Lozoya v. Anderson

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

JOAN G. LOZOYA,

vs.

Plaintiff,

ERIC J. ANDERSON, LINDSY BLAKE,
HOSPITAL CORPORATION OF
AMERICA, INC., MOUNTAIN VIEW
HOSPITAL, FREEMONT EMERGENCY
SERVICE INC., ALEXANDRA E. PAGE,
KAISER FOUNDATION HEALTH PLAN,
INC., and KAISER PERMANENTE,
Defendants.

CASE NO. 07cv2148-IEG-WMc
ORDER:
(1) GRANTING IN PART AND
DENYING IN PART
DEFENDANTS HOSPITAL
CORPORATION OF AMERICA,
INC. AND MOUNTAIN VIEW
HOSPITAL’S MOTION TO
DISMISS; and

(2) GRANTING PLAINTIFF
LEAVE TO AMEND.
(Doc. No. 15.)

Presently before the Court is a motion to dismiss filed by defendants Hospital Corporation of
America, Inc., and Mountain View Hospital (hereinafter “defendants”). For the following reasons,
the Court GRANTS IN PART and DENIES IN PART the motion, and GRANTS plaintiff leave to
amend.
Factual Background
The following facts are taken from plaintiff’s complaint. On November 8, 2006, plaintiff Joan
Lozoya fell and suffered a serious shoulder fracture. Plaintiff was seventy-four years old at the time.

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She went to Mountain View Hospital in Clark County, Nevada, for medical attention. Doctors
Anderson and Blake informed plaintiff she had a severe fracture of her right shoulder. They put her
arm in a sling and provided medication for the pain. Plaintiff requested to see an orthopedic specialist
or to be transferred to a larger hospital for orthopedic surgery. Defendants refused these requests and
discharged her, recommending she seek treatment when she returned to her home in San Diego. On
November 11, 2006, she sought treatment in San Diego in the emergency department of Kaiser
Permanente. On November 12, 2006, Dr. Page performed surgery on her arm. Plaintiff alleges
medical malpractice by the hospitals and doctors in both Nevada and California, and claims Mountain
View Hospital’s refusal to treat her violated federal law. Plaintiff suffered and continues to suffer
from pain, emotional distress, impaired enjoyment, and loss of use of her arm.
Procedural Background
Plaintiff filed her initial complaint on November 8, 2007, and a first amended complaint on
January 4, 2008. (Doc. Nos. 1 & 3.) On March 4, 2008, the Court granted plaintiff’s motion for
extension of time to serve summonses and the complaint on the defendants. On April 14, 2008,
defendants Anderson and Fremont Emergency Service, Inc. filed a motion to dismiss the federal claim
against them. (Doc. No. 12.) On May 28, 2008, the parties filed a stipulation to dismiss the federal
claim against those defendants. (Doc. No. 26.) The Court granted this motion on May 28, 2008.
(Doc. No. 27.)
Hospital Corporation and Mountain View Hospital also filed a motion to dismiss on April 14,
2008. (Doc. No. 15.) On May 16, 2008, plaintiff filed an opposition to defendants’ motion. (Doc.
No. 21.) On May 23, 2008, defendants filed a reply. (Doc. No. 23.) The Court heard oral argument
on the motion on June 2, 2008. Kyle Cruse appeared on behalf of defendants Hospital Corporation
of America, Inc., and Mountain View Hospital. Frank J. Lozoya, IV appeared by telephone on behalf
of plaintiff Joan G. Lozoya.
Legal Standard
A motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests
the legal sufficiency of the claims asserted in the complaint. Fed. R. Civ. Proc. 12(b)(6); Navarro v.
Block, 250 F.3d 729, 731 (9th Cir. 2001). The Court may dismiss a complaint for failure to state a

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claim when “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim
which would entitle him to relief.” Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Navarro, 250 F.3d
at 732 (citing Conley). In other words, a Rule 12(b)(6) dismissal is proper only where there is either
a “lack of a cognizable legal theory” or “the absence of sufficient facts alleged under a cognizable
legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir. 1988).
In deciding a motion to dismiss for failure to state a claim, the court’s review is generally
limited to the contents of the complaint. Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir.
1996); Allarcom Pay Television, Ltd. v. Gen. Instrument Corp., 69 F.3d 381, 385 (9th Cir. 1995). The
court must accept all factual allegations pled in the complaint as true, and must construe them and
draw all reasonable inferences from them in favor of the nonmoving party. Cahill v. Liberty Mut. Ins.
Co., 80 F.3d 336, 337-38 (9th Cir. 1996); Mier v. Owens, 57 F.3d 747, 750 (9th Cir. 1995) (citing
Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). In spite of the deference the court
is bound to pay to the plaintiff’s allegations, it is not proper for the court to assume that “the [plaintiff]
can prove facts which [he or she] has not alleged.” Associated Gen. Contractors of Cal., Inc. v. Cal.
State Council of Carpenters, 459 U.S. 519, 526 (1983). Furthermore, the court is not required to credit
conclusory legal allegations cast in the form of factual allegations, “unwarranted deductions of fact,
or unreasonable inferences.” Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001);
W. Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir. 1981).
Motion to Dismiss
Defendants Hospital Corporation and Mountain View Hospital argue the Court should dismiss
all claims against them.
A.
Emergency Medical Treatment and Labor Act Claim
Defendants argue plaintiff has not pleaded a violation of the federal Emergency Medical
Treatment and Labor Act (hereinafter “EMTALA”). EMTALA established several requirements for
hospitals which participate in the federal Medicare program. First, EMTALA provides that hospitals
with emergency rooms must “provide for an appropriate medical screening examination within the
capability of the hospital’s emergency department . . . to determine whether or not an emergency

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medical condition . . . exists.” 42 U.S.C. § 1395dd(a).1 If the hospital discovers an emergency
medical condition, it must provide “such further medical examination and such treatment as may be
required to stabilize the medical condition” or transfer the individual. Id. § 1395dd(b). “To stabilize”
means:

to provide such medical treatment of the condition as may be necessary to assure,
within reasonable medical probability, that no material deterioration of the condition
is likely to result from or occur during the transfer [or discharge] of the individual from
a facility.
Id. § 1395dd(e)(3)(A); 42 C.F.R. § 489.24(b) (same).
Decisions interpreting EMTALA have emphasized it does not create a federal malpractice
standard or a cause of action for medical malpractice in federal court. Rather, EMTALA only imposes
the duty to screen for emergency conditions and to “stabilize” such conditions if they are discovered.
Eberhardt v. City of Los Angeles, 62 F.3d 1253, 1258 (9th Cir. 1995). The Ninth Circuit has also
noted the function of EMTALA is to prevent hospitals from “dumping” patients who are uninsured
and unable to pay for their emergency care. Id.; see also Jackson v. E. Bay Hosp., 246 F.3d 1248,
1254 (9th Cir. 2001). However, the statute has no requirement that the patient be a member of the
class the statute is designed to protect in order to bring a claim. See 42 U.S.C. § 1395dd; Jackson, 246
F.3d at 1256 (not including patient’s uninsured status in explanation of test for violation of
EMTALA).
In this case, the parties agree the hospital adequately screened plaintiff and determined she had
an emergency medical condition. Plaintiff argues the doctors then violated EMTALA by failing to
stabilize her and treat her with the proper standard of care. Insofar as plaintiff’s complaint alleges
defendants improperly treated her, she has only stated a state medical malpractice claim rather than
a federal EMTALA claim. (See, e.g., FAC ¶ 34.) However, plaintiff’s claim that the doctors did not

1“Emergency medical condition” is defined as “a medical condition manifesting itself by acute
symptoms of sufficient severity (including severe pain) such that the absence of immediate medical
attention could reasonably be expected to result in . . . serious jeopardy,” to the patient’s health,
“serious impairment to bodily functions,” or “serious dysfunction of any bodily organ or part.” 42
U.S.C. § 1395dd(e)(1)(A); 42 C.F.R. § 489.24(b) (same).

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stabilize her emergency medical condition is a cognizable claim under EMTALA.2 See 42 U.S.C. §
1395dd(b) (requiring hospital to provide “such further medical examination and such treatment as may
be required to stabilize the medical condition”); § 1395dd(e)(3)(A) (defining “to stabilize”).
Defendants argue that accepting the truth of plaintiff’s factual allegations, defendants
appropriately stabilized her emergency condition by giving her a sling and medication for the pain.
Plaintiff argues stabilizing her condition required an “orthopedic consult and open reduction surgery
given the significant probability of this type of injury disrupting the vascular supply to the proximal
humerus along with systemic displacement.” (Plaintiff’s Opposition to the Motion at 7-8.)
On a motion to dismiss, without any factual development, it is premature to decide whether
the sling and painkillers constituted the treatment “necessary to assure within reasonable medical
probability, that no material deterioration of the condition is likely to result from or occur during the
transfer [or discharge] of the individual from a facility.” 42 U.S.C. § 1395dd(e)(3)(A). Accordingly,
the motion to dismiss this claim is denied.
B.
State Law Medical Malpractice Claims
Plaintiff’s state claims are medical malpractice claims arising under Nevada law.3 Defendants
argue plaintiff’s malpractice claims do not comply with Section 41A.071 of the Nevada Revised
Statutes, which provides:
If an action for medical malpractice or dental malpractice is filed in the district court,
the district court shall dismiss the action, without prejudice, if the action is filed
without an affidavit, supporting the allegations contained in the action, submitted by
a medical expert who practices or has practiced in an area that is substantially similar
to the type of practice engaged in at the time of the alleged malpractice.
Nev. Rev. Stat. 41A.071. Because plaintiff filed her malpractice claims without including a medical
expert affidavit, defendants argue those claims must be dismissed pursuant to Nevada law.
Plaintiff argues in opposition that the medical expert affidavit requirement does not apply in

2At oral argument, defendants’ counsel argued the complaint does not allege defendants failed
to stabilize plaintiff’s condition. Defendants focus on the language of the first amended complaint that
defendants refused “to treat Plaintiff” and “fail[ed] to provide necessary and proper medical care.”
(FAC ¶¶ 33-34.) But the complaint does allege defendants “refus[ed] and fail[ed] to properly stabilize
Plaintiff’s emergency injuries.” (Id. ¶ 33.) This is a sufficient allegation under Rule 8 of the Federal
Rules of Civil Procedure.

3The parties agree Nevada law concerning medical malpractice applies to the Nevada
defendants.

