Hoofnel v. Segal
RENDERED:
APRIL 30, 2004; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2003-CA-000412-MR
EVA N. HOOFNEL
APPELLANT
v.
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, JUDGE
ACTION NO. 01-CI-006321
JAMES SEGAL, M.D.;
SUSAN GALANDIUK, M.D.1
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: DYCHE AND JOHNSON, JUDGES; AND JOHN D. MILLER, SENIOR
JUDGE.2
MILLER, SENIOR JUDGE:
Eva N. Hoofnel has appealed from an order
of the Jefferson Circuit Court entered on October 22, 2002,
which granted the appellees’, James Segal, M.D. and Susan
Galandiuk, M.D., motions for summary judgment.3
We agree with
1 The notice of appeal filed in this case misspells this doctor’s name as
“Glandiuk”.
2 Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
3 The order was made final by the trial court’s order entered on January 28,
2003, which denied Hoofnel’s motion to vacate the trial court’s previous
order.
the circuit court that this matter presented no genuine issues
of material fact and that Drs. Segal and Galandiuk were entitled
to judgment as a matter of law. CR4 56. We therefore affirm.
During the latter part of 2000, Hoofnel underwent a
colonoscopy which revealed a lesion in her lower rectum.
Out of
concern that this lesion could become cancerous, Hoofnel
consulted Dr. Susan Galandiuk, a colorectal surgeon in
Louisville, Kentucky. On or around January 2, 2001, Hoofnel and
her husband met with Dr. Galandiuk in her office to discuss the
possibility of surgically removing the lesion.
At this office
visit, Dr. Galandiuk suggested that in addition to removing the
lesion, Hoofnel should also undergo an oophorectomy to remove
her ovaries and a hysterectomy to remove her uterus.5
Both Dr. Galandiuk and Hoofnel testified via
deposition that Hoofnel initially told Dr. Galandiuk that she
did not want her ovaries removed.
As for the proposed
hysterectomy, Hoofnel stated that she also informed Dr.
Galandiuk that she did not want to undergo that procedure
either. However, Dr. Galandiuk testified that after the January
2, 2001, meeting, it was her understanding that Hoofnel had
4 Kentucky Rules of Civil Procedure.
5 According to Dr. Galandiuk’s deposition testimony, if cancer is detected in
the colon, women face a higher risk of developing ovarian and/or uterine
cancer.
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consented to the removal of the lesion, a hysterectomy if
necessary, and an appendectomy.6
On January 5, 2001, Hoofnel signed a standard surgical
consent form at Norton Hospital in Louisville.
The handwritten
description of the planned procedures stated that Hoofnel was to
undergo an “anterior resection colon with appendectomy and
possible bilateral oophorectomy.”
The consent form also
contained standard language authorizing “additional procedures”
that may be “deemed necessary in [the attending physician’s]
professional judgment.” In addition, Dr. Galandiuk testified
that on January 17, 2001, the day of the surgery, Hoofnel told
her that she wanted Dr. Galandiuk to perform an oophorectomy and
a hysterectomy if she felt it was necessary.7
Carolyn Gowan, a
nurse anesthetist, also testified that when she asked Hoofnel to
describe the procedures she was about to undergo, Hoofnel told
her that she was having colon surgery, an appendectomy, and a
hysterectomy.
Hence, according to Dr. Galandiuk, just prior to
beginning surgery on Hoofnel, she believed that the signed
consent form, coupled with her previous discussions with
Hoofnel, authorized her to perform the colon surgery, an
appendectomy, a hysterectomy if necessary, and an oophorectomy.
6 Hoofnel does not dispute that she consented to the appendectomy.
7 A handwritten note by Dr. Galandiuk on one of Hoofnel’s medical charts
states that Hoofnel changed her mind and wanted her ovaries removed.
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However, Hoofnel denies that she ever consented to an
oophorectomy or a hysterectomy.
