Mello v. Cohen

Mello v. Cohen  (97-461); 168 Vt. 639; 724 A.2d 471

[Filed 22-Dec-1998]


                


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 97-461

                            SEPTEMBER TERM, 1998


Michael A. Mello	                }	APPEALED FROM:
                                        }
                                        }
     v.	                                }	Windsor Superior Court
                                        }	
Dr. Craig Cohen and the Center	        }
for Oral and Maxillofacial Surgery	}	DOCKET NO. 5243-96 WrC
	


       In the above-entitled cause, the Clerk will enter:

       Plaintiff appeals the superior court's grant of defendants' summary
  judgment motion in this medical malpractice action based on lack of
  informed consent.  He claims the court erred in ruling that expert
  testimony was required to proceed to trial, thereby denying him his
  constitutional rights to a remedy and to a jury trial.  We affirm.

       Plaintiff asserts that defendant Cohen failed to obtain his informed
  consent before removing a tongue lesion.  Some facts are undisputed. 
  Plaintiff's family physician referred him to Cohen for a consultation
  concerning the lesion.  Upon examination and in light of plaintiff's
  medical history of alcoholism, heavy smoking, and cancer in his family,
  Cohen had strongly suspected the lesion was cancerous.  His suspicion of
  cancer and recommendation for removal and biopsy remained the same after a
  five-day course of antibiotics and a second examination.  The biopsy
  proved, however, that the lesion was not cancerous.  Plaintiff transferred
  his post-operative care to Rocco Addante, another oral surgeon.  From here,
  the parties' allegations diverge.

       According to the plaintiff, Addante prescribed mouth wash when
  plaintiff developed a second tongue lesion, which proved an effective cure. 
  Plaintiff contends that, had he been informed of the prescription
  mouth-wash option, he would never have agreed to the biopsy and would never
  have suffered the resulting pain, constipation, and tongue deformity.  He
  characterizes this case as the right to choose between surgical or
  non-surgical treatments.(FN1)

       Through the course of discovery plaintiff refused to allow Addante to
  produce his medical records for defendants.  Neither did he name Addante or
  anyone else as an expert to support his contention that prescription mouth
  wash constituted a treatment option for the first lesion or that the second
  lesion was even the same or similar to the first one.  The trial court held
  that expert testimony was required to establish what risks and treatment
  alternatives existed in light of the circumstances when the plaintiff
  agreed to the surgery.  Thus, the court granted defendants' motion for
  summary judgment because plaintiff failed to come forward with sufficient
  evidence concerning an element essential to his case.



       We review the grant of summary judgment using the same standard
  applied at the trial court.  Madden v. Omega Optical, Inc., 165 Vt. 306,
  309, 683 A.2d 386, 389 (1996).  Summary judgment shall be granted where
  there is no genuine issue as to any material fact, and the moving party is
  entitled to judgment as a matter of law.  Where, as here, the moving party
  does not bear the burden of persuasion at trial, it may satisfy its burden
  of production by indicating an absence of evidence in the record to support
  the nonmoving party's case.  The nonmoving party then has the burden of
  persuading the court there is a triable issue.  Id.  In this case, the
  trial court held that, after adequate time for discovery, plaintiff failed
  to establish the existence of an essential element of his informed consent
  claim.  See Poplaski v. Lamphere, 152 Vt. 251, 254-55, 565 A.2d 1326,
  1328-29 (1989).  We therefore must determine whether plaintiff met his
  summary judgment burden of demonstrating a triable issue of fact.  Madden,
  165 Vt. at 309, 683 A.2d  at 389.

       Medical malpractice based on informed consent was first recognized in
  Vermont in Small v. Gifford Mem'l Hosp., 133 Vt. 552, 349 A.2d 703 (1975),
  and was subsequently codified by the Legislature.  The statute defines a
  violation of the informed consent doctrine as:

    The failure of the person providing the professional treatment or
    diagnosis to disclose to the patient such alternatives thereto and the
    reasonably foreseeable risks and benefits involved as a reasonable medical
    practitioner under similar circumstances would have disclosed, in a manner
    permitting the patient to make a knowledgeable evaluation.

  12 V.S.A.§ 1909(a)(1).  The statute mandates judgment for defendant at
  the end of plaintiff's case if plaintiff has failed to adduce expert
  medical testimony in support of allegations concerning insufficient
  information.  See 12 V.S.A. § 1909(e).  

       Plaintiff claims that the informed consent statute's expert testimony
  requirement violates the Common Benefit Clause of the Vermont Constitution
  by impermissibly creating a classification that impinges on the
  fundamental, state constitutional right to recover for a personal injury by
  means of a jury trial.  See Vt. Const. ch. I, arts. 4 (remedy), 7 (common
  benefit), and 12 (jury trial).  Additionally, plaintiff attacks the trial
  court ruling on two procedural grounds.  First, he contends that, because
  the court had denied a Rule 12(b)(6) motion to dismiss on the basis that
  plaintiff had stated a cognizable claim, see V.R.C.P. 12, the court then
  erred when it held at the summary judgment stage that he had not come
  forward with sufficient, admissible evidence on all elements of his claim
  to proceed to trial.  Second, he purports reversal is warranted because
  genuine issues of material fact still exist and defendants were not
  entitled to summary judgment as a matter of law.