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federal court. Plaintiff cites the Erie decision and a case in the Northern District of Georgia in which
the court declined to apply state law. Baird v. Celis, 41 F. Supp. 2d 1358 (N.D. Ga. 1999) (citing Erie
R. R. Co. v. Tompkins, 304 U.S. 64 (1938)). In Baird, the court held a medical malpractice affidavit
requirement is procedural and conflicts with Rule 8 of the Federal Rules of Civil Procedure.
Accordingly, it declined to apply the expert affidavit requirement. Id. at 1361-62. In response,
defendants cite a Third Circuit Court of Appeals decision holding New Jersey’s requirement of an
affidavit of merit in medical malpractice cases is substantive. Chamberlain v. Giampapa, 210 F.3d
154, 161 (3d Cir. 2000).
Analysis
Where state law claims are brought in federal court based on diversity jurisdiction or pursuant
to supplemental jurisdiction, the court must choose whether to apply state or federal law. Under
Hanna v. Plumer, 380 U.S. 460, 470-74 (1965), the court first inquires whether a state law directly
collides with federal law. If there is no direct collision, the court follows Erie and applies state law
on substantive issues and federal law on procedural issues. Id. If there is a direct collision, federal
law applies. Id. In considering the substantive/procedural distinction, the Court is guided by “the twin
aims of the Erie rule: discouragement of forum-shopping and avoidance of inequitable administration
of the laws.” Id. at 468.
Each federal court to consider Nevada’s medical expert affidavit requirement has held
plaintiffs must comply with that requirement. Jones v. Neiven, No. 07-1088 JCM, 2008 WL 2074003
at *4 (D. Nev. May 14, 2008) (applying Nevada law and dismissing claim without prejudice, without
considering whether the state law applies in federal court); Estes v. So. Nev. Adult Mental Health, No.
04-0149 RLH, 2007 WL 1199343 (D. Nev. Apr. 19, 2007) (same); Butts v. Univ. Health Svcs., Inc.,
No. 05-1434 PMP, 2006 WL 1877127 (D. Nev. July 6, 2006) (briefly considering issue and then
applying state law). While none of these decisions discussed the choice of law issues in detail, the
application of state law in those cases implicitly found the affidavit requirement (1) does not collide
with federal law; and (2) is a substantive state law, applicable in federal court.
These decisions are also consistent with those of other district courts considering special state
requirements in medical malpractice actions. In Washington state, plaintiffs must also file an expert’s

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certificate of the merit of a medical malpractice claim. Federal district courts interpreting this
provision have uniformly held it applies in federal court. See Gobin v. Dept. of the Army W. Regional
Command Madigan Army Med. Ctr., No. C07-5677-RBL, 2008 WL 828944 (W.D. Wash. Mar. 27,
2008); Abear v. Teveliet, No. 06-5550 RBL, 2006 WL 3813560 at *3 (W.D. Wash. Dec. 21, 2006).
Similarly, under California law, a plaintiff must provide notice to the doctor-defendant 90 days before
bringing a medical malpractice claim. Courts considering the rule have found it applies in federal
court. See Rosado v. Alameida, 497 F. Supp. 2d 1179, 1195 (S.D. Cal. 2007) (applying state law and
finding amendment would not be futile because failure to comply with the requirement did not
“invalidate” the proceedings under California law, but rather provides cause to discipline the “errant
attorney”); Jett v. Penner, No. 02-2036 GEB, 2007 WL 715533 at *1 (E.D. Cal. Mar. 8, 2007) (same).4
In a Ninth Circuit Court of Appeals case interpreting an older version of Nevada’s medical
malpractice statute, the court concluded the state’s evidentiary rule regarding admissibility of the
findings of a malpractice screening panel applied in federal court because it was a core component of
Nevada’s substantive scheme. Wray v. Gregory, 61 F.3d 1414, 1418 (9th Cir. 1995).
The medical expert affidavit requirement of Nev. Rev. Stat. § 41A.071 is similar to the other
special malpractice requirements found substantive by federal courts in the Ninth Circuit. Allowing
Nevada medical malpractice claims to proceed in federal court without an affidavit is likely to result
in forum shopping, because a frivolous case will proceed without expert scrutiny in federal court.
Moreover, the Nevada rule represents a substantive judgment that medical malpractice claims must
be supported by expert testimony. See, e.g., Nev. Rev. Stat. § 41A.100. Accordingly, the requirement
applies in federal court and plaintiff’s state law malpractice claims must be dismissed for failure to
provide the required affidavit.
Leave to Amend
Finally, the Court considers whether to grant plaintiff leave to amend and file the required
medical expert affidavit. Under Nevada law, a malpractice complaint filed without the affidavit is a
legal nullity and thus may not be amended. Washoe Med. Ctr. v. Second Jud. Dist. Ct., 148 P.3d 790,

4See also Hill v. U.S., 751 F. Supp. 909, 910 (D. Colo. 1990) (finding the certificate of review
requirement in medical malpractice actions under Colorado law substantive).

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795 (Nev. 2006). Defendants argue the Court must follow Nevada law and dismiss without leave to
amend. Defendants also argue a new complaint may not be filed with an appropriate affidavit
because, in their view, the statute of limitations has expired.5
Under federal law, leave to amend “shall be freely given when justice so requires.” Fed. R.
Civ. P. 15. Leave to amend is granted with “extreme liberality.” Morongo Band of Mission Indians
v. Rose, 893 F.2d 1074, 1079 (9th Cir. 1990). “There are several accepted reasons why leave to
amend should not be granted, including the presence of bad faith on the part of the [party seeking to
amend], undue delay, prejudice to the [party opposing amendment], futility of amendment, and that
the party has previously amended the relevant pleading.” Advanced Cardiovascular Sys., Inc. v.
SciMed Life Sys., Inc., 989 F. Supp. 1237, 1241 (N.D. Cal. 1997).
The first question under Erie and Hanna is whether these rules are in direct conflict. See
Hanna, 380 U.S. at 470-74. In this case, if the Court applied the rule articulated by the Nevada
Supreme Court in Washoe Medical Center, plaintiff’s malpractice claims would automatically be
dismissed without leave to amend. If the Court applied Rule 15, it would only deny leave to amend
upon a showing of prejudice, futility, undue delay or bad faith. As none of those circumstances are
present and a proper affidavit would cure the defect of the pleading, the Court would grant leave to
amend pursuant to Rule 15. Accordingly, the rules directly conflict.
Where federal and state law directly conflict, the Court applies federal law on procedural
matters. Hanna, 380 U.S. at 70-74. The propriety of amendment is a procedural matter. The court’s
analysis in Burrows v. Redbud Cmty. Hosp. Dist., 188 F.R.D. 356 (N.D. Cal. 1997) is instructive. In
Burrows, the court considered California’s law that any amendments to a complaint adding a claim
for exemplary damages must be made within two years of filing the malpractice action. The court
found this rule procedural because it “was essentially a method of managing or directing a plaintiff’s
pleadings rather than a determination of substantive rights.” Id. at 361 (citing Jackson v. E. Bay
Hosp., 980 F. Supp. 1341, 1352 (N.D. Cal. 1997)).
Similarly, the Nevada rule prohibiting amendment of a complaint filed without a medical

5At oral argument, the parties agreed this issue will not arise unless the Court dismisses
without leave to amend and plaintiff re-files the action at this time.

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expert affidavit is procedural because it relates to the “managing or directing of a plaintiff’s
pleadings.” Id. Accordingly, the Court applies Rule 15 of the Federal Rules of Civil Procedure. As
previously noted, no reason exists for denying leave to amend at this early stage of the case.
CONCLUSION
For the foregoing reasons, the Court DENIES defendants’ motion to dismiss as to
plaintiff’s claim that defendants violated EMTALA by failing to stabilize plaintiff’s emergency
medical condition. The Court GRANTS defendants’ motion to dismiss as to plaintiff’s medical
malpractice claims against defendants for failure to include a medical expert affidavit. The Court
GRANTS plaintiff leave to amend the complaint to provide the required affidavit within thirty
days of the date of this Order.

DATED: June 17, 2008

IRMA E. GONZALEZ, Chief Judge
United States District Court

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Lurie v. Mid-Atlantic Permanente Med. Group, P.C. (Summary)

DISRUPTIVE PHYSICIAN

Lurie v. Mid-Atlantic Permanente Med. Group, P.C., No. 06-01386 (RCL) (D.D.C. May 31, 2011)

The United States District Court for the District of Columbia declined to reconsider its ruling in favor of a physician group that had fired a disruptive doctor. The doctor sued the physician group for wrongful discharge, breach of contract, and employment discrimination. According to reports from his supervising physician, the doctor had engaged in “a crescendo of abusive behavior.” The doctor claimed that he was simply voicing his concerns about the quality of care at the hospital where he was stationed. In response to the doctor’s disruptive behavior, the physician group took progressive steps to ameliorate the situation, including placing the doctor on a performance improvement plan and transferring him to another hospital in Maryland. When the behavior continued after several transfers, however, the group terminated his contract. The district court initially found in favor of the physician group. In particular, the court dismissed the wrongful discharge claim because the doctor had not based it upon a clear public policy discussed in a constitution, statute, or regulation. Immediately afterward, the doctor claimed a new Maryland case had changed the law in his favor and asked the court to reconsider its ruling. The district court declined to reconsider, stating that the new Maryland case did not affect its ruling because the issues had all occurred at D.C. hospitals. Similarly, the court declined to hear the doctor’s new claim under Maryland’s Health Care Worker Whistleblower Protection Act, stating that it did not apply and that creating a similar remedy in D.C. was within the scope of the legislature, not the courts.

 

 

Lownsbury v. VanBuren,

Lownsbury v. VanBuren
C.A. No.#19365 (Ohio App. 9 Dist., August 2, 2000)

Plaintiffs appealed from a judgment of the Court of Common Pleas granting summary judgment
in favor of defendant physician. Plaintiffs sued the physician alleging that he
was responsible for injuries caused when plaintiff gave birth to a severely
brain damaged child, because he failed to supervise residents on duty and ensure
that the requisite prenatal care was provided to the birth mother. The defendant
physician moved for summary judgment alleging that, because he did not treat,
evaluate, consult, or even know of the mother’s hospital visit, he therefore
did not owe a duty to her or to the child because a physician-patient
relationship had never been established. The Court of Appeals of Ohio, Ninth
District, affirmed the judgment of the Court of Common Pleas holding that
reasonable minds could not have found that the defendant physician owed a duty
to the birth mother or her child. It affirmed the grant of summary judgment in
favor of defendant physician.

Lucas v. The Methodist Hosps.

UNPUBLISHED ORDER
Not to be cited per Circuit Rule 53

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 3, 2006*
Decided May 4, 2006

Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. FRANK H. EASTERBROOK, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge

No. 05-4032

LISA A. LUCAS,
Plaintiff-Appellant,

v.

THE METHODIST HOSPITALS, INC.,

Defendant-Appellee.

Appeal
the United
from
States District Court for the
Northern District of Indi-
ana, Hammond Division.

No. 2:04-CV-188
Rudy Lozano, Judge.

Order

Lisa Lucas contends that her former employer violated the Americans with Dis-
abilities Act when it did not find a new position for her after a reorganization abol-
ished her old job. The district court granted summary judgment for the employer
after concluding that the record would not permit a reasonable factfinder to infer
that Lucas is disabled within the ADA’s meaning.

