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TAN LEVENSON v. DR. ROSLYN SOUSER (04/20/89)

filed: April 20, 1989.

TAN LEVENSON, APPELLANT,
v.
DR. ROSLYN SOUSER



Appeal from the Order entered on June 17, 1987, in the Court of Common Pleas of Delaware County, Civil, No. 83-6008.

COUNSEL

David Parsells, Philadelphia, for appellant.

Robert Devine, Philadelphia, for appellee.

Cirillo, President Judge, and Brosky, Rowley, Wieand, McEwen, Del Sole, Montemuro, Beck and Tamilia, JJ. Wieand, J., files concurring statement. Tamilia, J., files concurring and dissenting opinion. Brosky, J., files dissenting opinion in which Cirillo, President Judge, joins.

Author: Beck

[ 384 Pa. Super. Page 136]

This is an appeal from an order of the Court of Common Pleas of Delaware County partially granting defendant-appellee Dr. Souser's motion for summary judgment on the ground that a portion of plaintiff-appellant Mrs. Levenson's medical malpractice claim was barred by the statute of limitations.

On review of a grant of summary judgment, we must view all the facts in the light most favorable to the nonmoving party and resolve all doubts as to the existence of issues of material fact against the moving party. Farnell v. Winterloch Corp., 106 Pa. Commw. 542, 527 A.2d 204 (1987), allocatur denied, 518 Pa. 652, 544 A.2d 963 (1988); Mariscotti v. Tinari, 335 Pa. Super. 599, 485 A.2d 56 (1984). We must bear in mind that summary judgment is permissible only in the clearest of cases where all the material facts are free from doubt and the moving party is entitled to judgment as a matter of law. Id.

On December 23, 1980, Mrs. Levenson consulted Dr. Souser concerning possible breast augmentation surgery. During this consultation Mrs. Levenson decided to have the operation and made an appointment for surgery to be performed on January 12, 1981. This consultation is largely the focus of Mrs. Levenson's cause of action insofar as it relates to injuries allegedly resulting from this surgery. She contends that Dr. Souser did not inform her of all of the possible risks of the surgery either at this consultation or, for that matter, at any time thereafter. Thus, she contends that the surgery was performed without her informed consent.

[ 384 Pa. Super. Page 137]

The surgery itself was uneventful. However, within a short time after surgery, Mrs. Levenson began to experience discomfort due to hardness of her breasts and was concerned about the disparity in their size and shape. At Mrs. Levenson's deposition, she testified that at her first and apparently second post-operative visits to Dr. Souser, which occurred in mid-January, the doctor told her that the cause of her discomfort was simply post-operative swelling and that she should be patient. The doctor's deposition testimony is consistent with this. The doctor testified that as of the second visit she herself did not know why Mrs. Levenson was having difficulty or even if a complication had arisen since Mrs. Levenson's symptoms could simply have been a part of normal healing. She advised Mrs. Levenson to continue to massage her breasts vigorously because this was usually sufficient to ameliorate the condition.

During the third post-operative visit to Dr. Souser's office on January 27, 1981, Mrs. Levenson contends that she did not see the doctor but that the doctor's assistant told her that she was experiencing capsulization, i.e. an accumulation of restricting scar tissue around the breast which causes pain and hardening of the breast. Mrs. Levenson also testified that this was the first time she knew she was experiencing a complication of some kind.

However, Dr. Souser testified that she did see Mrs. Levenson on that day and told her to continue to massage her breasts vigorously. Dr. Souser's testimony was generally to the effect that since swelling, some hardness of the breasts and some formation of scar tissue are normal temporary results of breast augmentation, it is often difficult to tell when a patient is actually experiencing a complication in the nature of capsulization. Apparently only the passage of time allows a doctor to determine whether capsulization is actually occurring and cannot be remedied through normal massage procedures. Dr. Souser did state, however, that by January 27th there was some cause for concern about Mrs. Levenson's condition.

[ 384 Pa. Super. Page 138]

The testimony of the parties reveals that March 19, 1981 is the most likely date on which it became clear that normal massage techniques would not alleviate Mrs. Levenson's problem and that a further step needed to be taken. This step is called a "closed capsulotomy" or an attempt to apply external pressure to the breast sufficient to "pop" open the capsule of scar tissue. The attempt to do this was first made on March 19th, was unsuccessful and was followed by several more attempts up to and including March 31st. Dr. Souser testified that on March 31st she first told Mrs. Levenson that an "open capsulotomy", which involved popping the scar tissue through a second surgery, and the removal of the old prostheses and insertion of new ones, might be necessary. By May 4th, it became clear that such surgery was required and Mrs. Levenson was so informed. It was also at some time during this period, i.e. April or May 1981, that Mrs. Levenson admits that the thought first crossed her mind that perhaps she had not been told everything she should have before deciding to have the initial surgery.

