HomeMy WebLinkAbout97-6325 CivilSUSAN M. YOUNG and
JAMES C. YOUNG,
Plaintiffs
V.
JAMES A. YATES, M.D.
and PLASTIC SURGERY
CENTER, LTD.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No. 97-6325 CIVIL TERM
IN RE: MOTION OF DEFENDANTS, JAMES A. YATES, M.D. AND
PLASTIC SURGERY CENTER, LTD., FOR SUMMARY JUDGMENT
BEFORE HOFFER, P.J., OLER AND GUIDO, JJ.
ORDER OF COURT
AND NOW, this ~ I~'ay of April, 2001, upon consideration of Defendants' motion
for summary judgment and the briefs submitted, and for the reasons stated in the
accompanying opinion, Defendants' motion is sustained in part and denied in part:
1. Summary Judgment is granted in favor of Defendants and against Plaintiffs
with respect to Count I (Professional Negligence) of Plaintiffs' complaint.
2. Defendants' motion for summary judgment with respect to Count II (Battery)
and Count III (Breach of Warranty) is denied.
BY THE COURT,
Luther E. Milspaw, Jr., Esq.
Milspaw & Beshore
130 State Street
P.O. Box 946
Harrisburg, PA 17108-0946
Attorney for Plaintiffs
tWesley Oler,
Michael M. Badowski, Esq.
Margolis Edelstein
3510 Trindle Road
Camp Hill, PA 17011
Attorney for Defendants
SUSAN M. YOUNG and :
JAMES C. YOUNG, :
Plaintiffs :
Vo
JAMES A. YATES, M.D.
'and PLASTIC SURGERY
CENTER, LTD.,
Defendants
IN THE COURT OF COMMON PLEAS OF
CUMBERLAND COUNTY, PENNSYLVANIA
CIVIL ACTION - LAW
No. 97-6325 CIVIL TERM
IN RE: MOTION OF DEFENDANTS, JAMES A. YATES, M.D. AND
PLASTIC SURGERY CENTER, LTD., FOR SUMMARY JUDGMENT
BEFORE HOFFER, P.J., OLER AND GUIDO, JJ.
OPINION AND ORDER OF COURT
OLER, J., April 9, 2001.
This medical malpractice action commenced on November 14, 1997. Plaintiffs'
complaint was filed on January 30, 1998. For disposition at this time is Defendants'
motion for summary judgment.~ Defendants' motion contends that Plaintiffs have failed
to demonstrate (1) professional negligence on behalf of Defendant Yates in the
performance of breast reduction surgery on Plaintiff Susan Young (hereinafter
"Plaintiff"), (2) battery due to lack of informed consent, and (3) breach of warranty.2
Another basis for Defendants' motion is that Plaintiffs' claims for negligence and lack of
informed consent are barred by the statute of limitations.3
The record, for purposes of disposition of Defendants' motion, includes the
following: depositions of Plaintiff Susan Young4 and Defendant James A. Yates, M.D.;5
two letters from Defendant Yates to George P. Branscum, Jr., M.D., Plaintiff's family
I Motion of Defendants, James A. Yates, M.D. and Plastic Surgery Center, Ltd., for Summary Judgment,
filed October 6, 2000 (hereinafter Defendants' Motion for Summary Judgment),
2Id.
3 Id, para. 37.
4 Deposition of Susan M. Young, filed January 9, 2001 (hereinafter Young Deposition).
5 Deposition of James A. Yates, M.D., filed December 6, 2000 (hereinafter Yates Deposition).
physician, dated April 21, 1994, and August 29, 1995;6 medical records7 and notess of
Defendant Yates pertaining to Plaintiff's surgeries; three consent forms allegedly signed
by Plaintiff;9 two letters from Plaintiff to her insurance company, dated May 27, 1994,
and July 13, 1994;~° and pre- and post-operative photographs of Plaintiff's breasts. ~l
Based upon the evidence in the record, and for the reasons stated in this opinion,
Defendants' motion for summary judgment will be granted with respect to count !
(Professional Negligence) and denied with respect to counts II (Battery) and III (Breach
of Warranty) of Plaintiffs' complaint.
