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Petzelt v. Tewes3/28/2003
Philip Petzelt sued Patricia Tewes, M.D., and Northside Anesthesiology Consultants, LLC, ("Tewes") for compensatory and punitive damages alleging that Tewes, an anesthesiologist, committed battery, breach of fiduciary duty, and medical malpractice. Petzelt's battery and breach of fiduciary duty claims were based, in part, on his allegation that Tewes had fraudulently obtained his consent to perform certain medical procedures. Tewes moved for partial summary judgment on the latter claims, arguing that there was "no evidence that Dr. Tewes made any false statements to Mr. Petzelt or that she intentionally misled or deceived for the purpose of obtaining his consent." Tewes also sought summary judgment on Petzelt's claim for punitive damages. The trial court granted Tewes' motion, and the remaining claims of malpractice and battery for exceeding the scope of consent were tried by a jury. The jury returned a verdict of $1,500 on Petzelt's battery claim and found for Tewes on Petzelt's medical malpractice claim and his wife's loss of consortium claim. The Petzelts now appeal the trial court's grant of partial summary judgment, and for reasons that follow, we reverse.
Petzelt contends that the trial court erred in granting summary judgment to Dr. Tewes on his claim that she fraudulently obtained his consent to perform the medical procedures by assuring him that his referring orthopedic surgeon, Dr. Edwards, was fully aware of and approved of her treatment plans for him. Petzelt further asserts that the trial court should have allowed his punitive damages claim to go to the jury based on his fraud claim.
1. On appeal from the trial court's grant of partial summary judgment, we conduct a de novo review. We "construe the evidence and all reasonable inferences therefrom in the light most favorable to [Petzelt] as the non-movant. Summary judgment in favor of [Tewes] is appropriate only if there is no genuine issue of material fact concerning [Petzelt's] claim ."
Viewed in this manner, the evidence shows that Dr. Edwards referred Petzelt to Dr. Tewes for treatment of his lower back, specifically for a nerve block to determine whether his pain was caused by a herniated disk. Dr. Tewes performed the procedure, but it did not alleviate Petzelt's pain. Dr. Tewes thus recommended that Petzelt proceed with facet blocks, a different procedure designed to determine whether his pain arose from degeneration in his lumbar facet joints. Petzelt told Dr. Tewes to "discuss with Dr. Edwards and whatever you two decide [he would] be happy to go along with."
When Petzelt returned to Dr. Tewes for the facet blocks, Tewes told him she had been unable to contact Dr. Edwards by telephone, but that she had kept him advised. Petzelt told Dr. Tewes that he was concerned about her not having spoken with Dr. Edwards. According to Petzelt, Tewes "repeated over and over and reassured that she had sent [Dr. Edwards] communications and that [Dr. Edwards] was aware of everything that was being done and that he had been advised. And she said this over and over again to get [Petzelt] to consent to the procedure." Petzelt agreed, and Dr. Tewes then administered three facet blocks on the left side of Petzelt's lower back, which alleviated some of Petzelt's pain.
Dr. Tewes later followed up with Petzelt concerning a continuing treatment plan. Tewes explained to Petzelt that he could undergo another set of facet blocks or he could proceed with a radio frequency denervation, a longer-lasting treatment. Petzelt again told Dr. Tewes to discuss the matter with Dr. Edwards and that he would go along with whatever the two of them decided.
Petzelt subsequently returned to Dr. Tewes for
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