Lucas worked as a registered nurse at Methodist Hospital from 1990 through
2003. During that time she suffered six injuries (two on the job, four in automobiles)
that reduced her ability to bend, kneel, climb ladders, or lift heavy weights. These
limitations did not stop Lucas from performing her job as a nurse. But in September

* After an examination of the briefs and the record, we have concluded that oral argument is un-
necessary, and the appeal is submitted on the briefs and the record . See Fed . R. App . P. 34(a) ; Cir. R .
34(f).

No. 05-4032

Page 2

2003 the Hospital closed the department in which she had been working and told all
of its employees that they would be laid off unless they found positions in other de-
partments. Lucas applied for a job as a “care coordinator.” During an interview, one
of the Hospital’s managers asked Lucas about her physical limitations and, when
told what they are, remarked: “Well, I don’t know if I can accommodate those re-
strictions.” This comment forms the basis of Lucas’s contention that the Hospital
engaged in disability discrimination when it did not hire her for this position.

On appeal Lucas does not contend that she is unable to perform any particular
“major life activity.” Her four-page brief is short on specifics and omits the narrative
and argument required of appellate litigants, making it hard to determine just
where she contends the district judge went wrong. See Fed. R. App. 28(a); Circuit
Rule 28(a), (c). We could have deemed all arguments forfeited but have endeavored
to understand those to which the brief alludes.

Lucas maintains that the Hospital gave her a pass to use parking spaces re-
served for disabled employees, which might show that it regarded her as disabled—
one of the three statutory ways to qualify, see 42 U.S.C. §12102(2)—but no evidence
to this effect is in the record. (Lucas blames her lawyer, but the acts of counsel in
civil litigation are imputed to the client and do not justify a second opportunity to
proceed against the original adversary. Pioneer Investment Services Co. v. Bruns-
wick Associates Limited Partnership, 507 U.S. 380, 396–97 (1993). The remedy for
any deficient performance is malpractice litigation against the lawyer.) She also
contends that the Social Security Administration’s award of disability benefits
proves her status as “disabled” under the ADA, but that decision too is not in the
record (it was made after the district court entered final judgment) and would not
be conclusive if it were, for the standards under the ADA and the Social Security
Act differ. See Cleveland v. Policy Management Systems Corp., 526 U.S. 795 (1999).

We may assume that the supervisor’s comments during the interview for the
care-coordinator position show that the Hospital regarded Lucas as physically un-
able to do that job even with accommodations. Still, inability to perform one job does
not show either actual disability or the regarded-as variant. See Toyota Motor, Inc.
v. Williams, 534 U.S. 184 (2002). Methodist Hospital obviously did not deem Lucas
unable to perform all jobs; it had employed her for many years after her accidents.
Proof that she was unable (actually, or so regarded in error) to perform a particular
job does not bring a person within the statute, as Toyota and other decisions hold.
Many people with back problems continue working, as Lucas herself did until 2003.
Lucas has not demonstrated that she is unable to perform any major life activity,
such as caring for herself or performing manual tasks in general. Summary judg-
ment therefore was appropriate.

AFFIRMED

Lynn G. v. Hugo

Lynn G., et
al., Plaintiffs-Respondents, v. Norman Hugo,
M.D., Defendant-Appellant. 135 Supreme Court,
Appellate Division, First Department, New York Decided on June
27, 2000
Ernst H. Rosenberger, J.P., Milton L. Williams, Betty Weinberg Ellerin, Richard
W. Wallach, David B. Saxe, JJ.
Defendant appeals from an order of the Supreme Court, New York County (Stanley
Sklar, J.), entered July 1, 1999, which, inter alia, denied his motion for
summary judgment dismissing the complaint.
APPEARANCES OF COUNSEL
Morton Povman, of counsel (Morton Povman, P.C., attorney) for plaintiffs-
respondents,

Richard Paul Stone, of counsel (Frederick N. Gaffney and Cathy A. Gallagher, on
the brief, Costello, Shea & Gaffney, LLP, attorneys) for defendant-
appellant.

MAJORITY OPINION

ROSENBERGER, J.P.
Plaintiff Lynn G. brought the instant malpractice action against her former
plastic surgeon, Dr. Norman Hugo, based upon two abdominal plastic surgeries
performed by Dr. Hugo in February and November 1993. On February 9, 1993, Dr.
Hugo performed a liposuction of the abdomen, flanks, thighs and knees, and a
bilateral mastopexy, followed by an inner thigh liposuction and a full
abdominoplasty on November 9, 1993. Prior to these operations, Mrs. G had had
nearly 50 professional visits with Dr. Hugo, and had undergone a wide range of
elective procedures, including eyelid surgery, facial liposuctions, removal of
skin growths, wrinkle removal and tattoos on her eyebrows.
After the November 1993 procedure, Mrs. G expressed dissatisfaction with the
appearance of her abdomen, claiming that there was unsightly scarring. She
brought this action alleging medical malpractice based on a failure to obtain
informed consent. First, she alleged that Dr. Hugo failed to advise her of less
invasive alternatives to a full abdominoplasty, particularly since she had
already had significant liposuction in that area just a few months previously.
Second, she alleged that she was incapable of giving informed consent because
she had Body Dysmorphic Disorder, which is the clinical name for a
disproportionate preoccupation with minor or imaginary physical flaws. Between
1986 and 1990, Mrs. G had been under the care of a psychiatrist, Dr. Freiman,
for depression. Dr. Hugo was aware that Mrs. G had been taking Elavil and Prozac
while being treated by Dr. Freiman. Mrs. G claimed that her psychiatric history,
combined with her unusually high demand for surgical correction of slight or
imagined defects, should have alerted Dr. Hugo to the presence of a mental
disorder that fueled her demand for unnecessary surgery and prevented her from
assessing the risks and benefits of such surgery. At the very least, she
contended, he should have consulted with a mental health professional before
performing another invasive procedure on her.
The IAS court properly denied defendant’s motion for summary judgment, as there
exist triable issues concerning plaintiff’s alleged lack of informed consent to
the abdominal cosmetic surgery performed in February and November 1993. First,
the record reveals a factual dispute over whether Dr. Hugo departed from good
medical practice by not advising Mrs. G of less invasive alternatives to the
abdominoplasties he performed (see, Andreach by Andreach v Mount Sinai Med.
Ctr., 253 AD2d 397). Public Health Law ?2805-d(1) states:
Lack of informed consent means the failure of the person providing the
professional treatment or diagnosis to disclose to the patient such alternatives
thereto and the reasonably foreseeable risks and benefits involved as a
reasonable . . . practitioner under similar circumstances would have disclosed,
in a manner permitting the patient to make a knowledgeable evaluation.
Dr. Hugo admitted that after Mrs. G was dissatisfied with the February 1993
surgery, he never discussed any options other than a mini or full abdominoplasty
for the November 1993 operation. This is confirmed by Mrs. G’s deposition
testimony. However, the affidavit from Mrs. G’s plastic surgery expert opines
that Dr. Hugo should have suggested a suction-assisted lipectomy as a less
invasive alternative. This itself is sufficient to raise a triable issue (see,
Andersen v Delaney, 2000 NY App Div LEXIS 1319; Lowery v Hise, 202 AD2d 948,
949).
The dissent emphasizes that Dr. Hugo did not pressure Mrs. G into any course of
action, but lack of informed consent can also be predicated on the doctor’s
failure to disclose a complete range of options (Eppel v Fredericks, 203 AD2d
152).
A patient cannot accurately assess the risks and benefits of a procedure if she
mistakenly believes that the only alternative is inaction. The benefits to be
derived from the procedure may appear greater, or the risks more worthwhile,
than they would appear if she knew that there was a way to achieve a similar
benefit with less risk.
Nothing in Public Health Law ?2805-d(1), nor in the case law applying the statute,
suggests that elective cosmetic surgery is subject to a less stringent
disclosure standard (see, Pan v Shaw, 203 AD2d 195; Bellier v Bazan, 124
Misc 2d 1055). Though the patient’s identification of the problem (e.g., a
sagging stomach) may be motivated by subjective vanity rather than objective
physical impairment, once the patient has decided that this feature is a problem
that needs to be corrected, the doctor should have no less of a duty to disclose
the risks of any treatment he could offer. In other words, while the patient’s
dissatisfaction with her body may be a matter of taste, the choice of treatments
and the expected outcomes are governed by objective medical principles.
Disclosure of less invasive alternatives is merely one aspect of the doctor’s
general duty to present a full picture of the risks and benefits.
With respect to the "combination" of liposuction and abdominoplasty,
the dissent reads "combination" to be synonymous with
"simultaneous". They allege that plaintiff’s plastic surgery expert
misreads the record in speaking of the combination of procedures. The words
"combination" and "simultaneous" do not have the same
meaning in this context, as they do not in most contexts. In recent years, most
of us have had the unfortunate experience of knowing, or at least reading of,
people who have suffered with cancer. It is also common knowledge that cancer is
often treated by a combination of radiation, chemotherapy, and surgery. It is
also common knowledge that each of these therapeutic modalities is not performed
simultaneously with the others. Nor did plaintiff’s expert in this case say or
suggest that the two modalities in this case were performed simultaneously. His
statement that "significant truncal liposuctions should not be combined
with classic abdominoplasty" is properly read as a statement of opinion
that abdominoplasty presents more complications for a patient who has recently
had extensive liposuction on the same part of the body.
It is irrelevant that Dr. Hugo was not the only plastic surgeon who treated Mrs.
G during her lifetime. He was the only one she consulted about the particular
procedures complained of here. The responsibility of informing her about all her
treatment options rested in his hands alone.
Further factual questions regarding informed consent are presented by Mrs. G’s
allegation that she suffered from Body Dysmorphic Disorder (BDD) and that Dr.
Hugo should have made further inquiries into her mental state before proceeding
with the abdominoplasties. The dissent misleadingly exaggerates Mrs. G’s
position. She is not arguing that her depression made her incapable of entering
into a contract, nor that BDD renders a person unable to give informed consent
to surgery in general. Nowhere is it urged that this court should impose a
general rule requiring pre-operative psychiatric referral of all plastic surgery
candidates, or even of all such candidates who have taken antidepressants. She
merely claims that her mental state affected her ability to assess the risks and
benefits of one particular type of treatment, namely elective cosmetic surgery,
because persons with this disorder have irrationally exaggerated perceptions of
their bodily imperfections. Particularly in the area of cosmetic surgery, when
there is no medical need for the operation and only the patient’s subjective
aesthetic opinion determines her view of whether surgery is to be undertaken, a
physician should have some responsibility to provide objective guidance to a
patient whose capacity for self-assessment is clearly disordered.
Dr. Hugo’s self-confessed approach is to present patients with the options and
let them decide whether to undergo a procedure, but not to advise them whether
one procedure is better than another or better than doing nothing at all. This
laissez-faire attitude may not be sufficient, however, when the patient’s
judgment appears to be impaired.
On the medical questionnaires Mrs. G filled out prior to her cosmetic surgery
treatments, she not only disclosed that she was using the antidepressant Prozac
(and had used Elavil before that), but also indicated that she suffered from
"extreme nervousness or anxiety" and had previously been taking
prescription medication for migraines. Her history of depression was also noted
on Columbia Presbyterian’s November 4, 1993 pre-operative report, which was attached
to her consent form for the November 9, 1993 abdominoplasty. When this history
is coupled with Mrs. G’s extraordinary eagerness for surgical alteration — a
nose reconstruction by a previous surgeon, followed by 51 visits to Dr. Hugo
over a 6-year period, including three facial liposuctions, eyelid surgery,
pigment tattooed onto her eyebrows, and periodic injections of fat and Botox
(botulism toxin) to smooth out facial wrinkles — it raises, at the very least,
an issue as to whether Dr. Hugo should have sought advice from a mental health
professional before performing more and more invasive procedures upon Mrs. G.
Indeed, Dr. Hugo’s deposition reveals an almost complete lack of curiosity about
his patient’s mental state. He testified that Mrs. G mentioned to him that she
was taking Elavil. He characterized this as a "mood elevator", but he
apparently asked no follow-up questions. This was his only conversation with her
about her antidepressant medication. When she first came to him, she had been
using Elavil, another antidepressant, but Dr. Hugo had gathered no further
information because "it did not seem as if it was worthy of being
pursued." He never endeavored to discover the dosage, length of use, or
symptoms giving rise to his patient’s use of antidepressants.
Lastly, he testified that he had never even heard of Body Dysmorphic Disorder.
This is a disturbing confession of ignorance from a doctor who said he was a professor
at Columbia University’s medical school teaching hospital and the chief of the
plastic surgery division of its hospital, Columbia-Presbyterian, particularly
since Columbia-Presbyterian had a BDD clinic when Mrs. G was his patient (see,
Beth Sherman, Do I Look Fat?, New York Newsday, June 5, 1993, at Section II, at
17). One might expect a plastic surgeon to be cognizant of an established
psychiatric condition that affects body image and could impair a patient’s
ability properly to appraise and consent to cosmetic surgery.
According to the dissent, even if Dr. Hugo had referred Mrs. G to a
psychiatrist, such a step would have been futile because she had already
disregarded the opinion of her former psychiatrist, Dr. Freiman, that she should
stop having so much surgery. This cursory analysis sidesteps an important
component of her claim, namely that Dr. Hugo should have consulted a mental
health professional for advice about how to proceed, or otherwise attempted to
explore his patient’s psychiatric history, once her behavior raised warning
signals that her judgment was impaired (see, Ross v Community General Hospital
of Sullivan County, 150 AD2d 838, 840-841 [physician’s negligent failure to
request accurate information from radiologist]). Plaintiff’s expert physicians,
a plastic surgeon and a psychiatrist, expressed the opinion that failure to make
such an independent investigation was a negligent departure from acceptable
medical practice, given Mrs. G’s behavior. This raises an issue
of fact sufficient to withstand summary judgment (see, Slaybough v Nathan
Littauer Hosp., __ AD2d __, 608 NYS2d 745, appeal dismissed 83 NY2d 962).
On a motion for summary judgment, the court should engage in issue finding, not
issue determination (Masucci v Feder, 196 AD2d 416, 420). The dissent’s opinion
appears to be based, in part, on a determination that Mrs. G did not have BDD.
This conclusion is premature. Defendant’s expert is of the opinion that Mrs. G
did not display enough of the standard symptoms of BDD to warrant such a
diagnosis, while plaintiffs’ experts give specific reasons for reaching a
contrary conclusion, such as her history of obsessive preoccupation with and
exaggeration of her bodily imperfections. This factual dispute is for the jury
to resolve.
Furthermore, the dissent treats as dispositive the absence of evidence that Dr.
Freiman communicated to her a diagnosis of BDD, while discounting a positive
diagnosis by her two experts because they occurred more than four years after
Dr. Hugo’s operation. It is to be noted that when asked whether Dr. Freiman had
told her she "had" BDD, she responded "We discussed it".
Dr. Freiman’s 1984-1988 treatment of Mrs. G is no closer in time to the disputed
1993 surgery than are the experts’ examinations in 1998. These considerations
merely go to the weight to be afforded to the evidence, which is not for us to
evaluate at this juncture.
Finally, we disagree with the dissent’s contention that Mrs. G will have no way
to prove that she suffered from BDD because Dr. Freiman’s records and testimony
are unavailable. The admissible evidence includes her own deposition testimony
as well as the opinions of her medical experts, which defendant’s expert
disputes based on his examination and evaluation of Mrs. G. [FN1] The weight to
be afforded to experts’ conflicting testimony is a matter best reserved for the
jury (see, Gleeson-Casey v Otis Elevator Co., 2000 NY App Div LEXIS 224).