STATEMENT OF FACTS
With respect to a motion for summary judgment, Pennsylvania Rule of Civil
Procedure 1035.2 provides:
After the relevant pleadings are closed, but within such time
as not to unreasonably delay trial, any party may move for
summary judgment in whole or in part as a matter of law
(1)
whenever there is no genuine issue of any material
fact as to a necessary element of the cause of
action or defense which could be established by
additional discovery or expert report, or
(2)
if, after the completion of discovery relevant to the
motion, including the production of expert reports,
an adverse party who will bear the burden of proof
at trial has failed to produce evidence of facts
essential to the cause of action or defense which in
6 See Attachments to Plaintiffs' Response to Defendants; Motion for Summary Judgment, filed December
1, 2000 (hereinafter Plaintiffs' Response).
7 Exhibits 1, 2, 8, and 10, Yates Deposition; Exhibits G and J, Defendants' Motion for Summary
Judgment.
8 Exhibit 1, Yates Deposition.
9 Exhibit 3, Young Deposition (dated March 1, 1995); Exhibit 9, Yates Deposition (dated October 12,
1995); Exhibit K, Defendants' Motion for Summary Judgment (dated October 12, 1995).
l0 Exhibits 1 and 2, Young Deposition.
~ Exhibits A, B, and C, Plaintiffs' Complaint, filed January 30, 1998; Exhibits 4 and 6-A, Yates
Deposition.
2
a jury trial would require the issues to be submitted
to a jury.
Furthermore, "[t]he record must be viewed in the light most favorable to the
opposing party, and all doubts as to the existence of a genuine issue of material fact must
be resolved against the moving party." Dean v. Commonwealth, 561 Pa. 503, 507, 751
A.2d 1130, 1132 (2000).
Factual summary. In 1997, Plaintiffs initiated this medical malpractice action
against Defendants, James Yates, M.D., and his employer, Plastic Surgery Center Ltd., as
well as against Holy Spirit Hospital.~2 The action against Holy Spirit Hospital has since
been discontinued.~3 The action arises out of two surgeries performed by Defendant
Yates, a bilateral reduction mammoplasty (breast reduction), which occurred on March
23, 1995, and reconstructive surgery to Plaintiff's right breast, which occurred on
November 16, 1995, at Holy Spirit Hospital, Camp Hill, Cumberland County,
Pennsylvania. Viewed in the light most favorable to Plaintiffs, the evidence at this time
may be summarized as follows:
In April of 1994, Plaintiff Susan Young sought the advice of Defendant James A.
Yates, M.D., with respect to potential breast reduction surgery, which she had been
contemplating for some time.TM On April 21, 1994, Defendant sent a letter to George P.
Branscum, Jr., M.D., Plaintiff's family physician, which stated that, in regard to
Plaintiff's potential surgery, "I believe ... a reasonably good outcome can be obtained.'ds
On March 1, 1995, prior to the initial procedure, Plaintiff signed a consent form.~6
The consent contained a sentence that provided, "I am aware that no guarantee or
~2 See Plaintiff's Complaint; Answer and New Matter of Defendants, James A. Yates, M.D., and Plastic
Surgery Center, Ltd., to Plaintiffs' Complaint, filed April 27, 1998 (hereinafter Defendants' Answer to
Plaintiffs' Complaint).
~3 Order of Court, dated June 18, 1998.
~4 Young Deposition at 15, 18, 23.
~5 See Attachment to Plaintiffs' Response.
~6 Young Deposition at 39; See Exhibit 3, Young Deposition.
assurance as to the results of the operation have been made and I have been told that no
guarantee of results could be made.''17
On March 23, 1995, Defendant performed breast reduction surgery on Plaintiff.~s
In the months following the surgery, Plaintiff suffered numerous complications from the
surgery, which resulted in the loss of her right nipple and, in Plaintiff words, the "loss of
my right breast.''~9 In August of 1995, Defendant recommended to Plaintiff the
reconstruction of her right breast?