Dr. Galandiuk further testified that during the
surgery, she discovered that Hoofnel’s uterus was abnormally
large. Fearing that Hoofnel’s enlarged uterus could be
indicative of further problems, Dr. Galandiuk summoned Dr. James
Segal, an obstetrician/gynecologist, to the operating room.
According to Dr. Segal’s deposition testimony, he examined
Hoofnel’s uterus and concurred with Dr. Galandiuk’s opinion that
it was abnormally large.
Dr. Segal testified that he read Hoofnel’s consent
form and noticed that the form did not contain Hoofnel’s consent
to have a hysterectomy performed.
However, Dr. Segal stated
that both Dr. Galandiuk and Nurse Gowan told him that Hoofnel
had consented to a hysterectomy.
After unsuccessfully
attempting to locate a member of Hoofnel’s family to confirm her
alleged consent, Dr. Segal scrubbed-in and performed a
hysterectomy and oophorectomy, removing Hoofnel’s uterus and
ovaries.8
Following these procedures, the colon surgery and
appendectomy were also successfully completed.9
8 Dr. Segal testified that he relied upon the written consent form signed by
Hoofnel as the basis for his belief that Hoofnel had consented to the
oophorectomy.
9 It was later determined that the organs that had been removed were non-
cancerous.
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After the completion of the procedures, Dr. Segal
informed Hoofnel that her ovaries and uterus had been removed.
Hoofnel stated that upon hearing this news she became scared and
was in a state of disbelief.
Approximately nine months later, on September 14,
2001, Hoofnel filed a complaint in the Jefferson Circuit Court.
Hoofnel claimed that the hysterectomy and oophorectomy were
performed without her consent, and that as a result, Dr.
Galandiuk and Dr. Segal committed a “malicious, and intentional
assault, battery, and trespass upon her.” Hoofnel sought
damages for alleged permanent injuries, physical and mental
pain, a diminished relationship with her husband, and medical
expenses. In addition, Hoofnel sought punitive damages for the
alleged “malicious” conduct of Dr. Galandiuk and Dr. Segal.
On August 30, 2002, both Dr. Galandiuk and Dr. Segal
filed motions for summary judgment, arguing, inter alia, that
Hoofnel’s consent to the hysterectomy and oophorectomy
constituted a complete defense to her battery claim.
After
concluding as a matter of law that Hoofnel’s signed consent form
authorized the procedures performed by Dr. Galandiuk and Dr.
Segal, the trial court on October 22, 2002, granted the motions
for summary judgment.10
10 In addition, the trial court determined that Hoofnel’s assault and trespass
claims were essentially the same as a claim for battery under Kentucky law.
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On November 1, 2002, Hoofnel filed a motion to vacate
the trial court’s order granting summary judgment in favor of
Dr. Galandiuk and Dr. Segal.
Hoofnel argued that the signed
consent form did not, as a matter of law, constitute consent for
Dr. Galandiuk and Dr. Segal to perform the procedures in
question, and that the issue of consent was a factual question
to be determined from all of the circumstances.
According to
Hoofnel, this factual question was an issue for a jury to
decide, thereby precluding summary judgment in favor of Dr.
Galandiuk and Dr. Segal.
On January 28, 2003, the trial court denied Hoofnel’s
motion to vacate its previous order.
The trial court agreed
with Hoofnel that “consent is a process and not just a
document.” However, the trial court found that the lack of
consent issue was “inextricably woven together” with the concept
of informed consent. After noting that expert testimony is
generally required to negate informed consent, and that Hoofnel
concededly did not offer any such testimony, the trial court
ruled that summary judgment in favor of Dr. Galandiuk and Dr.
Segal was proper.
The trial court also found that the conduct
of Dr. Galandiuk and Dr. Segal “was not reckless or oppressive,”
Hoofnel did not challenge this determination in her motion to vacate and has
not raised this issue on appeal.
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thereby precluding any possible punitive damages.
This appeal
followed.
Summary judgment is only proper “where the movant
shows that the adverse party could not prevail under any
circumstances.”
