than Dr. Martinez. Dr. Martinez will not give the opinion plaintiff's case requires. See Martinez Affidavit, Ex. M. Second, to carry her burden, plaintiff can introduce expert medical testimony that the injuries plaintiff allegedly suffered as a result of the rhizotomy would not ordinarily occur unless the procedure has been performed negligently. Again plaintiff relies on Dr. Martinez to supply this opinion at trial. In his affidavit in support of this motion, Dr. Martinez has stated the opposite.
It is well-established that the party moving for summary judgment has the burden of demonstrating that there is "no genuine issue as to any material fact" and therefore he is entitled to summary judgment as a matter of law. The movant is held to a stringent standard. Adickes v. S. H. Kress & Co., 398 U.S. 144, 151, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Scooper Dooper, Inc. v. Kraftco Corp., 494 F.2d 840, 848 (3d Cir. 1974); United States ex rel. Jones v. Rundle, 453 F.2d 147, 150 (3d Cir. 1971). When the facts are unclear, any doubt as to the existence of a genuine issue of material fact will be resolved against the movant. Smith v. Pittsburgh Gage & Supply, 464 F.2d 870 (3d Cir. 1972). Moreover, because the burden is placed on the moving party, any evidence presented to the court will always be construed in favor of the party opposing the motion and that party is given the benefit of all favorable inferences that can be reasonably drawn from it. Harold Friedman, Inc. v. Thorofare Markets, Inc., 587 F.2d 127, 131 n.7 (3d Cir. 1978). In addition, any facts asserted by the party opposing the motion, if supported by affidavits or other evidentiary material, are regarded as being true. Scott v. Plante, 532 F.2d 939 (3d Cir. 1976). However, notwithstanding the above considerations, "if the movant makes out a prima facie case that would entitle him to a directed verdict if uncontroverted at trial, summary judgment will be granted unless the party opposing the motion offers some competent evidence that could be presented at trial showing that there is a genuine issue as to a material fact." See C. Wright & A. Miller, Federal Practice and Procedure: Civil § 2727, at 536 (1973).
In this case, plaintiff has failed to set forth a response to defendant Martinez's sworn affidavit that he was not negligent in performing the procedure and that he would not testify that the plaintiff's alleged injuries would not ordinarily occur in the absence of negligence. Presumably plaintiff's theory is that summary judgment is improper because she must be given the opportunity at trial to prove the facts on which her negligence claim is based. Plaintiff apparently would attempt to do this by cross-examining defendant Martinez and introducing medical treatises into evidence, pursuant to Federal Rules of Evidence 611(c) and 803(18) respectively.
However, plaintiff's argument fails to take into account the fact that summary judgment is only improper where a genuine issue of facts exists. Plaintiff has failed to set forth facts, supporting documents, or any other competent admissible evidence which would tend to put the crucial issues in dispute. Plaintiff offers deposition testimony which could be used to show that damage to her seventh cranial nerve occurred as a result of the rhizotomy performed by defendant Martinez, and not, as the defendants contend, the subsequent operation in Pittsburgh. However, plaintiff has failed to state how she will fulfill the requirement of showing by expert testimony that, in the absence of negligence, seventh cranial nerve damage would not ordinarily occur during a retrogasserian rhizotomy. It is not enough for the plaintiff to contend that this will be established at trial by cross-examination of the expert defendant, Dr. Martinez where Martinez has sworn in his affidavit that he does not believe that seventh nerve damage is an indication of negligent performance of a rhizotomy. Thus, plaintiff has failed to meet the burden of establishing that there are genuine questions of material fact, regarding her negligence claim, which should be determined at trial. Defendants' motion for summary judgment will be granted in respect to plaintiff's negligence claim.
Plaintiff also seeks to recover based upon an alleged lack of informed consent by her to the procedure. Under Pennsylvania law the issue to be decided in a case alleging a lack of informed consent to a medical procedure is: "whether the physician disclosed all those facts, risks, and alternatives that a reasonable man in the situation which the physician knew or should have known to be the plaintiff's would deem significant in making a decision to undergo the recommended treatment." Cooper v. Roberts, 220 Pa. Super. 260, 286 A.2d 647, 650 (1971).
Plaintiff alleges that she was not informed of the types and risks of the rhizotomy. In response to the defendants' motion, she alleges that she was not informed that she could lose her corneal reflex, the ability to tear, or the feeling in the lower left side of her face. Further she alleges that she was not informed of the effect these losses would have on her life. Finally, she alleges that she was not informed of the possibility of impairment of her ability to swallow or salivate. Final Pre-trial Order paras. 5-8, at 7-8. The defendant disputes all of these allegations. Id. PP 7 & 8, at 11-12.
At trial plaintiff would have the burden of proving what the actual risks of the procedure are which a reasonable person in her position would have wanted to know. Only after establishing these risks would she go on to prove, presumably by her own testimony, that she was not informed of them. Plaintiff is not entitled to hypothesize risks and then testify that she was not informed of them. The only expert testimony in the record of the risks of this procedure is Dr. Martinez's. He has stated the risks of this procedure to be loss of corneal reflex and loss of sensation in the upper left side of the face. Despite the denials in plaintiff's memorandum in opposition to this motion, the plaintiff has stipulated in the Final Pre-trial Order that plaintiff was warned of both of these risks. Final Pre-trial Order paras. 29 & 30, at 5-6. With respect to the other alleged risks of the procedure there is no expert medical evidence that they are risks. In the absence of expert medical evidence that these are actual risks, the plaintiff has no basis to argue that she should have been informed of these risks but was not. Thus, there is no genuine issue of material fact for trial since the parties agree that the plaintiff was informed of all risks for which there is a basis in the record.
For the reasons stated above, the defendants' motion will be granted. An appropriate order follows.
NOW, August 15, 1983, upon consideration of the defendants' motion for summary judgment, memoranda and supporting material submitted by the parties, and for the reasons stated in the accompanying memoranda, IT IS ORDERED that the motion is GRANTED.
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