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Trombley v. Starr-Wood Cardiac Group6/16/2000
cable standard of care.
A party moving for summary judgment has the burden of making a prima facie showing that there are no genuine issues of material fact. This burden was not met with respect to Trombley's informed consent claim, for the elements of that claim were not even discussed.
The defendants argue that the informed consent argument is waived because Trombley did not mention it in her opposition to the motion for summary judgment, or her motion for reconsideration, or her points on appeal. But our review of the record indicates that Trombley did reiterate the facts of her claim in the verified statement of the facts which she submitted in opposition to the motion for summary judgment. She referred to her "repeated and urgent request" that the vein be taken from her left leg "which was cavalierly ignored by the surgical team consisting of Drs. Ahmad, Barmata and Randecker." It is true that Trombley did not label the claim to which these facts applied as a failure to obtain her consent. This would have been helpful. But she was not obligated to do so, for the defendants had not made the required prima facie showing negating the existence of her claim. Thus, the burden to demonstrate the existence of facts requiring a trial was not shifted to Trombley.
One of Trombley's points on appeal was that the court erred in granting summary judgment in favor of the defendants. This is broad enough to encompass the summary judgment on her informed consent claim. Further, it is no longer true that points not listed in a statement of points on appeal will not be considered on appeal. Instead, the rule is that failure to state points in the statement of points is not in itself a waiver so long as the point is adequately briefed and the court can address it "effectively without reviewing untranscribed portions of the electronic record." These conditions are met in this case. For these reasons the informed consent claim has not been waived.
The defendants also claim that the informed consent claim is legally insufficient. But this argument was not made below, is not well developed on appeal, and is in part fact dependent, and the facts on which it depends are not well focused. Under these circumstances, we decline to consider this argument.
F. The Trial Court Should Correct the Judgment Regarding Dale Trombley's Attorney's Fees.
Dale Trombley initially argued that the attorney's fees award against him should be reduced, but the defendants point out that they had already stipulated to such a reduction, and the trial court amended the award in accordance with the stipulation. Evidently, an amended judgment reflecting this reduced amount has not been entered. The trial court should enter such a judgment on remand.
IV. CONCLUSION
For the foregoing reasons, the trial court's grant of summary judgment is REVERSED and REMANDED except with respect to the loss of consortium claim. The trial court should enter an amended judgment with respect to the attorney's fees against Dale Trombley.
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