Opinion
No. C99-1012 MJM.
January 4, 2001.
OPINION and ORDER
Plaintiffs June and Donald Grass brought the present suit against Defendants Dr. David S. Field and Westside Orthopaedics alleging negligence, breach of express warranty, failure to obtain informed consent, and res ipsa loquitur; requesting damages for, among other things, lack of consortium. (Doc. No. 1). In an Order dated June 1, 2000, this Court granted Defendants' initial motion for summary judgment as to Plaintiffs' claims of negligence, failure to obtain informed consent and res ipsa loquitur. (Doc. No. 37). Defendants now move for summary judgment on Plaintiffs' remaining substantive claim, breach of express warranty, and loss of consortium based on that substantive claim. (Doc. No. 46). Plaintiffs submitted a brief in resistance to Defendants' motion for summary judgment, and Defendants filed a reply. (Doc. Nos. 49 and 54). Additionally, both parties have filed statements of material fact in support of their positions. (Doc. Nos. 48 and 50).
Originally Plaintiffs named Finley Hospital as an additional Defendant. (Doc. No. 1) After Plaintiffs consented to an order dismissing Finley, this Court dismissed the hospital as a Defendant in an Order dated May 23, 2000. (Doc. No. 36)
Plaintiffs characterize their claim for loss of consortium as an additional cause of action. Success on that claim, however, is contingent on the success of their substantive claims.
STANDARD FOR SUMMARY JUDGMENT
"Under Rule 56(c), summary judgment is proper `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (quoting Fed.R.Civ.P. 56); see also Krentz v. Robertson Fire Prot. Dist., 228 F.3d 897, 902 (8th Cir. 2000).
When considering a motion for summary judgment a court must view all the facts in the light most favorable to the nonmoving party and give the nonmoving party the benefit of all reasonable inferences that can be drawn from those facts. See Matshusita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Rabushka, ex rel. U.S. v. Crane Co., 122 F.3d 559, 562 (8th Cir. 1997), cert. denied, 523 U.S. 1040 (1999).
When bringing a motion for summary judgment, "[p]rocedurally, the movant has the initial responsibility of informing the district court of the basis for its motion and identifying those portions of the record which show a lack of a genuine issue." Hartnagel, 953 F.2d at 394 (citing Celotex, 477 U.S. at 323). Once the moving party has carried its burden under Rule 56(c), the nonmoving party must do more than simply show there is "some metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586; see also Herring v. Canada Life Ins. Co., 207 F.3d 1026, 1029 (8th Cir. 2000). It must go beyond the pleadings, and by affidavits, or by the "depositions, answers to interrogatories, and admissions on file," designate "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e).
Turning to the present case, the Court will state the facts in the light most favorable to the nonmoving party and draw all reasonable inferences in their favor to determine if there are genuine issues of material fact for trial.
SUMMARY OF FACTS
Reference is made herein to Plaintiffs' exhibits attached to their statement of material facts (cited as "PX___"); Defendants' exhibits attached to their statement of material facts (cited as "DX ___"); and the Plaintiffs' Statement of Material Facts (cited as "Pls. SOF").
On or about November 20, 1996, December 10, 1996 and April 8, 1997, June M. Grass was examined by Dr. David S. Field for evaluation of a painful right wrist and right index finger. (PX D and I). After unsuccessful attempts to remedy the pain through medication, Dr. Field suggested that Ms. Grass undergo surgery. (PX D). That suggestion came at the April 8th exam. (PX D).