FN1. The dissent makes much of the absence of an affidavit from Mrs. G, and gives the misimpression that therefore we have no testimony by Mrs. G in the record, when in fact 35 of the 112 pages of her deposition testimony are reproduced there. It should be noted, as well, that there was no affidavit from the movant, Dr. Hugo.

Accordingly, the order of the Supreme Court, New York County (Stanley Sklar,
J.), entered July 1, 1999, which, inter alia, denied defendant’s motion for
summary judgment dismissing the complaint, should be affirmed, without costs.
All concur except Wallach and Saxe, JJ. who dissent in an Opinion by Wallach, J.

DISSENTING OPINION

WALLACH, J. (dissenting)
John Keats, who studied medicine before turning to the verse and rhyme,
delivered the edict that "’Beauty is truth . . .’ [and] that is . . . all
ye need to know." [FN2] Sadly, the poet died young. But from our
perspective of age and time, we may feel confident that the Grecian who crafted
the urn which inspired such lofty sentiment undoubtedly knew something else:
that an unrelenting involvement with self-beautification ofttimes ends up at the
bottom of the well of Narcissus. A similar cautionary tale is presented in the
case before us.

FN2. Ode on a Grecian Urn (1819).

This medical malpractice action arises from two separate abdominal plastic
surgeries performed by defendant upon the female plaintiff in February and
November 1993. Aside from Mr. G’s derivative cause of action for loss of
consortium, four discrete claims can be distilled from the complaint and bill of
particulars:
Just prior to the operations, the patient had suffered from a mental syndrome known
as Body Dysmorphic Disorder ("BDD"), rendering her mentally incapable
of consenting to the surgeries; in such circumstances, defendant was duty bound
to refer his patient to a psychiatrist before proceeding.
Defendant failed to advise his patient of less invasive alternative procedures.
Administering a "combination" of liposuction and abdominoplasty was
itself malpractice.
Both surgical procedures were unnecessary because they were designed to correct
only "slight" or "imagined" defects.
Upon completion of discovery, defendant moved for summary judgment. Clearly, the
greater emphasis in plaintiffs’ response was on the patient’s alleged lack of
informed consent than on defendant’s actual surgical performance. Finding
triable issues of fact, based upon the conflicting testimony of expert
witnesses, the IAS court denied the motion. We disagree.
Mrs. G, then 43 years old, first met defendant in 1987, when she accompanied her
daughter for a rhinoplasty (plastic surgery to alter the shape or size of the
nose). Mrs. G had undergone such a procedure by another surgeon 16 years
earlier. Even though she claims not to have been satisfied with the daughter’s
rhinoplasty, she herself returned for a consult with defendant in 1988. She saw
him professionally 50 more times through February 1994, including twice in the hospital
for surgical procedures. In January 1989, after discussing and acknowledging the
risks of such surgery, she underwent an upper and lower blepharoplasty
(aesthetic eyelid surgery) at defendant’s office. Pleased with these results,
she discussed other procedures with defendant. In late 1990 she underwent the
first of three liposuctions (removal of fat) on her chin, and in 1991 defendant
performed tattoos (introduction of pigment) on her eyebrows. Throughout this
period defendant surgically removed various skin growths (lesions, papillomas,
skin tags and keratoses) from different parts of her body, and in 1990 he began
a series of periodic fat injections to smooth out facial wrinkles.
On February 9, 1993, Mrs. G entered Columbia Presbyterian
Hospital for a liposuction of the abdomen, flanks, thighs and knees, and a
bilateral mastopexy (correction of sagging breasts), inter alia. Defendant had
discussed these procedures with his patient over the previous two years. On
this, her 28th visit to defendant, Mrs. G acknowledged in writing the risks they
had discussed with regard to these procedures.
For the rest of that year, Mrs. G continued to see defendant for post- operative
examination and various dermatological procedures on an out-patient basis. In
October they discussed liposuction on the inner thighs and a full abdominoplasty
(surgery on the abdominal wall for aesthetic purposes). These and
other minor procedures were performed at Columbia Presbyterian on November 9,
1993, again after independent review of the risks with both defendant and a
plastic surgery resident, and Mrs. G’s written acknowledgment. This was her 40th
professional contact with defendant since 1988.
Mrs. G continued to see defendant for post-operative examination and unrelated
procedures through February 1994. Defendant claims on January 12 to have found
his patient "virtually healed" from the latest surgery, and on
February 23 – her 51st and final visit – he pronounced that the abdomen "look[ed]
good." Mrs. G canceled subsequent appointments scheduled for March 9 and
April 11. On April 29, in a telephone call from defendant’s office, Mrs. G
responded that her breast scars had healed well. Stating more than once that she
"liked" and "loved" Dr. Hugo, Mrs. G reported nevertheless
that she and her husband were dissatisfied with the appearance of her abdomen,
and had visited other plastic surgeons to see if the problem could be
"fixed." Mrs. G "agreed to come into the office to discuss the
problem", and an appointment was scheduled for 2 p.m. on December 14, 1994.
Not only were there no further visits, but this telephone call was the last
contact between the parties until commencement of this action in July 1995.
1. Body Dysmorphic Disorder
In 1986, seven years prior to the alleged malpractice, Mrs. G placed herself under
the care of a psychiatrist, Dr. Gerald Freiman, to alleviate feelings of
depression. She stopped seeing Dr. Freiman in 1990, her condition having
improved with Prozac. Defendant was aware, at the time of the surgeries in 1993,
that Mrs. G had been taking Elavil and Prozac. Two medical experts for
plaintiffs – a psychiatrist and an osteopathic surgeon specializing in plastic
surgery – stated that in their opinion, defendant should not have performed
surgery on this patient without a pre-operative psychological referral. The
psychiatrist further opined that a patient in Mrs. G’s condition could not have
made an informed consent to such surgery because her history was
"consistent with a form of Body Dysmorphic Disorder." [FN3]

FN3. In the bill of particulars, defendant was accused of performing surgery on a patient who displayed "obvious Body Dysmorphic Disorder". This allegation was never raised in the complaint.

