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Lauro v. Knowles12/14/2001
ality of a risk is the significance a reasonable person, in what the physician knows or should know is his or her patient's position, would attach to the disclosed risk in deciding whether to submit to surgery or treatment. Lauro II, 739 A.2d at 1186. While stating in Lauro II that this would ordinarily be a determination for the trier of fact, we also recognized that "not every lack-of-informed-consent claim automatically requires a jury." Id. at 1187. We specifically stated that when the possibility of a patient suffering an adverse consequence is so remote, or of such relatively trivial impact, summary judgment may be proper. Id.
To that end, defendants submitted affidavits demonstrating that the risk to plaintiff was indeed so small and of such insignificant and trivial impact as to render summary judgment appropriate in this case. Doctor Frank J. Schaberg, Jr., M.D. (Schaberg), chief of surgery at Memorial Hospital in Rhode Island, testified by affidavit that "the learned treatise addressing the question of risks of corneal abrasion on which people in the discipline would ordinarily and customarily rely upon, indicates that the risk of corneal abrasion when the eyes are protected as in this case, is 0.17%." Schaberg also noted that there was a "very low risk of any long term sequeli" or long-term complications arising from the injury . In fact, the affidavit testimony of Dr. Kathleen C. Hittner, M.D. (Hittner), clinical professor of anesthesia at Brown University Medical School, noted that most corneal abrasions heal within twenty-four hours of the injury. Hittner testified that in her experience overseeing practicing anesthesiologists, 5 out of 17,000 patients a year suffer corneal abrasions, or .029%.
In the face of these affidavits establishing the extremely low risk of corneal abrasion and the even lower risk of long-term impact, plaintiff submitted no opposing affidavits or other evidence demonstrating the existence of genuine issues of material fact relative to a duty to warn of a more significant risk and/or long-term complication from an injury . On appeal, plaintiff argued that determinations of whether 0.17% and .029% probabilities are material risks should be jury determinations. The plaintiff further avers that the corneal abrasion she suffered is not trivial because she still suffers from the effects of the injury. To strictly hold to the plaintiff's argument would mean that no informed consent cases, regardless of how minute the risk to the patient, ever would be appropriate for summary judgment. In situations in which the moving party has established that the risk of injury is minimal and of relatively trivial impact, summary judgment in informed consent cases is appropriate, particularly when the nonmoving party has failed to produce contrary proof through expert witness affidavits or otherwise.
Accordingly, the plaintiff's appeal is denied and dismissed. The judgment below is affirmed and the papers in this case are remanded to the Superior Court.
JUSTICES: Williams, C.J., Lederberg, Bourcier, Flanders, and Goldberg, JJ.
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