Hoofnel v. Segal

GRAVES, Justice.

This appeal is from a summary judgment granted to Appellees, Drs. James Segal and Susan Galandiuk, in a medical battery claim arising out of a scheduled surgery to treat Appellant Eva Hoofnel’s colorectal cancer. Even though Appellant admitted the medical necessity of removing her ovaries and uterus during the surgical procedure, Appellant alleges she did not consent for the removal of these organs.1 The Jefferson Circuit Court entered summary judgment in favor of Ap-pellees. The Court of Appeals affirmed, and we granted review. We affirm; however for reasons different from those of the lower courts.

On January 2, 2001, Appellant met with Dr. Galandiuk regarding the surgical removal of a lesion in her lower colon. The parties agreed that Dr. Galandiuk would perform a low anterior resection of the colon and an appendectomy. Dr. Galan-*149diuk also recommended that Appellant undergo an oophorectomy to remove her ovaries, and a hysterectomy to remove her uterus. At this time, Appellant stated that she did not want her uterus or ovaries removed.

On January 5, 2001, Appellant underwent pre-operative testing at Norton Hospital where she met with a member of the hospital’s nursing staff who described the risks of the surgical procedure scheduled for January 17, 2001. Appellant signed a “Consent to Operation” form. This consent form states that Dr. Galandiuk explained in layman’s terms the nature and risks of the surgical procedures. In handwriting, the consent form recites that the procedures to be performed are an “anteri- or resection colon with appendectomy and possible bilateral oophorectomy.” The consent form also contains the following paragraph authorizing additional procedures that may be medically necessary:

I understand that, during the course of the procedure(s) or operation(s), unforeseen conditions may require additional or different procedures than those listed above. I, therefore, authorize and request that the above-named physician, his/her associates, assistants, or consultants, perform such additional procedures as are deemed necessary in their professional judgment. This may include, but is not limited to, procedures involving pathology and radiology.

In her deposition, Dr. Galandiuk testified that Appellant verbally consented to an oophorectomy and hysterectomy provided Dr. Galandiuk felt that such additional procedures were medically necessary. Appellant denies giving verbal consent. During the surgery, Dr. Galan-diuk discovered an abnormally large uterus which impaired her ability to re-sect the lesion in the colon. Appellant’s uterus was pressing on the front wall of the rectum where the lesion was to be excised. Because Dr. Galandiuk believed that the uterus may have been cancerous, she consulted with Dr. Segal, a gynecologist, during the operation.2 Dr. Segal observed the uterus and ovaries and agreed that they may be cancerous.

In his deposition Dr. Segal testified that the uterus contained multiple fibroid tumors and that Dr. Galandiuk could not have properly completed the colon resection without removal of the abnormally large uterus. In reviewing Appellant’s consent form he noticed that a hysterectomy was not a specifically listed procedure. Dr. Galandiuk and her nurse advised Dr. Segal that Appellant gave her conditional consent for a hysterectomy. Unable to contact a member of Appellant’s family to confirm the consent, Dr. Segal performed the oophorectomy and hysterectomy.

The Jefferson Circuit Court granted Ap-pellees’ motion for summary judgment, and held that the consent to operate form was indisputable evidence that Appellant gave Appellees consent to perform the procedures. The trial court concluded, as a matter of law, that this consent defeated Appellant’s battery claim. Appellant moved to vacate the trial court’s opinion, arguing that her signature on the consent form was not dispositive on the issue of consent, and that consent is a process that takes into account preoperative discussions. Although the trial court agreed with Appellant on this point, it nevertheless denied her motion to vacate. It held that lack of consent was “inextricably woven together” with lack of informed con*150sent, and as such, Appellant failed to present expert testimony to negate informed consent. That is, Appellant failed to offer testimony concerning the language that should have been used in the consent form.

The Court of Appeals affirmed the trial court and held that, under the facts of the case, no reasonable person would have refused consent to the removal of the uterus and ovaries. The Court of Appeals found that under the circumstances consent was implied for removal of the uterus and ovaries.

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. CR 56.03; Steelvest, Inc. v. Scansteel Service Ctr., Inc., 807 S.W.2d 476, 480 (Ky.1991). We must view the record “in a light most favorable to the party opposing the motion for summary judgment and all doubts are to be resolved in his favor.” Steelvest, supra.

In our analysis, it is important to differentiate the concept of medical malpractice/negligence from the concept of a medical battery. In Vitale v. Henchey, 24 S.W.3d 651 (Ky.2000), this Court distinguished a medical battery claim from a negligence claim. Without repeating the analysis of Vitale, again we simply state that medical battery is an intentional tort, and as such, it contains all of the essential elements of a common law claim of battery. Id. at 657. In this appeal, the element upon which summary judgment was granted is consent. A plaintiff must prove lack of consent as an essential element of battery. Id. at 658 (citing Restatement 2nd, Torts § 13, Comment d). Consent may be either expressed or implied from the circumstances.3 Id. An exception to the consent requirement is an emergency or life threatening situation. Vitale, supra, at 659.