On August 29, 1995, Defendant sent another letter to Dr. Branscum for approval
of Plaintiff's pending reconstructive surgery. In the letter, Defendant stated, "[t]his is not
a difficult procedure for her ... and she should do quite well with it.''2~
On October 12, 1995, prior to the second surgery, Plaintiff allegedly22 signed two
consent forms.23 Both consent forms authorized the performance of "reconstruction right
areola and nipple.''24 The consent form of Plastic Surgery Center, Ltd., contained a clause
which stated, '2 authorize the operating surgeon to perform any other procedures which
he may deem necessary in attempting to improve the condition for which I am being
treated or any unforeseen condition that he may encounter during the operation.''25
Another clause stated, "I am aware that no guarantee or assurance as to the results of the
operation have been made and I have been told that no guarantee of results could be
~7 See Exhibit 3, Young Deposition.
18 See Exhibit 2, Yates Deposition.
19 Young Deposition at 38.
2o See Exhibit 1, Yates Deposition.
2~ See Exhibit 11, Yates Deposition.
22 Plaintiff has admitted to signing the consent form of Plastic Surgery Center, Ltd. See Defendants'
Motion for Summary Judgment, para. 28; Plaintiffs' Amended Response to Defendants' Motion for
Summary Judgment, para. 28, filed December 6, 2000 (hereinafter Plaintiffs' Amended Response).
However, it does not appear in the record that Plaintiff has identified the signature on the consent form
utilized by Holy Spirit Hospital as hers.
23 See Exhibit 9, Yates Deposition (consent form for Holy Spirit Hospital); See Exhibit K, Defendants'
Motion for Summary Judgment (consent form for Plastic Surgery Center, Ltd.).
24 See Id.
25 Exhibit K, Defendants' Motion for Summary Judgment..
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made.''26 The consent form of Holy Spirit Hospital contained a clause that provided "I
consent to the performance of such operation(s) and procedure(s) in addition to or
different from those now contemplated, whether or not arising from presently unforeseen
conditions, which the above named doctor or his associates or assistants may consider
necessary or advisable during the course of the operation.''27 Another clause stated, "I
realize that there is no certainty as to the results of the operation(s) or procedure(s).''2s
On November 16, 1995, Defendant performed reconstructive surgery on Plaintiffs'
right breast? During the procedure, Defendant not only performed reconstructive
surgery on Plaintiff's right breast, but also performed scar revision on Plaintiff's left
breast, to which Plaintiff alleges she did not consent?
Count I of Plaintiffs' complaint alleges that Defendant performed both procedures
in a negligent manner. Count II alleges that Defendant committed a battery on Plaintiff
by failing to obtain her informed consent to the second procedure. Plaintiff alleges that
she consented only to reconstructive surgery on her right breast, and that any scar
revision done to the left breast was not authorized and therefore constituted a battery.
Count III of Plaintiffs' complaint alleges that Defendant breached certain express
warranties, oral and written, which he made to Plaintiff regarding the outcome of the
surgeries. Plaintiff alleges that the letters written by Defendant to Dr. Branscum dated
April 21, 1994, and August 29, 1995, constituted a special contract in writing which
Defendant breached. In their answer and new matter, Defendants raise the statute of
limitations as an affirmative defense.3~
26 Id.
27 Exhibit 9, Yates Deposition.
28 Id.
29 See Exhibit 8, Yates Deposition.
3o See Exhibits 1 and 8, Yates Deposition.
3~ Defendants' Answer to Plaintiffs' Complaint, para. 46.