According to Ms. Grass' deposition testimony, during the April 8th examination, Ms. Grass inquired about a surgery called `proximal row carpectomy' because she remembered that her husband had success with that particular procedure. (PX A, p. 27). Dr. Field explained this surgery was no longer available and suggested instead two alternative medical procedures: (a) an excision of the carpal navicular bone and removal of ostephoytes from the distal radius in a four corner arthrodesis with a bone graft of her wrist; (b) and an excision of the middle phalanges/proximal phalanges ("PIP") joints with a Swanson antroplasty implant in her right index finger. (PX. D; A, p. 27). Also during that exam Ms. Grass questioned whether Dr. Field could simply "scrape the bone spur off her finger" in lieu of surgery. (PX A, p. 27). He explained that he could not because the problem was arthritic and suggested that the excision of her PIP joint and joint implant in her index finger was "the way to go" to eliminate the pain. (PX A, p. 27, 46).
Additionally at the April 8th examination, Ms. Grass maintains that Dr. Field called the antroplasty implant a "joint" which led her to believe that it provided more flexion. (PX. A, p. 85). Ms. Grass contends that Dr. Field explained that the implant would reduce flexion in her wrist by only 10 percent, and she would lose some degree of flexion in her index finger; that is, she would not be able to bend her finger down to touch her palm, but that she would be able to come very close to touching her palm with her index finger. (PX A, pp. 27-29).
Ms. Grass had many concerns and apprehension about the possibility of surgery:
A. I didn't want that joint taken out. I just — you know, you'd always heard about people with hip joints, you know, and at that point I thought it would be a joint-joint. He did not show me a picture of it. He just said it would be a joint, you know, and I thought it would be, you know, like people get hips, these metal joints that bend. And I really didn't want to lose that joint, you know. I — I just wanted him to take the bone spur off. I said that a number of times. Can't you just take that bone spur off, just scrape it off.
Q. Okay. And he told you he didn't feel that that could be done?
A. He said — he said the joint was the way to go to get rid of the pain.
(PX A, 29-30).
A. I did not want to lose that joint.
Q. So you were concerned even though it was his opinion that that was the way to go that maybe that wasn't the way to go?
A. I guess I was probably more concerned, you know, that he told me about this proximate row thing, you know, that he said they don't do that anymore, and I guess I really didn't believe him, but yet I thought, okay, this guy's the expert, he knows what he's doing, you know, I'm going to trust his judgment. And I — I just wanted to get rid of the pain.
Q. And the day before — a couple days before the surgery, you were still apprehensive about whether or not you should have that implant put in your finger, correct?
A. I just wanted him to take the bone spur off, and it looked like this, like a little nodule.
Q. Because you were concerned that maybe you wouldn't have a good result in your finger?
A. Yeah, probably.
Q. And you really wanted to have a good result with your finger?
A. I guess I just thought it would really hurt to have, you know, the surgery, you know. I remember my husband had a lot of pain after he had his surgery, and I — and I think I even conveyed that to Dr. Field and that's probably why he kept me in the hospital longer, you know because I knew that he did have a lot of pain, and I just — I was really scared about the pain.
(PX A, pp. 91-92).
With regard to the pain Ms. Grass was experiencing prior to the surgery, she contends that Dr. Field explained the implant would eliminate that pain. (PX A, pp. 27, 29, 30, 32, and 84). When asked during her deposition testimony whether Dr. Field ever guaranteed any kind of absolute success in surgery, Ms. Grass replied: "He told me that [the implant] would be the way to get rid of the pain." (PX A. p, 30).
On April 22, 1997, Ms. Grass signed a Consent for Treatment and Authorizations Form to perform the surgery suggested by Dr. Field. It stated, in relevant part:
The patient understands that the practice of medicine and surgery is not an exact science and acknowledges that no guarantees have been made to him /her regarding the results of examination or treatments in the hospital.
(DX 2). Ms. Grass understood the contents of the Consent Form, including the language above, when she signed the form. (DX 1, pp. 42-44). And again on April 25, 1997, immediately prior to her surgery, Ms. Grass signed a consent form which stated in part:
. . . I understand the nature of the procedure(s), alternative means of therapy, and possible risks and complications.
(DX 3; 1, pp. 45-46).