Steelvest, Inc. v. Scansteel Service Center,
Inc., Ky., 807 S.W.2d 476, 480 (1991) (citing Paintsville
Hospital Co. v. Rose, Ky., 683 S.W.2d 255 (1985)).
The trial
court must view the record “in a light most favorable to the
party opposing the motion for summary judgment and all doubts
are to be resolved in his favor.”
Steelvest , 807 S.W.2d at 480
(citing Dossett v. New York Mining & Manufacturing Co., Ky., 451
S.W.2d 843 (1970)). However, “a party opposing a properly
supported summary judgment motion cannot defeat that motion
without presenting at least some affirmative evidence
demonstrating that there is a genuine issue of material fact
requiring trial.” Hubble v. Johnson , Ky., 841 S.W.2d 169, 171
(1992)(citing Steelvest, supra at 480).
This Court has
previously stated that “[t]he standard of review on appeal of a
summary judgment is whether the trial court correctly found that
there were no genuine issues as to any material fact and that
the moving party was entitled to judgment as a matter of law.
There is no requirement that the appellate court defer to the
trial court since factual findings are not at issue” [citations
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omitted].11
Scifres v. Kraft, Ky. App., 916 S.W.2d 779, 781
(1996).
Hoofnel contends that summary judgment in favor of Dr.
Galandiuk and Dr. Segal on her battery claim is not proper
because there exist genuine issues of material fact as to
whether she consented to the removal of her uterus and ovaries.
An action for battery may be pursued when a physician
performs an operation without the patient’s consent.
Tabor v.
Scobee, Ky., 254 S.W.2d 474 (1951).
“The absence of consent
must be proved as a necessary part of the plaintiff’s case.”
Vitale v. Henchey, Ky., 24 S.W.3d 651, 658 (2000).
Consent may
be express, implied, or presumed. Pugsley v. Privette, 263
S.E.2d 69, 74 (Va. 1980).
Rather than risk being led astray by the subtleties
and nuances urged by the parties, we are of the opinion that
this case is best reviewed if our focus is limited to the
undisputed facts. These facts, in our view, are dispositive.
Hoofnel is a 56 year-old post-menopausal patient who
was diagnosed as having a lesion in her lower rectum called a
giant rectal villous adenoma.
The undisputed medical testimony
is that this is a type of colon polyp which is very likely to
11 Scifres v. Kraft, Ky. App., 916 S.W.2d 779, 781 (1996).
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turn into cancer.12
Hoofnel’s colon tumor was located on the
front wall of her rectum directly adjacent to her uterus.
Hoofnel’s uterus was swollen to two times the size of a normal
uterus for a 56 year-old woman and had multiple fibroid tumors
visible on it. Upon viewing the swollen uterus, Dr. Galandiuk
was concerned that the organ may be cancerous.
Moreover, in
order to remove the colon polyp without complications, it was
necessary to remove the uterus. Under these circumstances, even
without the explicit consent provided for in the consent form,
it seems to us that no reasonable 56-year-old post-menopausal
patient would have refused consent to removal of the badly
swollen and potentially cancerous uterus, and that there was
implied, or presumed, consent to undertake the removal.
Further, Dr. Galandiuk testified to the effect that
the removal of the ovaries in a female patient with rectal
cancer is important because there is a 25% greater likelihood of
the patient dying from cancer if the ovaries are left in place.
In addition, the uterus, which Dr. Galandiuk was concerned was
infested with cancer, was in close proximity to the ovaries,
leading to the further concern that cancer could spread to the
ovaries.
Again, in light of the suspected cancer, under these
facts no reasonable patient would have refused consent to having
12 Hoofnel is a long-time smoker who had previously been diagnosed with lung
cancer. However, when the lung tumor was removed it was found to be
nonmalignant.
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her ovaries removed in consideration that such consent would
have been in her overwhelming best interest.
Again, under these
circumstances we believe that there was implied or presumed
consent to the removal of the ovaries.
Based upon the foregoing, under the circumstances of
this case, in addition to giving express consent to “perform
such additional procedures as are deemed necessary in their
professional judgment,” we also are of the opinion that Hoofnel
gave her implied consent to remove the potentially deadly uterus
and ovaries which were, it is conceded, of no utility and a
danger or a potential danger.
