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Wasdin v. Mager8/3/2005
BLACKBURN, P. J., MILLER and BERNES, JJ.
In this medical malpractice action, plaintiffs Ann Wasdin and her husband appeal a partial summary judgment that precluded them from recovering mental distress damages arising from the economic pressures of raising a fourth child, whose birth had resulted from an allegedly negligent sterilization procedure performed by the defendants (Drs. Mager and Dede). Citing the absence of proximate cause evidence, Dr. Mager cross-appeals the court's denial of summary judgment on all claims. For the reasons set forth below, we discern no error and affirm in both cases.
Summary judgment is proper when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. 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.
So construed, the evidence shows that in 1990, Ann Wasdin had a cyst removed, which resulted in the removal of her left ovary and of a portion of her left fallopian tube. After bearing two children, she requested surgical sterilization in 1999; accordingly, her physician Dr. Dede performed a laparoscopic tubal ligation to cauterize her right fallopian tube to prevent further pregnancies. Despite this procedure, Wasdin became pregnant and bore a third child.
Wasdin and her husband approached Dr. Dede about performing a second sterilization procedure to ensure that another pregnancy would not occur. Dr. Dede and Dr. Mager performed a partial salpingectomy on Wasdin's right fallopian tube, which involved removing two-to-three centimeters of the distal end of that tube. Though aware of the stump remaining of Wasdin's left fallopian tube, the physicians did nothing to occlude that tube. Wasdin became pregnant and bore a fourth healthy child.
Wasdin had a third physician, Dr. Dohn, perform a hysterectomy on her to prevent further pregnancies. Prior to performing that procedure, Dr. Dohn performed a chromopertubation by injecting dye into Wasdin's uterus to determine if either of the fallopian tubes were open. He witnessed that dye freely spilled from the stump of her left fallopian tube but none leaked from her right fallopian tube. Dr. Dohn opined that the fourth pregnancy occurred when an egg transmigrated from the right ovary and was communicated through the open left fallopian tube into the uterus.
Testifying as an expert witness, Dr. Dohn stated in an affidavit that Drs. Dede and Mager acted negligently when during the second sterilization procedure, they failed to take action to ensure the stump of the left fallopian tube was occluded. He opined that since the right fallopian tube had previously been cauterized during the first sterilization procedure, and since a pregnancy resulting in the third child had nevertheless occurred, the standard of medical care required a physician to also focus on and cauterize the left fallopian tube during the second sterilization to ensure that the remaining stump could not facilitate a pregnancy. Since his tests showed that the pregnancy resulted from the open left fallopian tube, this negligence caused the pregnancy that produced the fourth child.
Attaching Dr. Dohn's affidavit to their complaint, Wasdin and her husband sued Drs. Dede and Mager for medical malpractice, seeking to recover for damages associated with the birth of their fourth child and also to recover for their mental distress arising out of the economic pressures of raising a fourth child. Following a period of discovery, Drs. Dede and Mager both m
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