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Tuten v. Costrini5/28/1999
In the Court of Appeals of Georgia
BL-046
In this medical malpractice action, Lynelle Tuten appeals from the trial court's grant of summary judgment to Dr. Nicholas Costrini, contending that trial court erred in finding: (1) that a consent form signed by her raised the rebuttable presumption that the consent was valid pursuant OCGA § 31-9-6.1; and, (2) that Tuten had failed to rebut that presumption. For the reasons set forth below, we affirm.
"A de novo standard of review applies to an appeal from a grant of summary judgment, and we view the evidence, and all reasonable Conclusions and inferences drawn from it, in the light most favorable to the non-movant." Matjoulis v. Integon Gen. Ins. Corp., 226 Ga. App. 459 (1) (486 SE2d 684) (1997).
Summary judgment is appropriate where the moving party can show that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. OCGA § 9-11-56 (c).
"A defendant meets this burden by "showing the court that the documents, affidavits, depositions and other evidence in the record reveal that there is no evidence sufficient to create a jury issue on at least one essential element of plaintiff's case. . . . All of the other disputes of fact are rendered immaterial." Lau's Corp. v Haskins, 261 Ga. 491 (405 SE2d 474) (1991). Phelps v. Bellsouth Advertising &c; Corp., 235 Ga. App. 147, 148 (508 SE2d 779) (1998).
Construing the facts favorably to Tuten, the evidence shows that Dr. Costrini performed an upper endoscopy on Tuten to determine if she suffered from an obstruction of the esophagus. On the day of the procedure, Tuten read and signed a form entitled, "Consent to Surgical or Diagnostic Procedures." She had no questions. During the upper endoscopy, Dr. Costrini found a stricture and performed an esophageal dilation. Tuten suffered a tear of the esophagus, a recognized risk of such a procedure, which required immediate surgery and an extended hospital stay. Tuten does not contend that Dr. Costrini failed to meet the standard of care in the actual performance of the subject surgical procedure.
Tuten filed this action for medical malpractice asserting that Dr. Costrini deviated from the standard of care in failing to obtain her informed consent prior to performing the esophageal dilation. Thus, the only issue is her consent to the performance of the procedure, not the quality thereof. Dr. Costrini moved for summary judgment contending that he had obtained valid consent on the basis of the consent form and the deposition testimony of Tuten's expert. The trial court granted the motion.
1. The issue of informed consent is addressed by OCGA § 31-9-6.1, which, in relevant part, provides that a patient who is to undergo a surgical procedure under general, spinal or major regional anesthesia must consent to the procedure and must be informed, in general terms, of
(3) The material risks generally recognized and accepted by reasonably prudent physicians of infection, allergic reaction, severe loss of blood, loss or loss of function of any limb or organ, paralysis or partial paralysis, paraplegia or quadriplegia, disfiguring scar, brain damage, cardiac arrest, or death involved in such proposed surgical or diagnostic procedure which, if disclosed to a reasonably prudent person in the patient's position, could reasonably be expected to cause such prudent person to decline such proposed surgical or diagnostic procedure on the basis of the material risk of injury that could result from such proposed surgical or diagnostic procedure.
A rebuttable presumption as to the validity of the consent is established if t
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