Our disposition is supported by
the exception to actual consent identified in Tabor v. Scobee,
Ky., 254 S.W.2d 474, 477 (1951).
In Tabor a surgeon was sued because in the course of
performing an appendectomy on the plaintiff, a minor 20 years of
age, he removed the patient’s fallopian tubes because the tubes
were in a diseased condition and, in the physician ’s judgment,
if the tubes were not removed the patient’s life and health
would be endangered. The surgeon did not obtain the consent of
the patient’s stepmother even though she was available at the
time. The Tabor opinion held that there was not implied consent
to remove the plaintiff’s fallopian tubes:
The evidence offered does not justify the
conclusion as a matter of law that there
existed an emergency of such immediate
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urgency as to justify the removal of the
tubes without the consent of the patient or
her stepmother.
The evidence indicated that
removal of the tubes probably would be
necessary soon, that their remaining in the
body in their swollen and infected condition
was dangerous, but it did not establish that
their removal was an emergency in the sense
that death would likely ensue immediately if
the tubes were not removed.
Moss v.
Rishworth, Tex.Com.App., 222 S.W. 225.
Although delay in their removal might have
proved harmful, even fatal, there still was
time to give the parent and the patient the
opportunity to weigh the fateful question.
Had she been operated upon originally for
the removal of her Fallopian tubes and the
surgeon also removed an inflamed appendix
without her consent during the operation, we
would be inclined to agree with the decision
of the New Jersey Court in Barnett v.
Bachrach, D.C.Mun.App., 34 A.2d 626, that
consent to the removal of the appendix was
implied, on the ground there given–that the
appendix was generally considered by
scientists to be of no utility and a danger
or potential danger.
At the time of the operation in this case Hoofnel was
56 years-old, post-menopausal, and the mother of three grown
children.
She was suspected of having a cancerous polyp on her
colon. The undisputed medical evidence is that Hoofnel ’s uterus
and ovaries were of no further utility.
It is apparent from the
appellees’ depositions that the presence and spread of cancer
was the predominate concern.
Let us suppose that the appellees
acted not as they did, and that the cancer concerns identified
by Drs. Galandiuk and Segal had reached fruition.
Would we
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instead now be reviewing the appellants ’ medical malpractice
lawsuit against the appellees’ for their failure to remove the
seeds of cancer?
“The law should encourage self-reliant surgeons to
whom patients may safely entrust their bodies, and not men who
may be tempted to shirk from duty for fear of a law suit.
The
law does not insist that a surgeon shall perform every operation
according to plans and specifications approved in advance by the
patient, and carefully tucked away in his office-safe for
courtroom purposes.” Barnett v. Bacharch , supra, 34 A.2d at
629. This is especially true when the issue is cancer.
Cancer, of course, is a most dreaded disease. It is
beyond cavil that proper treatment admits of no delay.
Under the “Catch-22” circumstances of this case, the
appellees were entitled to summary judgment.
For the foregoing reasons, the order of the Jefferson
Circuit Court is affirmed.
DYCHE, JUDGE, CONCURS IN RESULT.
JOHNSON, JUDGE, DISSENTS AND FILES SEPARATE OPINION.
JOHNSON, JUDGE DISSENTING: Since I believe that there
exists a genuine issue as to a material fact regarding whether
Hoofnel consented in fact to undergoing a hysterectomy and/or an
oophorectomy, I must respectfully dissent.
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The Majority Opinion states that “in light of the
suspected cancer” on and around the area of Hoofnel ’s uterus and
ovaries, “no reasonable patient would have refused consent to
having her ovaries removed in consideration that such consent
would have been in her overwhelming best interest. ” 13
However,
as I will explain, whether or not a reasonable person would have
consented to the procedures and whether or not the procedures
were in Hoofnel’s best interest are not the proper inquiries.
Rather, the appropriate standard is whether or not Hoofnel
consented in fact to undergoing the procedures at issue.