Ms. Grass testified that she relied on Dr. Field's specific representations concerning the outcome of the surgical procedures in consenting to the surgery; in short, she "trusted his judgment" in the matter as an expert. (PX A, p. 31). Ms. Grass maintains that she would not have consented to the surgery had Dr. Field not told her that the pain would be eliminated and that she would lose very little function in her finger and wrist. She testified as follows:
Q. . . . did he — did Dr. Field not also make a statement to you with respect to the implant being the way to go with respect to eliminating the pain in your finger?
A. Yes.
Q. And did you interpret Dr. Field to be conveying that to you as a potential outcome from the surgery that he was presenting to you?
A. Exactly. Or I would never have consented to it. If I thought for one minute that the pain would not decrease, I would not have had the surgery.
Q. Was the pain one of your primary concerns with respect to your consent to the surgery.
A. Yes.
Q. Elimination of that pain?
A. Yes.
(PX A, p. 84).
Q. Was it your understanding from the representations made from Dr. Field that you would have flexion following the surgery?
A. Yes.
Q. And is that what you were testifying about that your understanding was, you would only lose about 10 percent of that flexion ability?
A. On my wrist.
Q. That's on the wrist. I'm talking about the finger. Did you have an understanding on the finger?
A. I would probably — I would have like, oh, gosh, maybe 70 percent flex.
Q. Now, I'm asking you what your understanding was prior to the surgery with respect to flexion in your finger.
A. Okay. He did not — he just showed me.
(PX A., p. 86).
Q. Did you have an understanding from conversations with the doctor that you would not lose your entire range of motion or flexion with your finger?
A. Yes. I —
Q. Had — I don't mean to interrupt your answer. Is there more?
A. I thought the finger would be as good as new. I mean, in the fact of function, that, you know, I could use my spray cans. You know, I didn't even ever once consider that I could not — that I would not have strength in that finger.
Q. And where did you get that sense or understanding from?
A. When he told me it would be a joint.
Q. And "he" is Dr. Field; is that correct?
A. That's right, he's the expert.
Q. And did you understand that from Dr. Field to be in the form of a — guarantee is probably not a correct word, but did you understand that to be a most likely result or a most probable result from this surgery that he was proposing?
A. Absolutely, Bruce, or I would not have had that surgery. I would have lived with what I had.
(PX A, pp. 87-88).
Ms. Grass underwent surgery on April 25, 1997 at Finley Hospital in Dubuque, Iowa. (DX 4). The initial surgery performed by Dr. Field left Ms. Grass' fingers on her right hand, all of them (not only the index finger) essentially useless and extremely painful. (Pls. SOF § 12). As opposed to the 10 percent reduction in flexion in her wrist that Dr. Field explained would occur, Ms. Grass had only 10 percent flexion in her wrist after the surgery. (PX A, p. 28). The implant Ms. Grass believed to be a joint was a spacer that does not bend or flex. (PX A, p. 85). Subsequent carpal tunnel injection and a carpal tunnel release surgical procedure performed by Dr. Field did not relieve Ms. Grass' pain and stiffness. (PX E; F; G; and H).
A different surgeon, Dr. Von Gillern, subsequently attempted to reduce the pain and stiffness in Ms. Grass' fingers and wrist by performing another surgery. (PX E and F). During that procedure, Dr. Von Gillern noted that the implant placed in Ms. Grass' index finger by Dr. Field was the incorrect size and that it had not been correctly implanted. (PX E and F).
Notwithstanding the surgery performed by Dr. Von Gillern, Ms. Grass lost substantially all flexion of the index finger as well as the long finger of her right hand. (PX B, pp. 4-5; E; F; G and H; A, pp. 88-89). A final surgery by Dr. Leonard Bodell has given Ms. Grass some relief from pain and increased range of motion. (PX A, pp. 69-70, 71-72, 74-76).
DISCUSSION
Plaintiffs maintain that Dr. Field's representations about the outcome of the surgery amounted to an express warranty. Because those representations turned out to be incorrect, Plaintiffs contend Dr. Field breached that express warranty and therefore is liable for Ms. Grass' resulting injuries.