BDD, also known as dysmorphophobia, is defined as preoccupation with a slight or
imagined defect in appearance, causing significant distress or functional
impairment, and which cannot be accounted for by another mental disorder [FN4]
(American Psychiatric Association: Diagnostic & Statistical Manual of Mental
Disorders [FN5] 466ff [4th ed, 1994]). There is no evidence of such distress or impairment,
nor any indication that Dr. Freiman ever diagnosed or treated Mrs. G for such a
disorder. Defendant’s demand for disclosure of Dr. Freiman’s file on Mrs. G was
met with the explanation (unconfirmed by any police report) that these records
had been stolen or destroyed in an office burglary. Efforts were made to
subpoena Dr. Freiman for testimony, but unfortunately, he died before he could
be deposed.

FN4. Throughout the vast body of American jurisprudence, this malady is fleetingly referred to in only one reported case (State v Guthrie, 194 W Va 657, 666, 461 SE2d 163, 172), where an accused murderer suffered from a chronically obsessive fixation with his nose.

FN5. Appellate courts have cited this text as authoritative (see, e.g., People v Taylor, 75 NY2d 277, 287).

At her deposition, Mrs. G was asked if Dr. Freiman had ever told her she was
suffering from BDD. "We discussed it," she answered. When asked what
Dr. Freiman had said about it, she replied simply that "He thought I was
crazy for wanting to have surgery." That rather non-medical remark is the
closest this record has to a diagnosis of BDD. Indeed, throughout four years
under his care, Mrs. G could not recall Dr. Freiman diagnosing
her with any condition. Furthermore, and somewhat astonishingly, is the absence
of any affidavit from Mrs. G herself, in response to the summary judgment
motion, addressing this or any other issue. [FN6] Mrs. G has never stated for
the record that she suffered from, or was ever diagnosed with, BDD. We are thus
left with the views of medical experts who have offered opinions based upon
their review of this case, and their examinations of Mrs. G conducted more than
four years after she last saw defendant. On a motion for summary judgment, mere
speculation by an expert cannot substitute for the necessary causal link between
defendant’s surgery and the patient’s alleged injury (Horth v Mansur, 243
AD2d 1041, 1043).

FN6. Even the complaint and bill of particulars were signed and verified only by plaintiffs’ attorney.

Defendant’s medical expert, Dr. Altchek, stated that it was not uncommon for
patients on mood-elevating medication to undergo plastic surgery. Nevertheless,
Mrs. G’s taking of such drugs, together with her five-year history with
defendant and the opinion of her psychiatric expert that her condition was
"consistent with a form of" BDD, was held sufficient to create a
triable issue whether defendant had committed malpractice. In our view, this
record, even when overlaid with the speculative opinions of
plaintiffs’ experts, falls far short of the evidentiary threshold to warrant a
trial. The furthest plaintiffs’ expert dared to venture was that Mrs. G’s
symptoms were "consistent with a form of" BDD. [FN7] Mrs. G’s
testimony that she had briefly discussed BDD with her psychiatrist constitutes
no diagnosis, much less a foundation, upon which to build a new set of duties to
be imposed upon plastic surgeons.

FN7. This expert never explained what these symptoms were. In contrast, defendant, in his deposition, referred to a list of objective circumstances (excess eyelid tissue, excess fat in the abdomen, sagging of the abdomen, fat in the thighs, wrinkles) that would precisely negate a diagnosis of BDD. Defendant’s immediately preceding "confession" that he had never heard of BDD hardly matters in a case where no evidence of that disorder was ever discovered in this patient, even after the most rigorous efforts fueled by hindsight.

The majority suggests that Mrs. G may be able, at trial, to cure the gaping hole
in her proof, based in part on "her own testimony". But there is no
such testimony, and the majority fails to point to any source for the ultimate
production of such proof. While plaintiffs may hope, as did Mr. Micawber, that "something
may always turn up," this has never been a basis for denying summary
judgment (see, Zuckerman v City of New York, 49 NY2d 557, 562; Straton v
Orange County Dept. of Social Servs., 217 AD2d 576).
Plaintiffs relate their allegation of malpractice to Mrs. G’s lack of informed
consent by reason of mental impairment due to her depression. But a contractual
consent may not be voided on the ground that the party granting it was suffering
from depression (Blatt v Manhattan Med. Group, 131 AD2d 48). Nor, for that
matter, is there any evidence that BDD, even if established, would render Mrs. G
incompetent to consent to surgery.
We reject the notion that this record warrants the imposition of a psychiatric
referral requirement for the benefit of the plastic surgeon himself. The
pronouncement of such a blanket rule, imposed under threat of a malpractice
lawsuit if not complied with, is far beyond the competence of any court. It
represents an unacceptable form of judicial legislation by creating a subclass
of both surgeons and patients who would require psychiatric guidance before
undertaking elective surgery. Such a requirement would judicially impose a
significant cost, the limits of which can only be imagined. Furthermore, there
is no indication in this case that Mrs. G, having already ignored Dr. Freiman’s
advice, would have heeded similar advice from anyone else. In short, there is no
causal relationship between defendant’s failure of referral and Mrs. G’s alleged
injury. As for defendant, any supposed benefit to him in aid of his treatment of
Mrs. G is based on pure speculation.
2. Alternative Less Invasive Procedures
From 1988 until 1993, over the course of dozens of visits to defendant, Mrs. G
had the opportunity to discuss and consider all manner of procedures relating to
purely cosmetic surgery, and the risks related thereto (cf., Osorio v Brauner, 242
AD2d 511, lv denied 91 NY2d 813). This was not the first plastic surgeon she had
consulted, nor would it be the last. Defendant testified that he never
recommends any particular procedure, but merely gives an explanation and lets
the patient make the decision. There is no basis in this record to infer that
Mrs. G was somehow pressured into any particular course of action.
It should be noted that Mrs. G executed a signed consent form in connection with
the abdominoplasty. Plaintiffs have offered nothing to undermine the legal
efficacy of that declaration. Given the undisputed facts of her deep experience
with plastic surgery, this knowledgeable consent is decisive.
3. The "Combination" of Liposuction and Abdominoplasty
The statement by plaintiffs’ plastic surgery expert, to the effect that
"significant truncal liposuctions should not be combined with classic
abdominoplasty," is based upon a misreading of the record. Mrs. G did not
undergo such procedures simultaneously. The only liposuction performed on her at
the time of the abdominoplasty in November 1993 was on her inner thighs, which
are part of the body’s extremities, not the trunk. The truncal liposuction had
been performed in February, with a touch-up in defendant’s office in May. The
possibility of abdominoplasty was noted as early as June and discussed in
October, but that procedure was not scheduled until November, specifically
because defendant wanted to wait an appropriate period of time to allow healing
from the liposuction. Exactly nine months elapsed between the truncal
liposuction and the abdominoplasty, and six months if counting from the office
touch-up. It was thus irrelevant for plaintiffs’ expert to suggest that Mrs. G
had been exposed to greater complications of scarring and cosmetic deformity by
reason of "combined" surgery, because such a "combination"
of procedures never occurred.
4. "Unnecessary" Surgery
All of the surgical procedures undergone by Mrs. G were elective in nature.
There is, again, no evidence in the record that Mrs. G was deceived or coerced
into undergoing these procedures with an absence of adequate knowledge.
Plaintiffs’ general allegations are insufficient in the face of defendant’s
motion for summary judgment. In opposing such a motion, neither a conclusory
allegation unsupported by competent evidence, nor rank speculation as to a
better course of action, is an appropriate substitute for the level of
admissible proof required to establish material issues of fact on the essential
elements of medical malpractice (Alvarez v Prospect Hosp., 68 NY2d 320, 325;
Tungsupong v Bronx-Lebanon Hosp. Ctr., 213 AD2d 236, 238; see also, Pan v
Coburn, 95 AD2d 670). In conclusion, we are chided by the majority, in a final
footnote, for creating a "misimpression" in noting the absence of any
affidavit from Mrs. G, the implication being that defendant should be tarred
with the same brush. This argument ignores the reality of how the record was
built in this case. It was defendant who moved for summary dismissal based upon
the equivocations, evasions and shortcomings in Mrs. G’s deposition which we
cite in detail. Manifestly, Mrs. G’s deposition testimony left her case in a
gravely weakened, if not terminal condition. Her failure to come forward on this
motion with an affidavit explaining these deficiencies speaks volumes as to the
lack of merit of her cause. In contrast, the actions of defendant are all
established by admissible medical records and other competent proof. It would be
counterproductive for him to submit a cumulative affidavit: anything favorable
would be dismissed as self-serving, and the minutest disagreement with either of
plaintiffs’ experts or Mrs. G herself could be seized upon as providing a
triable issue of fact. Wisely, defendant did not rise to the bait. Unfortunately
for Mrs. G, her silence has failed to provide a triable issue of fact. We would
reverse the order on appeal and grant defendant’s motion for summary judgment
dismissing the complaint.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE
DIVISION, FIRST DEPARTMENT.
ENTERED: JULY 27, 2000
N.Y.A.D. 1 Dept. 2000.
G. v Hugo
END OF DOCUMENT

Lozoya v. Anderson

EMTALA

Lozoya v. Anderson, No. 07-cv-218-IEG-WMc (S.D. Cal. June 17, 2008)

A patient who was visiting the area in which the hospital was located sought treatment at the hospital’s emergency department for a severe shoulder fracture. The hospital gave the patient a sling and medication but allegedly refused her request to see an orthopedic surgeon or to be transferred to a larger local institution. Rather, the patient was allegedly discharged and told to see an orthopedic surgeon closer to her home. The patient sued the hospital in federal court for a violation of EMTALA and also sued the hospital for negligence.

The United States District Court for the Southern District of California denied the defendant hospital’s motion to dismiss the EMTALA claim. The court found that where the patient was given painkillers and a sling to stabilize her emergency medical condition, further factual development was needed to determine whether material deterioration was likely to result after discharge of the patient. However, the federal court then found that a plaintiff must comply with the state requirement that a medical expert affidavit be submitted with any state law malpractice claim. Therefore, this claim was dismissed with leave to amend.

 

Lucas v. The Methodist Hosps.

ADA

Lucas v. The Methodist Hosps., Inc., No. 05-4032 (7th Cir. May 4, 2006)

The
Seventh Circuit Court of Appeals held that a hospital did not violate the
Americans with Disabilities Act ("ADA") when it did not find a
nurse a new position after its reorganization abolished her old job. The
nurse had claimed that she was disabled due to back pain but did not offer
any evidence of her disability. The court found that although she may have
been able to prove that she was unable to perform this particular job, this
fact alone did not bring her within the ADA statute.

