The opinion of the court was delivered by: Ricardo M. Urbina United States District Judge
GRANTING IN PART AND DENYING IN PART THE DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
This doctor-patient dispute revolves around an unsuccessful cataract surgery. Doris Holland Dorn ("the plaintiff" or "Mrs. Dorn") filed a three-count complaint against her physician, John W. McTigue, M.D. ("the defendant or "Dr. McTigue"), asserting claims for medical malpractice ("Count I"), lack of informed consent ("Count II"), and violation of the District of Columbia Consumer Procedures and Protection Act ("CPPA") ("Count III"). The case comes to federal court based on diversity jurisdiction pursuant to 28 U.S.C. § 1332. Dr. McTigue now moves for summary judgment on all three counts. He argues that Mrs. Dorn has failed to make out prima-facie cases of medical malpractice and lack of informed consent. In addition, he contends that the CPPA does not apply to this case.
The court holds that the plaintiff has provided sufficient evidence on her claims of medical malpractice and lack of informed consent to preclude summary judgment. Thus, the court will deny summary judgment on Counts I and II. As for the CPPA claim, the court holds that the plaintiff has not provided sufficient evidence to preclude summary judgment. Accordingly, the court will grant summary judgment to the defendant on Count III.
A cataract is a condition of the eye lens that produces a painless and gradual loss of vision. See American Law of Medical Malpractice 2d § 20:11 (1994). Most cataracts are not visible until they are sufficiently dense to cause blindness. See id. Although the cause of many cataracts is unknown, some cataracts are caused by trauma, radiation, or metabolic disorders associated with the eye lens. See id. Cataracts have also been linked to diabetes. See id. Regardless of the cause, cataracts are treated by surgical removal. See id. Potential complications associated with cataract surgery include infection and retinal detachment. See id.
Cataract surgery may involve other procedures, such as removal of the jelly-like substance in the eye called "vitreous." See Mot. for Summ. J. at 9. If the vitreous is removed from the front of the eye, the procedure is known as an anterior vitrectomy. See id. Conversely, a posterior vitrectomy is the procedure for removing vitreous from the back of the eye. See id.
Cataract surgery and other related procedures can cause a macular hole in the eye. See Pl.'s Opp'n to Mot. for Summ. J. ("Pl.'s Opp'n") at 2. The macula is the part of the retina responsible for nearly 90 percent of all vision. See id. at 3. A macular hole is the separation of the portion of the retina constituting the macula. See id. An impending macular hole is a condition in which stress on the macula is likely to lead to separation. See id. With this background, the court turns to the case at bar.
In October 1995, Mrs. Dorn, then 65 years old, went to Dr. McTigue's office for her annual eye examination. *fn1 See First Am. Compl. ("Compl.") at 3. During this visit, Mrs. Dorn complained of decreased vision. See id. Dr. McTigue diagnosed Mrs. Dorn with an operable cataract in her left eye. See McTigue Dep. at 49. Sometime during this visit, according to Mrs. Dorn, Dr. McTigue told her "[w]hat you have I can fix, you have a cataract." Compl. at 7. Dr. McTigue also described some of the risks and benefits of cataract surgery, see McTigue Dep. at 36-37, and Mrs. Dorn was given an informed-consent form. See Mot. for Summ. J. at 2.
On November 16, 1995, Dr. McTigue performed cataract surgery on Mrs. Dorn's left eye. See id. During the surgery, a portion of Mrs. Dorn's lens fell into the posterior portion of her eye. See id. After Dr. McTigue failed to remove the lens, he sent Mrs. Dorn to the Washington Hospital Center for further surgery. See id. at 4.
During either the cataract surgery or the corrective surgery at Washington Hospital, the vitreous content of Mrs. Dorn's eye was removed, causing a macular hole. See id. As a result, Mrs. Dorn's retina was damaged, resulting in total loss of sight in her left eye. See id.
