Esq., and Defendant is represented by S. Crocker Bennett II, Esq. Defendant has moved for summary judgment pursuant to Vermont Rule of Civil Procedure 56. For the reasons stated below, Defendant's motion for summary judgment is denied.

STANDARD FOR SUMMARY JUDGMENT

In addressing a motion for summary judgment, the Court derives the undisputed facts from the parties' statements of fact under V.R.C.P. 56(c). Facts in the moving party's statement are deemed undisputed when supported by the record and not controverted by facts in the nonmoving party's statement. Boulton v. CLD Consulting Eng'rs, Inc., 2003 VT 72, ¶ 29, 175 Vt. 413 (quoting Richart v. Jackson, 171 Vt. 94, 97 (2000)).

Summary judgment under V.R.C.P. 56 is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Guiel v. Allstate Ins. Co., 170 Vt. 464, 467 (2000). "A fact is material when it affects the outcome of the suit under the governing law, and a dispute is genuine if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Howard Opera House Assocs. v. Urban Outfitters, 166 F.Supp.2d 917, 926 (D. Vt. 2001). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary

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judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining if there is a genuine issue as to any material fact, the Court "will accept as true the allegations made in opposition to the motion for summary judgment, so long as they are supported by affidavits or other evidentiary material." Robertson v. Mylan Labs., Inc., 2004 VT 15, ¶ 15, 176 Vt. 356, 36263. The Court will also "give the nonmoving party the benefit of all reasonable doubts and inferences." Fireman's Fund Ins. Co. v. CNA Ins. Co., 2004 VT 93, ¶ 8, 177 Vt. 215 (quoting Chamberlain v. Metro. Prop. &Cas. Ins. Co., 171 Vt. 513, 514 (2000) (mem.)). However, the nonmoving party may not "rely on bare allegations alone to meet the burden of demonstrating a disputed issue of fact." Webb v. Leclair, 2007 VT 65, ¶ 14, 182 Vt. 559 (mem.). Facts discussed herein are therefore deemed to be undisputed, except as noted or otherwise qualified.

FACTS

This action is brought by plaintiff Heather Wissell, Dylan's mother and personal representative. Plaintiff initially alleged two counts of negligence: (1) lack of informed consent pursuant to 12 V.S.A. § 1909; and (2) negligence in the performance of the surgery and/or postoperative treatment pursuant to 12 V.S.A. § 1908. Compl. 5-6 (filed Feb. 27, 2012); First Am. Compl. 5-6 (filed May 24, 2012). Plaintiff moved for voluntary dismissal of her § 1908 claim, which the Court granted on September 23, 2013. Hence, the only remaining claim is for medical malpractice based on lack of informed consent pursuant to § 1909.

In December 2009, Plaintiff's son Dylan Wissell was a 19 year old male who suffered from a heart defect, "aortic insufficiency with bicuspid aoritic valve." Pl.'s Stmt. of Disputed Mat. Facts ("PSMF") ¶ 1; Def.'s Stmt. of Undisputed Mat. Facts ("DSMF") ¶ 1. On February 16, 2010, Dylan underwent an aortic valve surgery known as the "Ross Procedure." DSMF ¶ 1. The procedure was performed by cardiothoracic surgeon Joseph Schmoker, M.D. at Fletcher Allen Hospital in Burlington, Vermont. DSMF ¶ 1. Dylan died on February 28, 2010 as a result of a surgery-related complication (bleeding along the pulmonary autograft suture line). DSMF ¶ 1.

During the period leading up to and during the surgery, Dylan was under the care and treatment of David Stifler, M.D., a general practitioner; Adam Kunin, M.D., a cardiologist; and Dr. Schmoker, a cardiothoracic surgeon. PSMF ¶ 1. Dylan was originally scheduled to undergo surgery in October 2009, but changed his mind and cancelled that surgery, apparently because he "did not feel . . . ready to undergo the procedure yet." PSMF ¶ 1; Letter from Dr. Kunin to Dr. Stifler with CC to Dr. Schmoker 1 (Dec. 16, 2009) (on file with Court as Ex. 1 to PSMF) (hereinafter "Letter from Dr. Kunin"). At that time, Dylan's condition remained "essentially asymptomatic," and future plans involved Dr. Kunin seeing him again in six months for further testing. PSMF ¶ 1; Letter from Dr. Kunin 1-2 (Ex. 1 to PSMF). Dr. Kunin's recommendation was that Dylan was indeed ready for surgery, but that the option of delaying the surgery was "certainly a viable second choice option" and not an "absolutely wrong strategy." PSMF ¶ 1; Letter from Dr. Kunin 2 (Ex. 1 to PSMF).