Procedural history. On September 7, 1999, Defendants' attorney sent a letter to
Plaintiffs' counsel requesting expert discovery? A follow-up letter was sent on May 8,
2000.33 Defendants thereafter filed a motion to compel, and a rule was issued.34 On July
17, 2000, through a letter and proposed order, Plaintiffs' counsel responded to the rule
with a stipulation agreed upon by counsel? The court entered the following order:
AND NOW, this 18th day of July, 2000, upon
consideration of the Motion to Compel Discovery of Defendants,
James A. Yates, M.D., and Plastic Surgery Center, Ltd., IT IS
HEREBY ORDERED that Plaintiffs provide full and complete
answers to the expert discovery [sic] on or before August 31,
2000. In the event Plaintiffs fail to comply with this Order,
Plaintiffs will suffer appropriate sanctions, including, without
limitation, the preclusion at trial of any evidence concerning
matters covered [sic] the expert testimony as to the alleged
negligence of Defendants, James A. Yates, M.D., and Plastic
Surgery Center, Ltd., and such other sanctions the Court deems
appropriate. This order is entered pursuant to an agreement of
counsel, as indicated in the attached letter.36
On September 8, 2000, due to Defendants' failure to comply with the order dated
July 18, 2000, the following order was entered:
AND NOW, this 8th day of September, 2000, in accordance
with the agreement of counsel referenced in this Court's Order of
July 18, 2000, and as further reflected by the attached letters and
proposed Order from Plaintiffs' counsel, it appearing that
Plaintiffs have not provided full and complete answers to
Defendants' expert discovery, IT IS HEREBY ORDERED that
Plaintiffs are precluded from introducing any expert evidence at
the trial of this case as to the alleged negligence of Defendants,
James A. Yates, M.D., and Plastic Surgery Center, Ltd. Again,
this Order is being entered in accordance with the agreement of
32 See Exhibit C, Defendants' Motion for Summary Judgment.
33 See Exhibit D, Defendants' Motion for Summary Judgment.
34 Motion to Compel Discovery of Defendants, James A. Yates, M.D., and Plastic Surgery Center, Ltd.,
filed June 21, 2000; Order of Court, dated June 26, 2000.
3s See Attachment to Order of Court, dated July 18, 2000.
36 See Order of Court, dated July 18, 2000.
6
counsel referenced in this Court's Orde, r of July T18 and as
indicated in the attached letter of Plaintiffs attorney.3
DISCUSSION
Professional negligence. Pennsylvania law generally requires expert medical
testimony in medical negligence cases. Grabowski v. Quigley, 454 Pa. Super. 27, 36, 684
A.2d 610, 615 (1996). With respect to Plaintiffs' professional negligence claim, Plaintiffs
are in the position of having been precluded from introducing expert testimony at trial?
Consequently, Defendants' motion for summary judgment with respect to Plaintiffs'
professional negligence claim will be granted. 39
Informed consent. There are two types of informed consent cases. The first is
grounded on the inadequacy of advice to the patient as to the risks of or alternatives to the
procedure, while the second is grounded on the lack of assent to the procedure itself.
Montgomery v. Bazaz-Sehgal, 742 A.2d 1125, 1131 (Pa. Super. Ct. 1999), appeal
granted, 563 Pa. 689, 760 A.2d 855 (2000). In the case sub judice, Plaintiffs' claim is
grounded in lack of consent to the procedure itself.
Expert testimony is generally required in an informed consent claim grounded
upon inadequate advice as to the risks of or alternatives to the procedure in order to
establish to establish the risks and alternatives of a procedure and to establish a causal
relationship between the injury suffered and the undisclosed risk. Cosom v. Marcotte,
760 A.2d 886, 890 (Pa. Super. Ct. 2000). On the other hand, expert medical testimony is
generally not necessary in a case grounded upon lack of assent to the procedure itself.
Montgomery, 742 A.2d. 1125, 1130. Consequently, the court is not in a position to grant
Defendants' motion for summary judgment as to Plaintiff's informed consent claim due
to a lack of expert testimony.
Because Plaintiffs' informed consent claim is not barred by the absence of expert
testimony, the court must address the issue of whether Defendants' motion should be
37 See Order of Court, dated September 8, 2000.
38 Id.
39 See Plaintiffs' Brief in Opposition to Defendants' Motion for Summary Judgment, at 1-2.
7
granted on the alternative ground that Plaintiff did in fact assent to the procedures
performed on her left breast during the second surgery on November 16, 1995. Summary
judgment may not be granted if, when the evidence is viewed in the light most favorable
to Plaintiff, a question of material fact remains. The evidence may be summarized as
follows:
On October 12, 1995, Plaintiff admittedly signed a consent form provided by
Plastic Surgery Center, Ltd., and ostensibly signed a consent form provided by Holy
Spirit Hospital. Plaintiff contends her written consent was limited to further operation on
her right breast, i.e. "reconstruction right areola and nipple." She contends that she did
not consent to any further procedure on her left breast. Defendants' argue that Plaintiff's
written consent established that she was fully informed with respect to the risks
associated with the procedure. This argument, however, would be probative only with
respect to an informed consent claim grounded upon inadequate advice as to the risks of
or alternatives to the procedure, and is, therefore, not probative with respect to Plaintiff's
claim of lack of assent to the procedure itself.