 

Lyons v. Iowa Bd. of Med. (Full Text)

IN THE COURT OF APPEALS OF IOWA

No. 9-340 / 08-1538
Filed June 17, 2009

LYNN LYONS, D.O.,

Petitioner-Appellant,

vs.

IOWA BOARD OF MEDICINE,

Respondent-Appellee.
________________________________________________________________

Appeal from the Iowa District Court for Polk County, Douglas K. Staskal,

Judge.

A urologist appeals the district court decision affirming the Iowa Board of

Medicine’s discipline of him, claiming multiple errors. AFFIRMED.

Michael Sellers of Sellers, Haraldson & Binford, Des Moines, for appellant.

Thomas J. Miller, Attorney General, and Theresa Weeg, Assistant

Attorney General, for appellee.

Heard by Vaitheswaran, P.J., and Potterfield and Doyle, JJ.

2

VAITHESWARAN, P.J.

Lynn Lyons appeals a district court decision affirming the Iowa Board of

Medicine’s suspension of his license to practice medicine in Iowa. He claims the

board (A) was without authority to discipline him in connection with his treatment

of a single patient, (B) did not have jurisdiction to commence a disciplinary action

against him as a non-resident of Iowa with a lapsed license, (C) erred in refusing

to appoint a new panel for his second hearing, and (D) erred in refusing to

facilitate the production of certain medical records.

I.

Background Facts and Proceedings

Lynn Lyons, a board-certified urologist, practiced in Fort Dodge, Iowa,

from 2000 to 2001. One of his patients was a teenage girl with urination issues.

To treat her condition, Dr. Lyons twice suffused the girl ’s bladder with a solution

containing the drug capsaicin. The patient’s kidneys soon failed, as did her

bladder and ureters.

The patient was taken to the Mayo Clinic in Minnesota, where physicians

transplanted one of her father’s kidneys into her body and inserted a catheter to

drain her urine.

Meanwhile, Lyons moved to Dallas, Texas, where he continued to practice

medicine. His Iowa medical license became inactive in 2004.

In 2005, the board alleged that Lyons was professionally incompetent.

Lyons did not appear at the hearing. Following the hearing, the board issued a

proposed decision revoking Lyons’s Iowa medical license. On learning of the

ruling, Lyons asked to have the proposed decision rescinded on the ground that

3

he did not receive notice of the hearing. The board agreed to hold a second

hearing.

Two of the three board members who served on the original panel sat on

the second panel. Lyons initially objected to their participation. Before the

hearing, however, his attorney softened his position, telling those board

members, “If on the record both of you are prepared to willingly state that you are

confident and positive [your participation in the prior hearing] will not be a

problem, we will accept that.” Both panel members effectively made that on -the-

record affirmation. The panel considered evidence and issued a proposed

decision finding Lyons professionally incompetent. The panel imposed a ninety –

day suspension of Dr. Lyons’s Iowa license.

After the proposed decision was filed, Lyons asked the board for an

additional 3500 pages of medical records. The Department of Inspections and

Appeals granted Lyons’s request. Shortly thereafter, Lyons asked the board to

issue a subpoena for all the patient ’s medical records from the Mayo Clinic. The

State moved to quash the request and the administrative law judge granted the

State’s motion. The judge also denied Lyons’s request to have the board obtain

a medical release from the patient so that he could directly obtain the Mayo Clinic

records. The case proceeded to an appeal hearing before the Board of Medicine

after which the full board affirmed the proposed panel decision. On judicial

review, the district court affirmed the board. This appeal followed.

II.

Analysis

A.

Lyons first contends the board did not have “authority to discipline a

licensee in a case involving alleged simple negligence in a single case.” This

4

argument appears to implicate the standard of review set forth in Iowa Code

section 17A.19(10)(b) (2007) (“Beyond the authority delegated to the agency by

any provision of law or in violation of any provision of law.”).

Lyons was disciplined for violation of Iowa Code sections 147.55(2) and

272C.10(2), as defined in a board rule. See Iowa Admin. Code r. 653-

12.4(2)(a)–(c) (2005). Iowa Code section 147.55(2) provides that a license to

practice a health-related profession shall be revoked or suspended when a

licensee is guilty of professional incompetency. Section 272C.10(2) provides that

the medical licensing board shall establish ru les for the suspension or revocation

of a professional

license

for multiple grounds,

including

“professional

incompetency.” The Board’s rule defines “professional incompetency” as

including:

a.
A substantial lack of knowledge or ability to discharge
professional obligations within the scope of the physician ’s or
surgeon’s practice;
b.
A substantial deviation by the physician from the standards
of learning or skill ordinarily possessed and applied by other
physicians or surgeons in the state of Iowa acting in the same or
similar circumstances;
c.
A failure by a physician or surgeon to exercise in a
substantial respect that degree of care which is ordinarily exercised
by the average physician or surgeon in the state of Iowa acting in
the same or similar circumstances.

Iowa Admin. Code r. 653-12.4(2)(a)–(c). Nothing in these cited statutory

provisions or in the cited rule precludes the board from disciplining a physician

for substandard treatment of a single patient. An unpublished court of appeals

opinion on which Lyons relies for a contrary proposition did not construe these

provisions and, for that reason, is inapposite. Additionally, the Iowa Supreme

5

Court has affirmed a finding of incompetency based on the treatment of a single

patient in a related context, stating:

Logic does not support the idea that no matter how bad an incident
of malpractice may be
further
the board must await
that
incompetent acts of dental practice before it can suspend the
dentist’s license. We reject this notion.

Bd. of Dental Exam’rs v. Hufford, 461 N.W .2d 194, 201 (Iowa 1990).

Under this subheading, Lyons also appears to assert that there was

insufficient evidence

to support

the board’s

findings of professional

incompetence. Our review of this assertion is for substantial evidence . Iowa

Code § 17A.19(10)(f). A peer review report listing five significant violations of

professional norms, together with other records and testimony, amount to more

than substantial evidence supporting the agency’s fact-findings. While pieces of

this evidence, taken out of context, might support different findings, those pieces

do not require reversal under the pertinent judicial review standard. See Trade

Prof’ls, Inc. v. Shriver, 661 N.W .2d 119, 123 (Iowa 2003) (stating that agency, as

fact-finder, is free to accept or reject evidence as it chooses).

B.

Lyons next argues that the board did not have authority to pursue

disciplinary action against him because his license was inactive. Again, we apply

the standard of review set forth in Iowa Code section 17A.19(10)(b).

Contrary to Lyons’s assertion, the legislature has authorized the board to

regulate lapsed licenses. Specifically, a pertinent statute states that a lapsed

license is not invalid. Iowa Code § 147.10 (“Failure to renew the license within a

reasonable time after the expiration shall not inva lidate the license, but a

reasonable penalty may be assessed by the board.”). Another statute allows the

6

board to address “inactive licensee re-entry.” See id. § 272C.1(3); see also id.

§ 272C.2(2)(f). Finally, board rules implementing the pertinent sta tute specify

that “[a] physician whose license is inactive continues to hold the privilege of

licensure in Iowa but may not practice medicine under an Iowa license until the

license is reinstated to current, active status.” Iowa Admin. Code r. 653 –

9.12(1)(c) (2008). The board, therefore, was authorized to act on Lyons ’s lapsed

license.

We recognize that Lyons did not put his lapsed Iowa license in issue by

expressing an intent to renew it. This fact cannot deprive the board of authority

to consider a complaint arising from his treatment of a patient while he was

practicing in Iowa. As the Iowa Supreme Court stated,

We do not consider the question involved moot, merely because
the appellee is not at present making full use of his license to
practice . . . . To hold otherwise places in the hands of the accused
practitioner himself the power to escape the penalty provided by
law for a violation of the rules governing the conduct of his
profession, no matter how gross his misconduct may have been.

State v. Otterholt, 234 Iowa 1286, 1291–92, 15 N.W .2d. 529, 532 (1944). We

conclude the board had authority to discipline Lyons notwithstanding the fact that

his Iowa license lapsed and Lyons did not affirmatively seek reinstatement.

C.

Lyons contends that it was improper for two members of the panel

that authored the first proposed decision to serve on the panel at his second

hearing. We conclude Lyons acquiesced in their participation at the second

hearing and, accordingly, waived error on this issue.

D.

Lyons finally takes issue with the administrative law judge ’s refusal

to facilitate the release of additional medical records. A party may request

7

additional evidence after the issuance of a proposed decision if certain criteria

are met. Iowa Admin. Code r. 653-25.24(2)(e). Lyons was allowed to submit

3500 additional pages of medical records. Additionally, Lyons knew before the

proposed decision was issued that the patient was treated at the Mayo Clinic,

and he could have sought documents from that clinic in advance of the second

hearing. For these reasons, we conclude the board did not act unreasonably or

arbitrarily in denying Lyons’s request for a subpoena or medical release.

AFFIRMED.

Lufti v. Brighton Community Hosp. Assoc

Lufti v. Brighton Community Hosp. Assoc.,

No. 00CA0245 (Colo. App. May 10, 2001)

The physician-plaintiff contracted to provide emergency room services with the corporation
that in turn contracted with the hospital to provide physicians to cover the
hospital’s ER. The hospital CEO asked that the physician be removed from the
ER schedule after a patient complained that the physician was rude and refused
to provide treatment.

The Physician sued the hospital and the
hospital CEO, alleging racial and national origin discrimination under Title VII
of the Civil Rights Act of 1964 and 42 U.S.C. Section 1981, tortious
interference with an employment agreement, breach of contract and breach of
covenant of good faith and dealing. The trial court granted defendants’ motion
for summary judgment, ruling that Title VII did not apply because the physician
was an independent contractor.

The Colorado Court of Appeals, affirmed,
ruling that an employer-employee relationship must be established in order to
assert a claim under Title VII, and when Section 1981 claims stem from the same
facts, the same must be shown. The court denied the other claims because the
physician only looked to the hospital’s bylaws after he was removed from the
schedule, and therefore could not claim that he relied on the bylaws as an
employment contract.

Luettke v. St. Vincent Mercy Med. Ctr.

[Cite as Luettke v. St. Vincent Mercy Med. Ctr., 2006-Ohio-3872.]

IN THE COURT OF APPEALS OF OHIO
SIXTH APPELLATE DISTRICT
LUCAS COUNTY

Appellant

Joanne Luettke

v.

St. Vincent Mercy Medical Center, et al.

Appellees

Court of Appeals No. L-05-1190

Trial Court No. CI-0200304833

DECISION AND JUDGMENT ENTRY

Decided: July 28, 2006

Martin W. Williams, James M. Tuschman, and R. Ethan Davis, for appellant.

Jeffrey M. Stopar, for appellees.

* * * * *

* * * * *

HANDWORK, J.

