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Smith v. Portera5/27/2005
e which was on my upper leg and not part of my genitalia, this was something Dr. Portera had seen and we had discussed on several occasions. . . . After reviewing his records, I am convinced the first time we discussed it was May 19, 1986. . . . I do not remember discussing the spot with Dr. Portera again for several years. . . . After reviewing his records, I believe the next time there was a discussion about it was May 23, 1995. . . . The spot had flared up, and we discussed what to do. . . . After reviewing Dr. Portera's records I believe the next time there was discussion about this spot was April 16, 1996. . . . At that time I asked Dr. Portera to prescribe a special cushion for me to keep pressure off it. . . . The next time I believe there was some discussion with Dr. Portera about the pressure sore was April 22, 1997. . . . On this date, he again prescribed for me the special cushion to help me deal with it. . . . Over the years, this pressure sore would flare up and calm down. . . . I was not concerned about it because I had used various herbal solution to treat it and it usually resolved itself. . . . Dr. Portera was aware of me using this solution. . . . Before he cut it out, I really did not have too much trouble getting it to heal up when it flared up. . . . I did not consider it a problem. . . . Had he asked me I would not have authorized him to cut it out, especially knowing now how severe that problem would have been. (Numbering in original omitted.)
Even if it is agreed that, in order to avoid summary judgment, Ms. Smith was required to present expert testimony that the added excisional biopsy was not in her best interest, the same cannot be said with regard to whether that surgery was required as a result of an unforseen condition. Ms. Smith's testimony that she and Dr. Portera had discussed the condition on prior occasions is sufficient to create an issue of fact as to whether the condition was unforseen and, therefore, whether she gave consent for the additional surgery.
As we have noted, the motion for summary judgment filed by Dr. Portera and granted by the trial court contends that Dr. Portera had express consent to perform the excisional biposy on Ms. Smith and that there is no genuine issue of material fact in that regard. Ms. Smith's response to this motion argues that she did not expressly consent to the excisional biopsy and that there is no genuine issue of material fact in that regard. Ms. Smith further contends that, while there is no genuine issue as to whether there was express consent, there is a genuine issue of material fact as to whether there was implied consent. After carefully reviewing the record in this case, we have concluded that a genuine issue of material fact remains as to whether Ms. Smith consented to the excisional biopsy. Although we are urged by Ms. Smith to distinguish between "express consent" and "implied consent", we do not find such distinction to be of consequence in this case, the salient question being whether Dr. Portera had consent - not whether such consent was express or implied.
For the reasons stated herein, the judgment of the trial court is vacated and the cause is remanded for trial on the merits. Costs on appeal are adjudged against Charles A. Portera, M.D.
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