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Smith v. Portera5/27/2005
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Dr. Portera argues that this is an appropriate case for summary judgment. He contends that when Ms. Smith signed the consent form at Memorial Hospital on August 14, 2000, she thereby authorized him to perform the excision in question. In support of this argument, Dr. Portera references that sentence in the consent form which states, "I REQUEST AND AUTHORIZE my physician, or other physicians who may be assisting to perform such additional surgical procedures as are indicated by good medical practice which they deem to be in my best interest by exercise of their medical judgment." Dr. Portera contends that this language authorized him to perform a surgical procedure different from the procedures originally scheduled and that it shows that Ms. Smith was aware that he might do so. Dr. Portera asserts that, while the plaintiff in a medical battery case is typically not required to submit expert testimony to sustain the argument that there was no consent, this case presents the questions of whether the excisional biopsy was "indicated by good medical practice" and in the "best interest" of the patient. Dr. Portera notes, and the record confirms, that Ms. Smith does not dispute the fact that the excisional biopsy was indicated by good medical practice. Dr. Portera further notes that he attested in his affidavit that the excisional biopsy was in Ms. Smith's best interest and this placed the burden upon her to present expert proof that the excisional biopsy was not in her best interest. Dr. Portera argues that, in light of Ms. Smith's failure to present such expert proof, he was properly granted summary judgment.
While we do not necessarily disagree with Dr. Portera's analysis as far as it goes, it disregards another provision of the consent form which presents an additional prerequisite to the performance of any surgical procedures other than those originally scheduled. We refer here to that sentence in the form which immediately precedes the sentence cited by Dr. Portera. This preceding sentence states, "I understand that during the course of the operation/procedure unforseen conditions may be discovered which require an extension of the original procedure or a different procedure from that described above." (Emphasis added.) The paragraph, in which this sentence and the sentence referenced by Dr. Portera appear, consists solely of these two sentences and we are, therefore, compelled to construe them in conjunction with one another. It is our determination that the second sentence relates back to the first and that the words "such additional procedures" refer exclusively to "an extension of the original procedure or a different procedure" as required by the discovery of "unforseen conditions." Accordingly, it is our determination that the consent form signed by Ms. Smith only authorizes an extension of the originally scheduled procedure or a procedure different from the originally scheduled procedure if such extension or different procedure is 1) "indicated by good medical practice", 2) in the patient's "best interest" and 3) required by an "unforseen condition."
We deem the question of whether the excisional biopsy performed by Dr. Portera was required by an unforseen condition to be a question of material fact which remains unresolved and renders summary judgment improper in this case. Ms. Smith's affidavit indicates that the tissue excised by Dr. Portera was a decubitus ulcer, or pressure sore, resulting from her paralysis and she attests that it was not an unforseen condition. On the contrary, she attests, both she and Dr. Portera were aware of the condition before her surgery on August 14, 2000, and had discussed it on several occasions over the years:
Regarding this plac
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