On September 8, 1998, Mrs. Dorn filed a complaint against Dr. McTigue. *fn2 In Count I, Mrs. Dorn alleges that Dr. McTigue committed medical malpractice by failing to use the proper standard of care in diagnosing the cause of her decreased vision. See First Am. Compl. ("Compl.") at 4. According to Mrs. Dorn, Dr. McTigue should have used additional diagnostic techniques to eliminate other potential causes of vision loss, such as macular edema, a pathologic disease of the macula, before performing cataract surgery. See id. at 3. Mrs. Dorn also claims that cataract surgery was unnecessary, and that Dr. McTigue subsequently attempted to perform a posterior vitrectomy, causing a macular hole in her left eye. See id.
In Count II, Mrs. Dorn alleges that Dr. McTigue did not properly inform her of certain risks and benefits of cataract surgery. See Compl. at 5-6. For example, Dr. McTigue did not inform Mrs. Dorn that he might have to retrieve lens material from her eye. See Notaroberto Decl. at 4. She also claims that Dr. McTigue did not tell her that she faced substantially increased risks of complications from the cataract surgery because she was diabetic. See id. As a result, she decided to proceed with the surgery, which ended up causing the vision loss in the left eye. See id. at 6.
Finally, in Count III, Mrs. Dorn asserts that Dr. McTigue violated the CPPA, D.C. Code §§ 28-3901 through 28-3909. See id. at 7. She bases this claim on Dr. McTigue's alleged misrepresentation about the quality and standard of his services. Specifically, this charge focuses on Dr. McTigue's statement: "[w]hat you have I can fix, you have a cataract." See id.
In this case's first Memorandum Opinion dated July 26, 1999, the court held that the CPPA covers medical practitioners if the plaintiff's claim relates to the entrepreneurial aspects of the physician's practice. See Mem. Op. dated July 26, 1999 ("Mem. Op.") at 5 (denying Dr. McTigue's motion to dismiss the CPPA claim). The court adopted the clear-and-convincing burden of proof standard for intentional-misrepresentation claims under the CPPA. See id. In a second Memorandum Opinion dated September 28, 2000, the court held that an unintentional-misrepresentation claim would fall outside the CPPA's scope, as the statute applies to the practice of medicine. See Dorn v. McTigue, 121 F. Supp.2d 17 (D.D.C. 2000). That ruling did not preclude the plaintiff's intentional-misrepresentation claim under the CPPA. See id. at 20.
Dr. McTigue now moves for summary judgment on all three counts. On Count I, Dr. McTigue argues that Mrs. Dorn failed to make out a prima-facie case of medical malpractice. See Mot. for Summ. J. at 1. With regard to Count II, he claims that Mrs. Dorn's injury was not caused by his failure to inform her of the alleged risk. See id. at 15-17. Finally, Dr. McTigue moves for summary judgment on Count III on the ground that Mrs. Dorn has failed to demonstrate that the CPPA applies to this case. See id. at 17-29.
Summary judgment is appropriate when the pleadings and evidence demonstrate that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Diamond v. Atwood, 43 F.2d 1538, 1540 (D.C. Cir. 1995). To determine what facts are "material," a court must look to the substantive law on which each claim rests. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A "genuine issue" is one whose resolution could establish an element of a claim or defense and, therefore, affect the outcome of the action. See Celotex, 477 U.S. at 322; Anderson, 477 U.S. 248.
In ruling on a motion for summary judgment, the court must draw all justifiable inferences in the nonmoving party's favor and accept the nonmoving party's evidence as true. See Anderson, 477 U.S. at 255. All evidence and the inferences drawn therefrom must be considered in the light most favorable to the nonmoving party. However, a nonmoving party must establish more than "the mere existence of a scintilla of evidence" in support of its position. See id. at 252. To prevail on a motion for summary judgment, the moving party must show that the nonmoving party "fail[ed] to make a showing sufficient to establish the existence of an element essential to that party's case, and in which that party will bear the ultimate burden of proof at trial." See Celotex, 477 U.S. at 325. By pointing to the absence of evidence proffered by the nonmoving party, a moving party may succeed on summary judgment. See id.
In addition, the nonmoving party may not rely solely on allegations or conclusory statements. See Greene v. Dalton, 164 F.3d 671, 674 (D.C. Cir. 1999). Rather, the nonmoving party "must come forward with specific facts" that would enable a reasonable jury to find in its favor. See id. If the evidence "is merely colorable, or is not significantly probative, ...