This,
in my opinion, involved questions of fact which necessarily
precluded the entry of summary judgment in favor of Dr.
Galandiuk and Dr. Segal.14
In Kovacs v. Freeman,15 our Supreme Court explained
that “valid consent to medical treatment is to be gleaned from
evidence of the circumstances and discussions surrounding the
consent process.” The Court went on to discuss some basic
principles regarding consent to medical treatment:
Fay A. Rozovsky’s legal treatise on
consent in medical settings provides a
starting point for discussion.
Consent to
Treatment (2d ed. 1990).
Rozovsky explains
the legal premise that consent depends not
only on the written consent document, but
13 Slip op. at 9-10.
14 Steelvest, 807 S.W.2d at 481.
15 Ky., 957 S.W.2d 251, 255 (1997).
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also on the actual discussion between
physician and patient:
Many people think of
consent to treatment as a
form.
Consent is equated in
their minds with the document
through which patients agree
to procedures their physician
believes are advisable or
necessary. Such a definition
is incorrect and misleading,
and in some instances can be
dangerous [citation omitted].
. . .
Consent is a process, not a
document. Authorization for
treatment is the culmination
of a discussion between a
patient and a health care
provider, the disclosure of
risk and benefit information,
the disclosure of reasonable
alternative forms of care,
and the posing of questions
and answers by both the
patient and the provider.
Once the patient has agreed
to a specific course of
treatment, the process is
over. . . .
The
documentation, the so-called
consent form, is not the
consent, for that lies
instead in the conclusion of
the discussion between the
patient and the physician.16
Furthermore, in Lewis v. Kenady,17 the Supreme Court
stated that even though the patient in Lewis had signed a
16 Id. at 254.
17 Ky., 894 S.W.2d 619, 620-22 (1994).
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written consent form authorizing a mastectomy, she was
nonetheless entitled to introduce evidence of an alleged oral
agreement which purportedly conditioned the performance of the
mastectomy upon a positive biopsy result.
Hence, in cases where actual consent is at issue,18 the
question is whether, under the totality of the circumstances,
that particular patient consented in fact to undergoing a
particular procedure. Whether or not the so-called “reasonable
person” in Hoofnel’s position would have consented is not the
relevant inquiry, since “[e]very human being of adult years and
sound mind has a right to determine what shall be done with his
own body[.]” 19
In the case at bar, as the Majority Opinion has noted,
there was conflicting evidence with respect to whether Hoofnel
consented in fact to undergoing a hysterectomy and/or an
oophorectomy. For example, Dr. Galandiuk testified that prior
to beginning Hoofnel’s surgery, she believed that Hoofnel had
18 This should not be confused with cases where the issue is whether or not a
patient has given her informed consent to having a particular procedure
performed. In informed consent cases, the question is whether or not a
physician has adequately disclosed the risks and/or hazards associated with
undergoing a certain procedure. An action brought on lack of informed
consent grounds brings negligence principles into play, which requires expert
testimony. However, an action for battery which alleges that a patient never
in fact consented to undergoing a particular procedure involves a question of
fact, i.e., did the patient in fact consent to the procedure? Expert
testimony is therefore not required when pursuing a battery claim. For a
discussion of these principles, see Vitale v. Henchey, Ky., 24 S.W.3d 651
(2000).
19 Tabor, 254 S.W.2d at 475.
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consented to undergoing colon surgery, an appendectomy, a
hysterectomy if necessary, and an oophorectomy.
However,
Hoofnel has steadfastly denied that she ever consented to
undergoing either a hysterectomy or an oophorectomy.
Therefore,
since there is conflicting evidence in the record regarding
whether Hoofnel consented in fact to the procedures in question,
summary judgment in favor of Dr. Galandiuk and Dr. Segal was
improper.
In addition, the Majority’s conclusion that the
removal of Hoofnel’s uterus and ovaries “would have been in her
overwhelming best interest” does not preclude Hoofnel from
bringing a claim for battery.
