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 by Dr. Camponovo, stating that the patient was aware of the complications and understood the procedure. Id. at Ex. C.
The second embolization procedure was performed on February 18, 1983. As a result of that procedure, Mrs. Blincoe suffered dysarthria (slurred speech), dysphasia (swelling), and right side dysmetria (weakness). Luessenhop Dep. at 47-48. At the time of her discharge, the medical records show that she had right-sided dysmetria, but speech, gait and eye movement within normal limits. Def's Mot for Summary Judgment, Litt Decl. Ex. B. Mrs. Blincoe was discharged on February 23, 1983. Both Mr. Blincoe and Dr. Luessenhop remember her symptoms as being slightly more severe than described on the discharge summary, but no one asserts that her symptoms reached the magnitude of her problems at the time of her next hospitalization. Luessenhop Dep. at 48-49; Depo. of R. Blincoe at 120. The medical expert testimony by Dr. Luessenhop and Dr. Michelsen indicates that the type of symptoms exhibited by Mrs. Blincoe upon her discharge from Georgetown University Hospital were not unusual after-effects of embolization and usually, but not always, disappear over time. Michelsen Decl. at para. 13, Luessenhop Depo. at 52-54.
On March 4, 1983, Patricia Blincoe visited Dr. Snyder, apparently to complain about her symptoms. As memorialized in his letter dated March 14, 1983, Dr. Snyder observed that Mrs. Blincoe had a "hesitancy of speech with a tendency to dysphasia." Pl. Ex. D.
He also noted:
There was mild weakness and slowing of the right eyelid and right stomal angle. She is able to lift the right arm to shoulder height and above the head, but this is done slowly. She postures with the hand. Rapid movements are slowed, tone is increased. There is some difficulty walking on the right foot. Toe tapping is slowed. Deep tendon reflexes are brisk on the right. Toes are downgoing to plantar stimulation.