Nevertheless, it appears that certain provisions of the written consents might
arguably have authorized Defendant Yates to go beyond the initial scope of the surgery,
i.e. "reconstruction right areola and nipple." Thus, the court is of the view that a genuine
issue of material fact exists as to whether Plaintiff, in signing the consent form(s),
authorized only the procedure on the right breast or whether certain provisions authorized
Defendant to go beyond the area originally contemplated. Consequently, Defendants'
motion for summary judgment on the issue of informed consent will be denied.
Breach of warranty. Section 606 of the Health Care Services Malpractice Act
(HCSMA) provides that, "[i]n the absence of a special contract in writing, a health care
provider is neither a warrantor nor a guarantor of a cure.''4° The Superior Court has
consistently reiterated the importance of the requirement that such a contract be in
writing. See, e.g., Flora v. Moses, 727 A.2d 596, 599 (Pa. Super. Ct.), appeal denied,
40 Act of October 15, 1975, P.L. 390, § 606, 40 P.S. § 1301.606 (1999) (emphasis added).
8
559 Pa. 718, 740 A.2d 1147 (1999); Edwards v. Germantown Hospital, 736 A.2d 612,
616 (Pa. Super. Ct. 1999).
Plaintiffs allege that certain oral as well as written statements made by Defendant
constituted a warranty. Clearly, under section 606 of the HCSMA, any oral statements
made by Defendant, as a matter of law, did not constitute a warranty. However, the issue
remains whether Defendant's written statements, that "a reasonably good outcome can be
obtained" and that "[t]his is not a difficult procedure ... and she should do quite well with
it," contained in letters to PlaintifFs family physician, constituted a "special contract in
writing" upon which liability of Defendant could be premised for breach of warranty. The
Superior Court has stated that, if evidence is in conflict as to whether parties intended that
a particular writing should constitute an enforceable contract, it is a question of fact for
the jury as to whether a contract existed. In re Estate of Hall, 731 A.2d 617, 621 (Pa.
Super. Ct. 1999), appeal denied, 561 Pa. 697, 751 A.2d 191 (2000). Defendants' motion
for summary judgment on the issue of breach of warranty will be denied for this reason.
Statute of limitations. Defendants' also argue that Plaintiffs' claims for
professional negligence and lack of informed consent should be deemed time-barred
under the two-year statute of limitations.4~ The court need not address Plaintiffs'
argument with respect to professional negligence because that claim, as discussed, will be
dismissed on another ground, i.e., lack of expert testimony.
With respect to the statute of limitations for Plaintiffs' informed consent claim, it
appears that the claim was filed within a two-year period. PlaintifFs second surgery was
conducted on November 16, 1995. It was on this date that the alleged battery, which gave
rise to Plaintiffs' informed consent claim, occurred. Plaintiffs filed a praecipe for a writ
of summons on November 14, 1997, less than two years after the date of the second
surgery.
41 See Defendants' Motion for Summary Judgment, para. 37.
9
For the foregoing reasons, the following Order will be entered:
ORDER OF COURT
AND NOW, this 9th day of April, 2001, upon consideration of Defendants' motion
for summary judgment and the briefs submitted, and for the reasons stated in the
accompanying opinion, Defendants' motion is sustained in part and denied in part:
1. Summary Judgment is granted in favor of Defendants and against Plaintiffs
with respect to Count I (Professional Negligence) of Plaintiffs' complaint.
2. Defendants' motiOn for summary judgment with respect to Count II (Battery)
and Count III (Breach of Warranty) is denied.
BY THE COURT,
Luther E. Milspaw, Jr., Esq.
Milspaw & Beshore
130 State Street
P.O. Box 946
Harrisburg, PA 17108-0946
Attorney for Plaintiffs
Michael M. Badowski, Esq.
Margolis Edelstein
3510 Trindle Road
Camp Hill, PA 17011
Attorney for Defendants
/.s/J. Wesley Oler, Jr.
J. Wesley Oler, Jr., J.
10