Dylan eventually elected to go ahead with the surgery, and he and his mother met with Dr. Schmoker for a preoperative visit on February 10, 2010. PSMF ¶ 2; Letter from Dr. Schmoker to Dr. Stifler with CC to Dr. Kunin (Feb. 10, 2010) (Ex. 2 to PSMF) (hereinafter "Letter from Dr. Schmoker"). Dylan remained very anxious about the procedure and asked for an

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increase in "clonazepam," which was declined by Dr. Schmoker. PSMF ¶ 2; Letter from Dr. Schmoker (Ex. 2 to PSMF). During this meeting, Dr. Schmoker discussed Dylan's surgical options with both Dylan and his mother. PSMF ¶ 2; Letter from Dr. Schmoker (Ex. 2 to PSMF). Dylan's mother (Plaintiff) was present with Dylan during his preoperative visits with Dr. Schmoker and did most of the talking with Dr. Schmoker. PSMF ¶ 5; DSMF ¶ 3. It was determined that a pulmonary autograft replacement of Dylan's aortic valve with placement of a pulmonary homograft in the pulmonary outflow tract (Ross Procedure) was the most likely option, and that the option of an aortic valve sparing root replacement was unlikely because of the severity of Dylan's bicuspid valve, but that this would need to be determined at the time of operation. Letter from Dr. Schmoker (Ex. 2 to PSMF).

Dr. Schmoker explained to Dylan and Plaintiff that the Ross Procedure presented a risk of major complications including bleeding, myocardial infarction, renal failure, and death, and that the risk of such major complications was one to two percent. DSMF ¶ 8; PSMF ¶ 2; Deposition of Joseph Schmoker 45-46 (Jan. 17, 2013) (on file with Court as Ex. C to DSMF); Deposition of Heather Wissell 115-16, 142 (May 15, 2013) (Ex. E to DSMF). Dr. Schmoker also told Dylan and Plaintiff that the risk presented by the surgical options other than the Ross Procedure (i.e., mechanical or bioprosthetic valve) was at most one percent. Deposition of Joseph Schmoker 46-47 (Ex. 8 to PSMF); PSMF ¶ 10. Dr. Schmoker testified in deposition that Dylan and his mother struggled with whether to have the surgical procedure and which surgical procedure to have. Deposition of Joseph Schmoker 47 (Ex. 8 to PSMF).

Plaintiff's liability expert, Dr. Paul Stelzer, testified that it would have been reasonable to quantify Dylan's risk of all major complications (fatal and non-fatal) as five percent, but not lower. DSMF ¶ 9; Deposition of Paul Stelzer 107-08 (Ex. B to DSMF). Dr. Stelzer indicated that one to two percent was an accurate mortality rate, but not an accurate quantification of all major fatal and non-fatal complications. DSMF ¶ 9; Deposition of Paul Stelzer 107-08 (Ex. B to DSMF).

Also during a preoperative visit, Plaintiff asked Dr. Schmoker about his experience with the Ross Procedure.^[1] Dr. Schmoker responded that he was "very experienced":

Q. Can you remember any questions that you asked Dr Schmoker

A. Yes.

Q. What did you ask him?

A. I asked him what his experience was doing the Ross procedure?

Q. What did he tell you?

A. Dr. Schmoker told me that he was very experienced in doing the Ross procedure and that we didn't need to worry about that.

Q. That's his exact language?

A. Yeah, exact.

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Deposition of Heather Wissell 112 (May 15, 2013) (on file with Court as Ex. E to DSMF).^[2]Neither Plaintiff nor Dylan asked any further questions as to the number of procedures Dr. Schmoker had performed, Dr. Schmoker's statistical success/complication rates, whether there were other surgeons more experienced than Dr. Schmoker in the procedure, and whether there were other regional medical facilities better equipped than Fletcher Allen to accommodate Ross Procedure patients. DSMF ¶¶ 4, 6.

At the time of Dylan's surgery, Dr. Schmoker had previously performed a total of nine Ross Procedures at Fletcher Allen since 2004, two of which had resulted in complications.^[3]PSMF ¶ 7; DSMF ¶ 5 n.1. One complication...