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06/11/91 ERNEST GRAFF v. MARTIN M. MALAWER

June 11, 1991

ERNEST GRAFF, APPELLANT
v.
MARTIN M. MALAWER, M.D. AND CHILDREN'S HOSPITAL NATIONAL MEDICAL CENTER, APPELLEES



Appeal from the Superior Court of the District of Columbia; Hon. Harriett R. Taylor, Trial Judge

Ferren and Farrell, Associate Judges, and Belson, Associate Judge, Retired.*

The opinion of the court was delivered by: Belson

Appellant Ernest Graff appeals the trial court's entry of summary judgment in favor of appellees, Martin M. Malawer, M.D., and the Children's Hospital National Medical Center. *fn1

Graff's principal contentions are that a hemipelvectomy (leg amputation) was performed on him without his informed consent and that the record evidence shows material issues of fact regarding the issue of informed consent. We affirm.

I.

On September 12, 1985, Graff, a fifty-eight year-old male, consulted George P. Bogumill, M.D., an orthopedic surgeon at Georgetown University Hospital, regarding a painful mass in his left groin. Dr. Bogumill examined Graff and diagnosed chondrosarcoma of the left pubic area, a cancerous condition. Dr. Bogumill recommended resection, advised Graff that he could possibly have both legs amputated, and referred him to Martin M. Malawer, M.D., an expert in hemipelvectomies, for consultation related to surgery. On October 15, 1985, Graff consulted with Dr. Malawer and Dr. Willie Thompson, who then served as a fellow under Dr. Malawer in Orthopedic Surgical Oncology, at Dr. Malawer's office in the Children's Hospital National Medical Center. Following a thorough examination and various studies of the lesions, it was determined that Graff suffered from multiple hereditary osteochondromas which had a twenty percent chance of malignant degeneration during his lifetime.

Dr. Malawer planned to perform a surgical procedure on Graff's left pelvis in an effort to save his leg, but with the possibility of a hemipelvectomy, and discussed with Graff the proposed surgical procedures. At that time, Graff appeared to Dr. Malawer to understand the need for the performance of the extensive surgery.

On October 30, 1985, Graff was admitted to the Washington Hospital Center. Graff was driven to the Washington Hospital Center by his brother Ronald A. Graff. During the drive, they discussed the procedures that would be performed and the possibility that Graff might have his leg amputated, although they referred to this as something that might occur at a future time. This conversation was memorialized in writing by Ronald Graff in a letter dated July 3, 1987, addressed to Dr. Malawer.

At 9:30 p.m. that evening, Graff signed an Operative Consent Form and two disposal forms authorizing the Disposition of body parts after surgery. *fn2 He was not under medication at that time and did not receive any medication until 10:00 p.m. The following day, October 31, 1985, he underwent surgery. Through a frozen section biopsy of the lesions during surgery, Dr. Malawer discovered that the tumors were a high-grade chondrosarcoma. Dr. Malawer concluded that a safe limb-sparing procedure could not be performed and that he would have to proceed with the hemipelvectomy. He conversed with Dr. Cohen, a general surgeon, about the size of the tumor and its proximity to the bowel and bladder. He concluded that the tumor was unresectable and the hemipelvectomy was performed.

During Graff's post-operative hospital care he never complained about the amputation of his leg. Moreover, although Graff did complain to Dr. Thompson that one of his testicles was removed, Graff stated that he knew his leg would be amputated but not that he would be castrated. Dr. Thompson explained to Graff that he had not been castrated and that any appearance that he had been was the result of swelling from the surgery. Although Graff complained on numerous occasions to the nurses of phantom leg pains, he never complained that he had not consented to the amputation of his leg. In fact, the record demonstrates that Graff's first complaint that his leg had been removed without his consent occurred approximately one and one-half years following his surgery and was made to Dr. Malawer. Graff never complained to Dr. Bogumill about his leg having been amputated without his consent until May 4, 1988, nearly two and one-half years after appellant's surgery.

Graff filed a complaint alleging negligence, medical malpractice, lack of informed consent, and intentional tort arising from the amputation of his left leg. The trial court dismissed Graff's intentional tort claim. Because Graff did not identify any expert witnesses and res ipsa loquitur did not apply, the only issue of negligence that remained was the one presented on this appeal, whether appellees negligently failed to obtain Graff's informed consent. Appellees filed a motion for summary judgment and contended that in light of the evidence, there was no genuine issue of material fact for submission to a jury. The trial court granted appellees' motion and ruled that there was no genuine issue as to any material fact bearing upon the crucial question of whether Graff had consented to surgery with the knowledge that it might include amputation of a leg.

II.

Graff contends that the hemipelvectomy was performed without his informed consent because he was unaware prior to surgery that if the surgical effort to spare his limb should prove unsuccessful, the hemipelvectomy would be performed during the same operation. He further argues that it was not he who made the decision to amputate the leg, pointing out the deposition testimony of Dr. Martin Malawer who stated that ultimately it was he, Dr. Malawer, who decided during surgery that it was necessary to amputate Graff's leg. Finally, Graft's appellate counsel asserted during oral argument that Graft's deposition contained statements denying his consent to an operation involving the amputation of his leg. *fn3

Summary judgment is appropriate only "when there are no material facts in issue and when it is clear that the moving party is entitled to judgment as a matter of law." Spellman v. American Sec. Bank, N.A., 504 A.2d 1119, 1122 (D.C. 1986); Super. Ct. Civ. R. 56 (c). The moving party must demonstrate the absence of any genuine issue as to material facts. Beard v. Goodyear Tire & Rubber Co., 587 A.2d 195, 198 (D.C. 1991); accord, Turner v. American Motors Gen. Corp., 392 A.2d 1005, 1006 (D.C. 1978). If it makes that showing "by pointing out that there is a lack of evidence to support the plaintiff's case," it is incumbent upon the non-moving party to show that such an issue exists. Beard, 587 A.2d at 198. The burden on the non-moving party is "that sufficient evidence supporting the claimed factual dispute be shown to require a jury or Judge to resolve the parties' differing versions of the truth at trial." Nader v. de Toledano, 408 A.2d 31, 48 (D.C. 1979) (quoting First Nat'l Bank of Arizona v. Cities Serv. Co., 391 U.S. 253, 288-89, 88 S. Ct. ...


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