The opinion of the court was delivered by: PRATT
John H. Pratt, United States District Judge.
This action arises from an operation performed by the defendant, Dr. Alfred Luessenhop, on plaintiff Patricia Blincoe in February, 1983. In the complaint, Mrs. Blincoe and her husband allege that Dr. Luessenhop failed to perform the operation with the requisite care, and that he failed to obtain Mrs. Blincoe's informed consent to the procedure.
Defendant has moved for summary judgment on both the "informed consent" theory and the theory of failure to meet the standard of care. Plaintiffs oppose entry of summary judgment on the "informed consent" theory, but concede that they have no evidence to show that Dr. Luessenhop did not perform the operation with the requisite care. Because we conclude that summary judgment in favor of defendant is also appropriate on the informed consent theory of recovery, we grant summary judgment for defendant as to all counts of the complaint.
Patricia Blincoe suffers from a condition called an arteriovenous malformation (AVM). Def. Stmt. of Material Facts As to Which There is No Genuine Issue (Def. Facts) at para. 1. An AVM is the result of a congenital defect of the blood vessels in which the arteries join directly with the veins, without first passing through the capillaries. Id. at para. 3. When the blood does not pass through the capillaries, the arterial blood pressure is not dissipated prior to the blood entering the veins. Id. This elevates the pressure on the walls of the veins, which enlarge, forming the AVM. Mrs. Blincoe's AVM was located in the posterior fossa of the brain, an area which includes the cerebellum and the brain stem. Id. at para. 1.
Because of the location of Patricia Blincoe's AVM, she was subject to several risks:
1. the AVM could hemorrhage, causing a "stroke";
2. the increased size of the AVM, and the pressure resulting therefrom, may damage surrounding brain tissue;
3. the AVM may trigger seizures by irritating the surrounding brain tissue;
4. because of the enlarged veins and reduced resistance to blood flow through the AVM, the flow of blood through the AVM will increase, diverting blood away from nearby vessels feeding nearby tissue.
Id. at para. 4.
Prior to the time Mrs. Blincoe entered Dr. Luessenhop's care, she had already suffered two hemorrhages of her AVM. The first occurred in 1967 when she was living in Charlottesville, Virginia, and the second occurred in 1982, when she was residing in Raleigh, North Carolina. Id. at paras. 6-7. In May, 1982, plaintiffs moved to the Washington area. At that time, Mrs. Blincoe came under the care of Dr. Roger Snyder. Id. at para. 9. As of May 11, 1982, Dr. Snyder reported that plaintiff had, inter alia, a slight hesitancy to speech and a slightly unsteady walk. Def's Mot. for Summary Judgment, Litt Decl. Ex. E. On July 7, 1982, Mrs. Blincoe was again seen by Dr. Snyder, who was contemplating referral to Dr. Luessenhop. Id. Dr. Snyder again saw plaintiff in November, 1982 and recommended additional tests. Id. He also apparently raised the possibility of embolization with her at that time.
In December, 1982, plaintiff saw Dr. Luessenhop for the first and only time prior to her hospitalization for the embolization procedures.
At that time, Dr. Luessenhop claims that he informed both plaintiffs of all the risks and benefits of the embolization procedure and left the decision to the plaintiffs. Mrs. Blincoe does not dispute that the decision was left to her, but states that Dr. Luessenhop told her only that the procedure would be a "piece of cake." Depo. of P. Blincoe at 50-51, 58; Depo. of R. Blincoe at 169. For the purposes of the motion for summary judgment, we assume that Dr. Luessenhop did not explain the risks and benefits to the Blincoes at this meeting. In addition, it must be assumed that Mrs. Blincoe expressed her desire not to have the AVM surgically removed. Depo. of R. Blincoe at 169; Dep. of P. Blincoe at 51-52.
On February 15, 1983, Patricia Blincoe was admitted to Georgetown University Hospital for the embolization procedure. Def's Mot for Summary Judgment, Litt Decl. Ex. A. Patricia Blincoe does not recall the details of her visit, except for a single visit by Dr. Luessenhop during the interval between the first and second embolization procedures. Depo. of P. Blincoe at 65-69. Her husband was not present at the hospital between the time she was admitted to Georgetown University Hospital and the evening after the first embolization procedure. Dep. of R. Blincoe at 89, 94. Prior to her first embolization procedure, Mrs. Blincoe signed a consent form dated February 15, 1983. Def's Mot for Summary Judgment, Camponovo Decl. Ex. B.
In addition, a notation in her medical record, signed by Dr. Camponovo, states that the procedure and complications were explained to Mrs. Blincoe. Id. at Ex. A. The first embolization procedure was performed on February 16, 1983. Patricia Blincoe suffered no after-effects from the first embolization, other than discomfort.
Between the first and the second embolization procedures, plaintiffs assert that Dr. Luessenhop told Mrs. Blincoe that if a second embolization procedure was done, that Mrs. Blincoe would "never have to worry about [the AVM] again." R. Blincoe Depo. at 94. Again, this must be assumed to be true. On February 17, 1983, Mrs. Blincoe signed another consent form. Def's Mot for Summary Judgment, Camponovo Decl. Ex. D. The medical record for that date also bears a note, signed ...