In this case we must determine whether the consent form that Appellant signed prior to her surgery created a valid consent to the oophorectomy and hysterectomy, and if so, whether a genuine issue of fact remains on the consent issue. In Kovacs v. Freeman, 957 S.W.2d 251 (Ky.1997), this Court explained the nature and role of a consent form for medical procedures. We held that consent is a process, and the consent form is a component of this process. Id. at 254-55. We stated, “valid consent to medical treatment is to be gleaned from evidence of the circumstances and discussions surrounding the consent process.” Id. (citing Haywood, supra).

In examining the consent form signed by Appellant, we find that it confirms her consent to the oophorectomy and the hysterectomy. The form specifically names a “possible bilateral oophorecto-my” as a surgical procedure. The form also authorizes procedures “as are deemed necessary” in the treating physicians’ professional judgment. This clause gave Dr. Galandiuk consent to perform the hysterectomy to remove Appellant’s uterus as it was abnormally large secondary to fibroids, potentially cancerous, and was impairing and impeding the sur*151geon’s ability to resect the lesion in her colon. *

We find the signed consent form to be clear evidence that summary judgment was proper. In evaluating consent in light of the circumstances and discussions surrounding the consent process, we do not believe that these circumstances create a genuine issue of material fact. Although in Kovacs we held that a consent form is not conclusive on the issue of consent, this is not to say that a consent form carries no weight at all.

The Kovacs opinion discusses Lewis v. Kenady, 894 S.W.2d 619 (Ky.1994). In Lewis, the plaintiff signed a consent form authorizing a mastectomy, but was permitted to introduce testimony that her authorization was orally conditioned upon a positive biopsy. Id. at 620, 622; Kovacs, supra, at 255. There, the circumstances and discussions surrounding consent elaborated upon a condition to the consent form, namely a confirmation of pathology.

There is a trend toward holding that consent evidenced in writing is conclusively presumed to be a valid consent in the absence of a valid collateral challenge. See Parikh v. Cunningham, 493 So.2d 999, 1001 (Fla.1986); Cardio TVP Surgical Assoc. v. Gillis, 272 Ga. 404, 528 S.E.2d 785, 787 (2000); Snyder v. Ash, 72 Ohio App.3d 795, 596 N.E.2d 518 (1991); Lugenbuhl v. Dowling, 701 So.2d 447, 450 (La.1997); Piedra v. J.M. Dugan, 123 Cal.App.4th 1483, 21 Cal.Rptr.3d 36 (2004). This presumption has been applied even where the consent form describes the procedures in medical terms (not laymen’s terms) or refers to “such additional operations or procedures as are considered therapeutically necessary on the basis of findings during the course of said operation.” Hutcheson v. McGoogan, 162 Ga.App. 657, 292 S.E.2d 527 (1982) (“The finding is bound by his written consent.”); Watson v. Worthy, 151 Ga.App. 131, 259 S.E.2d 138, 139 (1979).

In the instant case, Appellant has not presented sufficient evidence to rebut, or to distinguish the clear and unambiguous words of the consent form. Rather, Appellant acknowledges that she signed the consent form, but the essence of her argument is that she did not actually intend for her signature to grant consent. Appellant testified that she told Dr. Galandiuk, during an initial consultation, that she did not want her ovaries or uterus removed. Even assuming this conversation to be accurate, her signature on the consent form directly authorized one of these procedures and thus superseded this previous intention. The additional surgical procedure to remove the uterus became medically necessary once the enlarged uterus was observed as it impaired and impeded Dr. Galandiuk’s ability to resect the lesion in the colon. The existence of a signed consent form gives rise to a presumption that patients ordinarily read and take whatever other measures are necessary to understand the nature, terms and general meaning of consent. To hold otherwise would negate the legal significance to written consent forms signed by the patient and render the consent form completely unreliable.

The order of the Jefferson Circuit Court granting summary judgment is affirmed.

LAMBERT, C.J., GRAVES, JOHNSTONE, ROACH, and SCOTT, J.J., concur. COOPER, J., dissents in a separate opinion in which WINTERSHEIMER, J., joins.

. Contrary to the dissent's assertion that no such admission was made, during oral argument, counsel for Appellant states, "we do concede that the procedure was medically appropriate, medically necessary." 11:25:45

. In her deposition, Dr. Galadiuk was asked, “Did you have concerns that the ovaries and uterus may be cancerous as well?’’ She responded, "I was concerned... I wanted an expert opinion.” Pg. 39.

. Vitale, supra, at 659. The Court of Appeals opinion, as Judge Johnson notes in his dissent, incorrectly extends the notion of implied consent to include whether a reasonable person in the patient's situation would consent. The correct inquiry regarding implied consent is whether the particular patient implicitly manifested consent. The Court in Haywood v. Allen, 406 S.W.2d 721 (Ky.1966), held that a patient had given her implied consent to a procedure where the procedure had been discussed between the parties and there was a "tacit understanding" that it would be performed.