"[A] physician does not by undertaking treatment impliedly warrant a cure or guarantee the best possible result." Perin v. Hayne, 210 N.W.2d 609, 615 (Iowa 1973) (citing Whetstine v. Moravec, 291 N.W. 425, 433 (1940)). In absence of a special contract, courts generally find "a physician does not warrant the success of his treatment or operation, nor even that beneficial results will occur, but only that he [or she] possesses, and will carefully apply, such professional skill and learning as are ordinarily possessed by the general practitioner in the locality." Recovery Against Physician on Basis of Breach of Contract to Achieve Particular Result or Cure, 43 A.L.R.3d 1221 (1972); see also Perin, 210 N.W.2d at 615 (stating "[a]s a neurosurgeon, defendant impliedly warranted he possessed and would apply that degree of skill, care and learning ordinarily possessed and exercised by other neurosurgeons in similar circumstances"); McGulpin v. Bessmer, 43 N.W.2d 121, 128 (1950).
Nevertheless, the Iowa Supreme Court has recognized that "a physician may bind himself [or herself] in a given situation to perform a cure or obtain specific results by treatment or an operation." Perin, 210 N.W.2d at 615 (citing Physicians, Surgeons and Other Healers, 61 Am.Jur.2d § 149 at 279 (1981); and 43 A.L.R.3d 1221).
The gravamen of Plaintiffs' breach of express warranty claim is: (1) Dr. Field offered his surgical services and expressly warranted to Ms. Grass that certain results be obtained from the surgeries by representing to her that: the PIP joint excision and implant would eliminate Ms. Grass' pain; the implant was a "joint" that would permit bending of the finger; Ms. Grass would be able to bend her index finger almost normally and she would lose very little flexion in her finger; Ms. Grass would lose only about 10 percent flexion of her right wrist; her wrist would be pain free; and the surgery was the "way to go" to eliminate Ms. Grass' pain in her finger and wrist; (2) that in reliance on these representations, Ms. Grass accepted the offer; (3) in breach of the express warranties, the specific results described by Dr. Field did not result from the surgeries; and (4) the breach of warranties was a proximate cause of Ms. Grass' damages.
Defendants argue only that Dr. Field's alleged representations, even viewed in the light most favorable to Ms. Grass, do not rise to a level that a reasonable jury could find that they constitute a warranty.
The issue of express warranty has not been widely addressed by the Iowa courts. The most prominent case is Perin v. Hayne, supra. In Perin, the plaintiff suffered from a voice impairment after back surgery, which was unrelated to her original diagnosis. See id. at 615. The plaintiff alleged that the physician led her to believe that the surgery would result in her being able "to live a real normal life" with regards to her back problem. See id. at 616. The doctor however, did not make any promises that she would be cured or that there could be no complications from the surgery. The Perin court found these assertions were insufficient to state a claim of express warranty. See id.
Like the plaintiff in Perin, Ms. Grass contends that Dr. Field's representations led her to believe that after the surgery she would no longer have pain, that she would have 90 percent mobility in her wrist and her flexion in her finger would be only slightly diminished. However, Dr. Field never expressly guaranteed these results nor did he guarantee a cure for her wrist and finger. Instead Dr. Field said, for example, the surgery was the "way to go" — a statement more appropriately described as an opinion than a warranty. (PX A, p. 27). Nor could Plaintiffs' other allegations be characterized as language used to constitute a warranty — Dr. Field "led" her to believe the implant would provide more flexion (PX A, pp. 27 and 85); Dr. Field "assured" Ms. Grass that she would lose very little flexion (PX A, pp. 28-29); Dr. Field "convinced" her that the implant would eliminate pain (PX A, 27, 29, 30, 32, 84); and Dr. Field "represented" to Ms. Grass that she would only lose 10 percent flexion in her wrist. Like the court in Perin, this Court finds these statements are more appropriately viewed as "therapeutic reassurances" but do not rise to the level of warranties. See, e.g., 210 N.W.2d at 616.