Absent an emergency situation in
which a patient’s consent to medical treatment may be implied, 20
if the patient has not consented in fact to the procedure at
issue, she may pursue a claim for battery even though the
procedure proved to be beneficial to her health.21
In the
instant case, Dr. Segal testified that the oophorectomy and
hysterectomy were not emergency procedures necessary to save
Hoofnel’s life, and there was no evidence presented to the
contrary.
Thus, since the doctrine of implied consent is not
20 Id. at 477 (1951)(stating the general rule that consent to medical
treatment must be obtained absent an emergency situation).
21 Vitale, 24 S.W.3d at 658, n.28 (citing Restatement (Second) of Torts § 15,
comment a, ill. 1 (1965)(stating that a physician’s removal of a wart,
although beneficial to the patient, constitutes a battery if it is done
without the consent of the patient).
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applicable, the factual question of whether Hoofnel consented to
undergoing a hysterectomy and/or an oophorectomy remains.
Accordingly, summary judgment in favor of Dr. Segal and Dr.
Galandiuk was improper.
Finally, the Majority relies upon the following
language from Tabor:
The evidence offered does not justify
the conclusion as a matter of law that there
existed an emergency of such immediate
urgency as to justify the removal of the
tubes without the consent of the patient or
her stepmother. The evidence indicated that
removal of the tubes probably would be
necessary soon, that their remaining in the
body in their swollen and infected condition
was dangerous, but it did not establish that
their removal was an emergency in the sense
that death would likely ensue immediately if
the tubes were not removed.
Although delay
in their removal might have proved harmful,
even fatal, there still was time to give the
parent and the patient the opportunity to
weigh the fateful question.
Had she been
operated upon originally for the removal of
her Fallopian tubes and the surgeon also
removed an inflamed appendix without her
consent during the operation, we would be
inclined to agree with the decision of the
New Jersey Court in Barnett v. Bachrach,
D.C.Mun.App., 34 A.2d 626, that consent to
the removal of the appendix was implied, on
the ground there given–that the appendix
was generally considered by scientists to be
of no utility and a danger or potential
danger [citation omitted].22
The Majority states that since “[t]he undisputed
medical evidence is that Hoofnel’s uterus and ovaries were of no
22 Tabor, 254 S.W.2d at 476-77.
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further utility[,]” 23 Dr. Galandiuk and Dr. Segal were justified
in using their best medical judgment to make the decision to
remove Hoofnel’s uterus and ovaries.
I disagree.
Dr. Segal testified that when post-menopausal women
undergo hysterectomies, some experience an increase in their sex
drive, some experience no change, and some experience a decrease
in sex drive. In addition, when asked whether an oophorectomy
would have an impact upon a post-menopausal woman’s sex drive,
Dr. Segal stated “nobody knows. ” Further, Hoofnel testified
that after her surgery, sex with her husband was “painful,” and
that she had lost some physical sensation in the area of her
genitals. Obviously, both of these factors had a negative
impact on Hoofnel’s sex life.
Hence, the overall utility of Hoofnel’s uterus and
ovaries was, in my opinion, a disputed question of fact.
Therefore, as was stated in Tabor, while the removal of
Hoofnel’s uterus and ovaries was probably inevitable, Dr.
Galandiuk and Dr. Segal were not faced with an emergency
situation in which the need to remove those organs was
immediate. Accordingly, “[a]lthough delay in their removal
might have proved harmful, even fatal, there still was time to
give [Hoofnel] the opportunity to weigh the fateful question.” 24
23 Slip Op. at 11.
24 Id. at 477.
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I would therefore reverse the trial court’s granting
of summary judgment in favor of Dr. Galandiuk and Dr. Segal, and
remand this matter for a jury trial on the issue of consent.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE, DR. SEGAL:
Jason Segeleon
Kevin C. Burke
Louisville, Kentucky
Gerald R. Toner
Louisville, Kentucky
BRIEF FOR APPELLEE, DR.
GALANDIUK:
Donald K. Brown, Jr.
Cathleen C. Palmer
Louisville, Kentucky
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