       In granting the defendants' summary judgment motion, the trial court
  concluded plaintiff would need expert testimony to establish an informed
  consent claim under either the doctrine articulated in Small or under the
  informed consent statute.  Thus, we need not reach plaintiff's facial
  challenge to the informed consent statute because, regardless of the
  statutory mandate to adduce expert testimony in an informed consent action,
  the trial court concluded that the medical issues in this case were
  technical and obscure and consequently necessitated expert testimony.  See
  Small, 133 Vt. at 557.  We agree.  Tongue lesion types and associated
  diagnostic procedures and treatments do not fall within the common
  knowledge of lay fact finders. 

       Inasmuch as plaintiff also appears to argue that the court's ruling,
  as opposed to the statute itself, erroneously deprived him of these same
  constitutional rights, we have previously noted that,



  where a plaintiff has an available remedy at law but fails to prove an
  element of his or her case, it is plaintiff's own failure, rather than
  constitutionally suspect action by the trial court, that forecloses a
  remedy.  See Mobbs v. Central Vt. Ry., 150 Vt. 311, 316-17, 553 A.2d 1092,
  1096 (1988) (affirming, against constitutional challenge, directed verdict
  for defendant where plaintiff failed to prove damages).  Thus, given that
  the court correctly determined plaintiff must produce expert testimony to
  meet his burden of production, it was the plaintiff's own actions, not the
  operation of the informed consent statute, that curtailed a remedy. 
  Moreover, just as the right to a remedy under Article 4 does not render
  directed verdicts unconstitutional or relieve plaintiff of his burden of
  production, neither does the right to a jury trial under Article 12 remove
  threshold determinations of legal issues from the province of the court. 
  State v. Ryea, 153 Vt. 451, 456, 571 A.2d 674, 677 (1990).

       To the extent that plaintiff mounts distinct procedural attacks on the
  grant of summary judgment, they evince a basic misunderstanding of 
  plaintiff's burden.  He conflates the different standards of production
  pertaining to a motion to dismiss for failure to state a claim and a motion
  for summary judgment.  At the motion to dismiss stage, a plaintiff must
  merely show a set of circumstances or facts exist that, if proven, would
  entitle him to relief on the claim alleged in the complaint.  See
  Association of Haystack Property Owners, Inc. v. Sprague, 145 Vt. 443, 446,
  494 A.2d 122, 124 (1985).  By contrast, to defend against a summary
  judgment motion, a plaintiff cannot rely on conclusory allegations or mere
  conjecture.  Even though a plaintiff's allegations present a cognizable
  claim sufficient to withstand a motion to dismiss, the same allegations may
  well prove insufficient to withstand a motion for summary judgment.  See 5A
  C. Wright & A. Miller, Federal Practice and Procedure § 1356, at 298 (2d
  ed. 1990) (distinguishing test of formal sufficiency of complaint on motion
  to dismiss from summary judgment, which tests merits of claim).  This is
  precisely what occurred in this case.

       Although plaintiff is correct that facts remain in dispute, he has
  failed to demonstrate that the dispute is a genuine one over material
  facts.  See, e.g., Billado v. Parry, 937 F. Supp. 337, 341 (D. Vt. 1996)
  (defining genuineness and materiality).  Once defendants indicated the lack
  of expert testimony evidence in the record to support plaintiff's informed
  consent claim, it became plaintiff's burden to offer specific facts, beyond
  the merely speculative, to support a verdict in his favor.  See Samplid
  Enters., Inc. v. First Vermont Bank, 165 Vt. 22, 25, 676 A.2d 774, 776
  (1996).  Nothing in the record supports plaintiff's bald assertions that
  prescription mouth wash constituted a treatment option for his first tongue
  lesion.  Further, we note that plaintiff rests his entire case on a
  specious juxtaposition of so-called alternative treatments.  The biopsy,
  although perhaps concomitantly a treatment, was undisputedly part and
  parcel of the diagnostic process, unlike the purported "mouthwash option."
  We hold that plaintiff's own conjectures, formulated through the benefit of
  hindsight, were insufficient as a matter of law to demonstrate what the
  risks and benefits of available diagnostic procedures and treatments were
  in light of the circumstances existing at the time he consented to the
  biopsy of the tongue lesion. 

       Since we conclude that the trial court properly held expert testimony
  was required in this case to establish plaintiff's informed consent claim,
  the Court need not reach his conflict-of-interest argument.  Plaintiff
  conceded as much at oral argument.






	Affirmed.	 

	BY THE COURT:


	_______________________________________
	Jeffrey L. Amestoy, Chief Justice

	_______________________________________
   	John A. Dooley, Associate Justice

	_______________________________________
   	James L. Morse, Associate Justice

	_______________________________________
	Denise R. Johnson, Associate Justice
	
	_______________________________________
	Marilyn S. Skoglund, Associate Justice



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                                  Footnotes



   FN1.  In his reply and at oral argument, plaintiff also claimed that Cohen
  failed to inform him about the extent of tissue that would be removed
  during the biopsy.  We decline to address this claim as he failed to
  preserve it.  See Vermont Nat'l. Bank v. Dowrick, 144 Vt. 504, 509, 481 A.2d 396, 399 (1984).