The opinion of the court was delivered by: Ambrose, Chief District Judge
OPINION and ORDER OF COURT
A veteran who underwent surgery at a VA medical center asserts that a physician both misrepresented his experience and committed medical malpractice. The Government seeks the entry of summary judgment in its favor on both claims. Summary judgment is granted on the medical malpractice claim but denied on the misrepresentation claim.
Plaintiff Henry Wooding ("Wooding") is a veteran of the Armed Forces of the United States of America. As a veteran, he received health care and treatment throughout the years via the Department of Veterans Affairs ("DVA"). In particular, on or about June 13, 2001, Wooding underwent an operation at the DVA Medical Center in Pittsburgh, Pennsylvania.*fn1 Peter Dirksmeier, M.D., operated on Wooding. During the operation, Wooding's dura was punctured and cerebrospinal fluid leaked causing, what Wooding describes as, permanent injuries.
As a consequence of these injuries, Wooding and his wife, Plaintiff Phoebe Wooding, commenced this action against Defendant the United States of America ("the Government"). The Complaint sets forth two remaining claims, one entitled "informed consent" (which I will refer to as "misrepresentation")*fn2 and one related to medical malpractice.
The Government has filed two Motions for Partial Summary Judgment (Docket Nos. 11 and 29) seeking the entry of summary judgment on both counts. For the reasons set forth below, the Motion for Partial Summary Judgment on Count I is DENIED and the Motion for Partial Summary Judgment on Count II is GRANTED.
Summary judgment may only be granted if the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits, show that there is no genuine issue as to any material facts and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56. A fact is material when it might affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Rule 56 mandates the entry of judgment, after adequate time for discovery and upon motion, against the party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
In considering a motion for summary judgment, the Court must examine the facts in the light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chemical Co., 898 F.2d 946, 949 (3d Cir. 1990). The burden is on the moving party to demonstrate that the evidence is such that a reasonable jury could not return a verdict for the nonmoving party. Anderson, 477 U.S. at 248. Where the non-moving party will bear the burden of proof at trial, the party moving for summary judgment may meet its burden by showing that the evidentiary materials of record, if reduced to admissible evidence, would be insufficient to carry the non-movant's burden of proof at trial. Celotex, 477 U.S. at 322. Once the moving party satisfies its burden, the burden shifts to the non-moving party, who must go beyond its pleadings, and designate specific facts by the use of affidavits, depositions, admissions, or answers to interrogatories showing that there is a genuine issue for trial. Id. at 324.
I. Count I - Misrepresentation*fn3
Wooding contends that Dirksmeier exaggerated and misrepresented his experience, leading him to believe that he was an expert in the field of treating and operating on cervical spine conditions. It appears undisputed that, at the time of Wooding's surgery, Dirksmeier had completed his Orthopaedic Surgery Residency at the University of Pittsburgh Medical Center and was in the last month of completing his Orthopaedic Surgery Fellowship at the University of Pittsburgh Medical Center. It also appears to be undisputed that, when Wooding and his wife asked Dirksmeier about his experience prior to the surgery, Dirksmeier did not: reveal that he had not yet completed his Fellowship; reveal that he was not yet board certified; or reveal that he was not permitted to conduct surgery without supervision by another surgeon. Wooding contends that, had such information been disclosed to him, he would not have consented to Dirksmeier's performing the operation.
The Government contends that this claim is not viable for a number of reasons. Those arguments which characterize the claim as one of "informed consent," and seek the entry of summary judgment on that basis, are unconvincing. While I agree that Wooding did label his claim as one for "informed consent," it is clear that, upon closer inspection, the remaining portion of that claim*fn4 is actually one for misrepresentation. Consequently, I decline to address the arguments which focus upon the lack of viability of an ...