{¶1} This case is before the court on appeal from the judgment of the Lucas

County Court of Common Pleas, wherein a jury found in favor of appellees John Dooner,

M.D., Joan Eischen, CRNA (“CRNA Eischen”), and Associated Anesthesiologists of

Toledo, Inc. (“AAT”). Appellant, Joanne M. Luettke, appeals the April 29, 2005 jury

verdict and asserts the following assignments of error:

{¶2} I. “The trial court erred and abused its discretion in granting the

defendants’ motion in limine, and excluding any evidence of St. Vincent’s ‘Resident

Manual’ and ‘Rules and Regulations of the Medical Staff.'”

{¶3} II. “The verdict of the jury is against the manifest weight of the evidence.”

{¶4} III. “The trial court erred in its instructions to the jury, and in its refusal to

submit appellant’s requested jury instructions.”

{¶5} In early 2001, appellant was diagnosed with a paraesophageal hernia. This

type of hernia occurs when a portion of the stomach comes up into the chest, behind the

heart. Joseph Sferra, M.D., a general surgeon, recommended that appellant undergo a

Nissen fundoplication surgery to correct the hernia.

{¶6} During the surgery, an esophageal dilator device known as a “bougie” is

routinely passed down the esophagus and used as a sizer to make sure that when the wrap

is performed the opening of the esophagus remains wide enough so that the patient can

swallow freely. The bougies come in a series of diameters to accommodate each

individual patient’s esophagus. In Toledo, the general practice is that the anesthesia team

passes the bougie at the surgeon’s request.

{¶7} Appellant was admitted to St. Vincent Mercy Medical Center (“St.

Vincent”) on March 1, 2001 for her surgery. In the pre-operative waiting area, appellant

met Sherrie Lynn who introduced herself as follows:

{¶8} “Good morning. My name is Sherrie. I am a registered nurse with the

anesthesia department, and I will be one of the people taking care of you today. I am

2.

working with Joan Eischen who is a nurse anesthetist, and Dr. Dooner is the

anesthesiologist who is working with us as well.”

{¶9} Lynn was a registered nurse, enrolled as a student in the certified registered

nurse anesthetist (“CRNA”) training program at Wayne State University. Through an

affiliation program with St. Vincent, students in the Wayne State program participate in

clinical training at the hospital. Dr. Dooner, CRNA Eischen and Lynn understood that

Lynn would be performing all of the anesthesia related procedures in appellant’s surgery

from beginning to end. However, Lynn did not identify herself to appellant as a student

in training, nor did she discuss with appellant that she would be performing all anesthesia

aspects of the surgery.

{¶10} When surgery commenced, Dr. Dooner instructed Lynn to perform the

induction and intubation of appellant. After this was accomplished, Dr. Dooner left the

operating room. He did not return until he was called back, more than an hour and a half

later, after complications arose.

{¶11} Once appellant was anesthetized, Dr. Sferra requested that the anesthesia

team pass the bougie down appellant’s esophagus. Under the supervision of CRNA

Eischen, Lynn successfully passed a size 40 bougie. Dr. Sferra determined the device

was within the esophagus and told Lynn to remove it and insert a larger, size 44 bougie to

further dilate appellant’s esophagus. Lynn inserted the device and indicated that it had

been placed at a sufficient distance that it should have been perceptible in the operative

field. Dr. Sferra, however, could not see the bougie. Lynn then withdrew the bougie and

3.

attempted to pass it a second time. Again, Dr. Sferra was unable to see it. CRNA

Eischen then attempted to insert the device, but it was still not perceptible in the operative

field. Dr. Sferra then suggested that Dr. Dooner be called back into the operating room.

{¶12} Dr. Dooner arrived back in the room and was briefed on the situation.

Suspecting a perforation of appellant’s esophagus at this point in time, Dr. Sferra

requested that Dr. Dooner pass the bougie. Dr. Dooner attempted the procedure, but

again Dr. Sferra was not able to perceive the device in appellant’s esophagus. Dr. Sferra

began to manipulate the esophagus and saw that the bougie was outside the esophagus.

Upon confirming that the device had in fact perforated appellant’s esophagus, Dr. Sferra

immediately consulted with a cardiothoracic surgeon at St. Vincent. They concluded

appellant’s surgery would have to be converted to an “open” procedure, which involved

an incision in the abdomen as opposed to using a laparoscope. Surgery was performed to

repair the esophagus at that time as well.

{¶13} Due to the perforation and the repair, it was necessary to put appellant on a

feeding tube and keep her in a “coma-like state” for four days. Fluids accumulated in

appellant’s lungs and were evacuated. She also developed blood clots in her arms. It

took three to four days before appellant was stable enough to be removed from the

ventilator. Following the perforation, appellant experienced severe pain, gagging,

nausea, loss of appetite, poor esophageal motility, and depression. Two months after the

procedure, appellant was still unable to eat on her own and was continuously nourished

through feeding tubes.

4.

{¶14} As a result of appellant’s complications, she was admitted to the University

of Michigan Hospital where it was determined that she had no esophageal motility, as

well as anxiety and depression. Appellant’s depression was so severe that she required

electric shock therapy, which caused severe memory loss and was subsequently

discontinued as a result. Appellant continues to choke and gag when she eats and is

afraid to go out to eat in public because of the symptoms.

{¶15} Subsequently, appellant filed suit against appellees CRNA Eischen, Dr.

Dooner and his professional practice group, AAT. Also named as defendants were

student nurse Lynn and St. Vincent.1 Appellant asserted claims for medical malpractice

and informed consent.

{¶16} Prior to trial, the trial court granted, in part, appellees’ motion in limine,

which excluded any evidence and/or testimony with respect to the policies, provisions,

and standards concerning the supervision of anesthesia procedures performed by

students, informed consent for student participation, and patient rights, as set forth within

St. Vincent’s Resident Manual (“Manual”) and Rules and Regulations of the Medical

Staff (“Regulations”). Appellant’s claims were ultimately tried to a jury which returned a

verdict in favor of appellees on all counts. This appeal now follows.

1Due to pre-trial rulings, appellant dismissed her claims against St. Vincent.
Because Lynn had no malpractice insurance, the court also dismissed the claims against
her as well. The parties stipulated and agreed that at all times during appellant’s
procedure, Lynn was acting as an agent of AAT and that Dr. Dooner and CRNA Eischen
had ultimate responsibility for her conduct.

5.

{¶17} In her Assignment of Error No. I, appellant argues that the trial court

abused its discretion in granting appellees’ motion in limine and excluding any evidence

of St. Vincent’s Manual and Regulations.

{¶18} Appellant repeatedly attempted to introduce as evidence both the Manual

and Regulations to demonstrate that St. Vincent established a specific standard of care to

be followed by the entire medical staff and that appellees violated that standard. The

Manual contains safety standards of care promulgated by St. Vincent for the supervision

and responsibilities of students in training. The Manual provides, in part, that:

{¶19} “*** all anesthetic procedures, other than locals, shall be performed in the

presence and under the supervision of a qualified anesthesiologist.” (Emphasis added.).

{¶20} It further states that a patient has the right to:

{¶21} “Know the name and professional status of your health care providers, the

reasons for any changes, and the relationship to any other health care or educational

institution involved in your care.”

{¶22} The Regulations further define the hospital’s standard of conduct and care

required of all medical providers. It provides for the rights and responsibilities of the

patient, which include the right to know the identity and training status of student

caregivers, in addition to the rules governing consent for procedures and “other

research/educational projects.” Regarding the identity of caregivers, the Regulations

provide:

6.

{¶23} “Patients should be told of the identity and professional status of

individuals providing service to them, and which physicians or other practitioners are

primarily responsible for their care. Patients should also be informed of the relationship

between the medical center and other institutions involved in their care. Persons engaged

in clinical training programs or in the gathering of data for research purposes should

identify themselves.” (Emphasis added.).

{¶24} The Regulations go on to address the topic of consent and state that:

{¶25} “Patients have the right to make reasonably informed decisions involving

their health care, and the right to the information necessary to make such decisions.”

{¶26} “Patients should be informed about who is responsible for performing

procedures or treatments.” (Emphasis added.).

{¶27} “Patients shall be informed if the medical center or health care professional

proposes to engage in, or perform experiments or other research/educational projects

affecting their care or treatment and may consent or refuse to participate in any such

activity.” (Emphasis added.).

{¶28} The trial court, however, granted appellees’ motion in limine and excluded

both the Manual and Regulations. Its basis for granting the motion was that the

documents were irrelevant in determining the standard of care. The court found, in the

alternative, that if the documents had relevance, admission would mislead or confuse the

jury. The court further supported its conclusion by stating that “expert testimony rather

7.

than documents or other evidence establish [sic] the proper standard of care in a medical

setting.”

{¶29} A motion in limine is designed “to avoid the injection into a trial of a

potentially prejudicial matter which is not relevant and is inadmissible.” Reinhart v.

Toledo Blade Co. (1985), 21 Ohio App.3d 274, 278. To be relevant and therefore

admissible, evidence must have a tendency “to make the existence of any fact that is of

consequence to the determination of the action more probable or less probable than it

would be without the evidence.” Evid.R. 401.

{¶30} Appellees maintain that neither document is relevant to provide evidence of

a standard of care. They contend that the Manual pertains to “residents” and medical

students only.2 Because Lynn does not fall under either classification, appellees argue

that it does not apply to her. Nevertheless, appellees fail to present any document that

does pertain to Lynn or any other student nurse anesthetist. They would have this court

believe that there is no written standard that applies to student nurses when there is an

entire manual that controls the conduct of medical students and residents. To argue that

residents and medical students are required to perform all anesthetic procedures “in the

presence and under the supervision of a qualified anesthesiologist,” but a lesser trained

student nurse anesthetist performing the exact same procedures is not, is illogical and

offensive to one’s sensibilities. The terms and conditions of the Manual with respect to

2A resident is a licensed physician who has completed medical school. A medical
student is one who is in medical school pursuing a medical degree.

8.

the supervision of anesthetic procedures should be applicable regardless of whether the

procedure is being performed by a resident, a medical student, a student nurse, or a

student nurse anesthetist.

{¶31} Appellees further echo the conclusion made by the trial court and argue that

both the Manual and Regulations are irrelevant because expert testimony, not documents,

establishes the standard of care in a medical setting. While appellees’ and the lower

court’s contention is correct, the Ohio Supreme Court held that hospital rules and

regulations are, at the discretion of the judge, also admissible to provide evidence of the

standard of care. Berdyck v. Shinde (1993), 66 Ohio St.3d 573; Burks v. The Christ

Hospital (1969), 19 Ohio St.2d 128, 131. See, generally, Gray v. Grandview Hospital

(Jan. 22, 1979), 2d Dist. No. 5849; Siebe v. University of Cincinnati (Ct. Claims 2001),

117 Ohio Misc.2d 46. Therefore, the trial court’s stated basis for excluding both

documents is contrary to established law. Moreover, if self-imposed policies, rules and

regulations are not relevant to help determine a hospital’s standard of care, as appellees

and the lower court would have one believe, then why would an organization create such

policies in the first place? The whole purpose of promulgating documents, such as the

ones at issue here, is to ensure that employees follow a consistent standard of care and

quality at all levels of an organization.