The second operation was performed on June 5, 1981. Prior to this surgery, Dr. Souser allegedly assured Mrs. Levenson that the chances of the same problem recurring were very slight and that the doctor would apply a new medication during the surgery which would even further reduce the chances of this complication. Nonetheless, shortly thereafter Mrs. Levenson began to experience the same problems as had resulted from the first surgery. She stopped seeing Dr. Souser in July 1981.

Mrs. Levenson consulted with an attorney in September 1981. In October she saw another doctor, Dr. Ardizone, concerning her condition. At this consultation she alleges she was informed for the first time that her post-operative condition was common, experienced by 40-60% of breast augmentation patients, and that it was routine to advise patients of this possible reaction prior to surgery. In May 1982 Mrs. Levenson had the breast implants surgically removed. She instituted suit against Dr. Souser on June 2,

[ 384 Pa. Super. Page 1391983]

, alleging both negligence and lack of informed consent as to both operations Dr. Souser had performed. In the course of pre-trial proceedings, however, Mrs. Levenson's counsel indicated that the negligence aspect of the claim would not be pursued and that informed consent was the plaintiff's theory.

Dr. Souser pled the bar of the statute of limitations in new matter. It is undisputed that the applicable statute is 42 Pa.Cons.Stat.Ann. § 5524, which provides that an action for assault and/or battery must be commenced within two years. Section 5502 generally provides that a statute of limitations begins to run from the time the cause of action accrues. 42 Pa.Cons.Stat.Ann. § 5502.

Mrs. Levenson responded by arguing that the "discovery rule" applied to her cause of action and that since in the exercise of due diligence she did not and reasonably could not have discovered her injury and its cause until either after the second surgery or in October 1981 when she first saw Dr. Ardizone, the two year statute of limitations did not begin to run against her until that time. Thus, she contends that her suit, filed in June 1983, was timely. Mrs. Levenson also argued that Dr. Souser had concealed the true nature of Mrs. Levenson's condition from her by assuring her that the reaction she was having was not of great concern and could easily be remedied. This, Mrs. Levenson contends, also tolled the statute of limitations.

After the taking of depositions, Dr. Souser filed a motion for summary judgment supported by two alternative arguments. First, Dr. Souser argued that the discovery rule does not apply to Mrs. Levenson since, under Pennsylvania law, a cause of action for lack of informed consent is technically an action for assault and battery. In such a case, Dr. Souser contended, the statute of limitations begins to run from the date of the alleged harmful touching, i.e. January 12, 1981, and expires two years later. Alternatively, Dr. Souser contended that even if the rule does apply, Mrs. Levenson was nevertheless barred since she knew or should have known of her injury and its cause as early as

[ 384 Pa. Super. Page 140]

January 27, 1981 when Dr. Souser's assistant told her she was having a complication or, at the latest, in May 1981, when Mrs. Levenson knew a second operation was necessary. Mrs. Levenson again responded by arguing the discovery rule and concealment.

The trial court granted Dr. Souser's motion in part, entering the following order:

AND NOW, this 17th day of June, 1987, upon consideration of the defendant's Motion for Summary Judgment, plaintiff's response thereto, as well as the memoranda filed by the parties, it is hereby ordered that defendant's motion is granted insofar as any reference to the surgery of January 12, 1981, and any other procedure prior to June 2, 1981, as well as any reference to any injuries which may have resulted therefrom.

This order was accompanied by a very thoughtful opinion in which the trial court agreed, albeit reluctantly, that under Pennsylvania law Mrs. Levenson's action was technically an action for assault and battery. Thus, the court concluded that the discovery rule did not apply since, in the trial court's words:

     all the elements necessary to establish an informed consent case are presented when a medical procedure is performed where the physician has ignored his or her obligation to enlighten the patient as to the perils and alternatives beforehand. As soon as the doctor lays his educated hands on the patient the tort is completed and liability attaches. Unlike negligence cases where ...


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