Plaintiffs rely heavily on Gulimet v. Campbell, 188 N.W.2d 601 (Mich. 1971), a case cited by the Perin court for the proposition that in some instances a question of fact may be generated as to whether the doctor has warranted a cure or a specific result. See Perin, 210 N.W.2d at 616. In Gulimet the court did find the plaintiff had generated a material factual dispute on this issue. There, however, the physician allegedly stated:
Defendants argue that Gulimet has essentially been overruled by the Michigan legislature and therefore has no bearing on this case. This, however, is of no consequence because Michigan case law's precedential value is contingent on the extent to which it is relied upon by the Iowa Supreme Court. Because it is the analysis of the Gulimet court that the Iowa Supreme Court recognized in its Perin ruling, see 210 N.W.2d at 616, the subsequent actions of the Michigan legislature are immaterial. Accordingly, the Court will compare the factual allegations of the plaintiff in Gulimet to those in the present action to determine if those made here generate a question of fact for the jury, as did the allegations in Gulimet.
`Once you have an operation it takes care of all your troubles. You can eat as you want to, you can drink as you want to, you can go as you please. Dr. Arena and I are specialists, there is nothing to it at all — it's a very simple operation. You'll be out of work three to your weeks at the most. There is no danger at all in this operation. After the operation you can throw away your pill box. In twenty years if you figure out what you spent for Maalox pills and doctor calls, you could buy an awful lot. Weigh it against an operation.'188 N.W.2d at 606.
Assertions that an operation will "tak[e] care of all your troubles" and "[t]here is no danger at all in this operation" are significantly more akin to guarantees or warranties than Ms. Grass' allegations that Dr. Field "led" her to believe the implant would not impede flexion in her wrist, "convinced" her that the surgery would alleviate the pain, or told her that surgery was "the way to go." Moreover, Ms. Grass admitted in her deposition testimony that she "really didn't believe [Dr. Field], but yet [she] thought, okay, this guy's the expert, he knows what he's doing, you know, [she was] going to trust his judgment," emphasizing that she understood this was Dr. Field's opinion about what he believed to be the best approach, and not a guarantee for a cure. In fact, Plaintiffs' counsel even hesitated when referring to Dr. Field's alleged representations as "guarantees" questioning — "[a]nd did you understand that from Dr. Field to be in the form of a — guarantee is probably not a correct word, but did you understand that to be a most likely result or a most probable result from this surgery that he was proposing?" (PX A, pp. 87-88). Finally, Ms. Grass' contention that Dr. Field created an express warranty about the outcome of the surgery is particularly suspect in light of her signing a consent form which stated "that the practice of medicine and surgery is not an exact science and [the patient] acknowledges that no guarantees have been made to him /her regarding the results of examination or treatments in the hospital," and later testifying that she understood the contents of the form and their meaning.
For these reasons, the Court finds Plaintiffs' allegations would not support a jury finding that Dr. Field promised or warranted a particular outcome to her surgery.
CONCLUSION
Summary judgment is appropriate against a party who fails to make a showing sufficient to establish that there is a genuine issue for trial about an element essential to that party's case, and on which that party will bear the burden of proof at trial. See Celotex, 477 U.S. at 322-23. Because Plaintiffs have failed to establish a genuine issue of fact about an essential element of their claim, namely that Dr. Field provided an express warranty about the outcome of Ms. Grass' surgery, their claim of express warranty fails as a matter of law. As Plaintiffs' claim of consortium was contingent on the success of their express warranty claim, it also fails as a matter of law. Defendants' summary judgment on Plaintiffs' remaining claims are granted.
ORDER
Accordingly, IT IS ORDERED:
Defendants' Motion for Summary Judgment is GRANTED. (Doc. No. 46)