{¶32} In further support of their relevance, both the Manual and Regulations

substantiate the assertions of appellant’s expert witness regarding the standard of care, as

well as the ethical guidelines established by the American Society of Anesthesiologists

9.

(“ASA”). Appellant argues that because such evidence, if presented, would make the

existence of appellees’ violation of the standard of care more probable than not, the

documents are relevant and therefore should have been admitted. We agree. All of the

excluded evidence endorses a standard of care that requires supervision of student nurse

anesthetists by an anesthesiologist. It further endorses a standard that requires the

medical profession to inform patients of the identity and training status of the individuals

involved in their care. It is undisputed that Lynn failed to disclose her student status to

appellant and the extent of her involvement in appellant’s surgery. Appellees also do not

dispute that Dr. Dooner failed to supervise Lynn during the bougie procedure. The

actions taken by appellees and Lynn were in clear violation of St. Vincent’s policies,

rules, and regulations. Thus, the Manual and Regulations, if admitted, would have made

the existence of appellees’ violation of the standard of care, i.e. the duty to disclose

training status and the required supervision of student nurse anesthetists, more probable

than not. For that reason, both documents are relevant and admissible pursuant to

Evid.R. 401.

{¶33} However, even if evidence is relevant, it must be excluded under Evid.R.

403(A) “if its probative value is substantially outweighed by the danger of unfair

prejudice, of confusion of the issues, or of misleading the jury.” Despite the mandatory

terms of Evid.R. 403(A), a decision to admit or exclude evidence will be upheld absent

an abuse of discretion. O’Brien v. Angley (1980), 63 Ohio St.2d 159, 163 (Citations

omitted.). “‘The term ‘abuse of discretion’ connotes more than an error of law or

10.

judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.'” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, quoting State

v. Adams (1980), 62 Ohio St.2d 151, 157.

{¶34} As noted, the trial court excluded the Manual and Regulations based on

irrelevancy in determining the standard of care. The court further determined that if the

documents had relevance, admission would mislead or confuse the jury. We have

already decided that both documents are relevant to provide evidence of St. Vincent’s

standard of care and appellees’ violation of that standard. However, we must now

consider whether the documents fall under Evid.R. 403(A) and would be therefore

inadmissible.

{¶35} Appellees maintain that even if the documents were relevant and

subsequently admitted into evidence, they should be excluded because they would

ultimately confuse the jury as to the applicable standard of care. They contend that the

jury would have the daunting task of determining the standard of care from the testimony

of two competing expert witnesses, from the ASA ethical guidelines, and from the

hundreds of pages of hospital policies and regulations. Appellees argue that the jury

could potentially have to decide between five different standards of care based upon the

documents and expert testimony, as opposed to two standards of care based solely on

expert testimony.

{¶36} What appellees fail to mention, however, is that four out of the five pieces

of evidence, including the Manual and Regulations, endorse one uniform standard of

11.

care, while appellees’ expert witness endorses another. It is difficult to understand how

admitting into evidence documents that support one of two standards of care would be

confusing to the jury. Furthermore, when a hospital publishes its own policies,

procedures, rules, and regulations establishing its standard of care, it defies logic to think

that such documents would be confusing or misleading to a jury. If anything, St.

Vincent’s documents would have helped the jury determine the applicable standard of

care. We find both documents to be relevant and the trial court’s grounds for exclusion to

be outside the parameters of the statute. Thus, the trial court’s decision to exclude the

Manual and Regulations was not justified and clearly contrary to reason. Consequently,

we find that the trial court acted unreasonably and arbitrarily in refusing to admit St.

Vincent’s Manual and Regulations and, therefore, the court’s grant of appellees’ motion

constituted an abuse of discretion.

{¶37} However, even in the event of an abuse of discretion, a judgment will not

be disturbed due to exclusion of evidence unless the abuse affected the substantial rights

of the adverse party or is inconsistent with substantial justice. Civ.R. 61; O’Brien, 63

Ohio St.2d at 164-165. Appellees maintain that appellant’s substantial rights were not

affected by the exclusion of the Manual and Regulations. Rather, they claim the trial

court’s decision to exclude both documents was merely harmless error. See Civ.R. 61.

They maintain that appellant was able to introduce other evidence on the issues for which

the documents were offered and refer specifically to appellant’s expert witness, John W.

Schweiger, M.D. Dr. Schweiger testified that the standard of care for student

12.

participation requires disclosure of the student’s status, as well as an explanation of the

role the student will play in the patient’s treatment. Dr. Schweiger’s testimony was

likewise identical to the standards set forth by St. Vincent and the ethical guidelines

promulgated by the ASA.

{¶38} Oddly enough, however, appellees’ expert witness, Richard Prielipp, M.D.,

who, in fact, practices at St. Vincent, testified contrary to Dr. Schweiger with regard to

St. Vincent’s written policies and the ASA guidelines. Dr. Prielipp testified that the

standard of care did not require Dr. Dooner, CRNA Eischen or Lynn to disclose to

appellant that Lynn was a student nurse anesthetist. He also testified that the standard of

care did not require Dr. Dooner to be present in the operating room during the bougie

placement, and that Dr. Dooner properly supervised Lynn during the one and a half hour

period that he was not present in the operating suite. CRNA Eischen also testified that

there was no policy that required students to indicate they were students. Dr. Dooner

further testified that, in his opinion, there were no formal consent procedures for the

participation of student CRNA’s in patient procedures without the patient’s knowledge.

{¶39} It is undisputed that appellees and their expert witness’s testimony directly

conflicts with the aforementioned standard of care set forth by St. Vincent in the Manual

and Regulations. It is also undisputed that Dr. Dooner and Dr. Prielipp, who both

testified and acknowledged that the ASA has well-defined ethical guidelines regarding

the disclosure of student participation in anesthesia procedures, later testified that the

applicable standard of care was contrary to those guidelines. Consequently, appellant

13.

was prejudiced by the exclusion of both documents in her ability to impeach appellees

and their expert witness with evidence of the hospital standards. The jury was also

prevented from considering crucial evidence that affected the credibility of appellees and

their expert witness.

{¶40} When a hospital promulgates specific supervisory standards for anesthetic

procedures, as well as patients’ rights regarding disclosure of student status, it is clearly

prejudicial to find them inadmissible. The exclusion of St. Vincent’s Manual and

Regulations, in the case sub judice, was not harmless error. It is, therefore, our

conclusion that substantial justice has not been done, and that the trier of facts might not

have reached the same conclusion had this error not occurred.

{¶41} In sum, we find that the Manual and Regulations are relevant documents

and should have been presented to the jury to provide evidence of a standard of care.

Moreover, the exclusion of such documents was an abuse of discretion and undermined

appellant’s substantial rights. Accordingly, appellant’s first assignment of error is found

well-taken. Appellant’s final two assignments of error are therefore rendered moot and

need not be considered here.

{¶42} Nonetheless, appellees set forth a cross-assignment of error, pursuant to

App.R. 3(C)(2), to prevent reversal of the trial court’s judgment. The cross-assignment of

error reads:

{¶43} “The trial court’s final judgment could be upheld on the alternative basis

that appellant’s informed consent claim was without merit as a matter of law.”

14.

{¶44} R.C. 2317.54 provides:

{¶45} “Written consent to a surgical or medical procedure or course of procedures

shall, to the extent that it fulfills all the requirements in divisions (A), (B), and (C) of this

section, be presumed to be valid and effective, in the absence of proof by a

preponderance of the evidence that the person who sought such consent was not acting in

good faith, or that the execution of the consent was induced by fraudulent

misrepresentation of material facts, or that the person executing the consent was not able

to communicate effectively in spoken and written English or any other language in which

the consent is written. Except as herein provided, no evidence shall be admissible to

impeach, modify, or limit the authorization for performance of the procedure or

procedures set forth in such written consent.

{¶46} “(A) The consent sets forth in general terms the nature and purpose of the

procedure or procedures, and what the procedures are expected to accomplish, together

with the reasonably known risks, and, except in emergency situations, sets forth the

names of the physicians who shall perform the intended surgical procedures.

{¶47} “(B) The person making the consent acknowledges that such disclosure of

information has been made and that all questions asked about the procedure or

procedures have been answered in a satisfactory manner.

{¶48} “(C) The consent is signed by the patient for whom the procedure is to be

performed, * * *.” (Emphasis added.)

{¶49} In the case before us, the material provisions of the consent form read:

15.

{¶50} “* * * I hereby authorize Dr. Sferra and/or such assistants, designees or

hospital personnel as may be selected by him, to perform the above described

procedure(s) necessary to diagnose and/or treat my condition(s).

{¶51} “* * *

{¶52} “Additionally, I consent to the administration of anesthesia under the

direction and supervision of the above doctor(s) or such anesthesiologist as they shall

select, and to the use of such anesthetic agents as they may deem advisable.”

{¶53} At the trial of this case, Dr. Sferra testified that he was not responsible for

the personnel or procedures used in administering anesthesia. Rather, it is clear that Dr.

Dooner was responsible for that aspect of the medical procedure. Neither his name nor

the name of his student nurse anesthetist appear in the implied consent form. Therefore,

the requirement found in R.C. 2317.54(A) was not met. Furthermore, the informed

consent form signed by appellant shows through its own terms and by a preponderance of

the evidence that there was a material misrepresentation of the facts. Specifically, the

form consents only to the administration of anesthesia under the direction and

supervision of Dr. Dooner. As noted previously, appellees do not dispute that Dr. Dooner

failed to supervise Lynn during the bougie procedure. Accordingly, appellant’s cross-

assignment of error is found not well taken.

{¶54} On consideration whereof, this court finds substantial justice was not done

the party complaining, and the judgment of the Lucas County Court of Common Pleas is

reversed. This case is remanded to that court for further proceedings consistent with this

16.

judgment. Appellees are ordered to pay the costs of this appeal pursuant to App.R. 24.

Judgment for the clerk’s expense incurred in preparation of the record, fees allowed by

law, and the fee for filing the appeal is awarded to Lucas County.

JUDGMENT REVERSED.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27.
See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98.

Peter M. Handwork, J.

_______________________________
JUDGE

17.

Mark L. Pietrykowski, J.

Arlene Singer, P.J.
CONCUR.

_______________________________
JUDGE

_______________________________
JUDGE

This decision is subject to further editing by the Supreme Court of
Ohio’s Reporter of Decisions. Parties interested in viewing the final reported
version are advised to visit the Ohio Supreme Court’s web site at:
http://www.sconet.state.oh.us/rod/newpdf/?source=6.