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Murphy v. Berger6/21/2005
RUFFIN, C. J., JOHNSON, P. J., BARNES, J.
This case began as a traditional medical malpractice action. Dr. Jay Berger and Jay S. Berger, M.D., P.C. (collectively "Berger") performed a phacoemulsification with implantation of a posterior chamber intraocular lens ("cataract surgery") on the right eye of Thomas Murphy. Thomas and Andrea Murphy allege that Berger negligently injured Thomas Murphy while administering a retrobulbar anesthetic injection during the procedure. The Murphys later amended their complaint to include an allegation that Berger violated OCGA § 31-9-6.1, a statute governing informed consent in specific types of medical procedures.
The Murphys sought partial summary judgment on their informed consent allegation, and Berger sought to dismiss the informed consent allegation on the ground that OCGA § 31-9-6.1 is inapplicable to the facts of the case. The trial court found that the requirements of OCGA § 31-9-6.1 do not apply to the anesthetic injection causing the injury in this case, and dismissed this allegation of the complaint. While we do not reach the merits of the trial court's judgment regarding the anesthetic injection, we affirm because the requirements of OCGA § 31-9- 6.1 do not apply to Thomas Murphy's cataract surgery.
On appeal of a grant of summary judgment, we determine whether the trial court erred in concluding that the moving party demonstrated that no genuine issue of material fact remained and that he was entitled to judgment as a matter of law. The moving party may carry their burden either by (1) presenting evidence negating an essential element of the nonmoving party's claim; or (2) demonstrating an absence of evidence to support an essential element of the nonmoving party's claim. If the moving party discharges this burden, the nonmoving party cannot rest on the mere allegations or denials of his pleadings, but rather must point to specific evidence giving rise to a triable issue.
1. The Murphys contend the trial court erred in determining that OCGA § 31-9-6.1 is inapplicable in the present case. The main issue to be determined is whether the Murphys have a valid claim, based upon Berger's failure to obtain an informed consent to the procedure utilized, under either the common law or statutory law. We find that they do not. However, their claim for professional negligence remains intact.
a. Common Law Informed Consent
As the trial court noted, it was unclear whether the Murphys contended they had a common law cause of action based upon Berger's failure to obtain informed consent to the procedure utilized. However, even if they did assert an action based upon Berger's failure to obtain an informed consent to the procedure utilized, the trial court properly held that the common law as it existed at the time of Thomas Murphy's surgery did not require informed consent. Under the common law as it existed at the time of Thomas Murphy's surgery, all that was required was that Thomas Murphy be informed in general terms of the intended medical treatment; it was not required that he be informed of the material risks or the practical alternatives. In the present case, it is undisputed that Thomas Murphy was informed in general terms of the intended medical treatment.
Although this Court later recognized the common law doctrine of informed consent in Ketchup v. Howard, that opinion was entered on November 29, 2000, almost eleven months after Thomas Murphy's surgery, and expressly provided that its holding was "purely prospective" for legal reasons explained thoroughly in that decision. The trial court thus correctly ruled that the Murphys do not have a claim based upon Berger's failure to obtain in
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