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Tuten v. Costrini
Citations: 518 S.E.2d 751; 238 Ga. App. 350; 99 Fulton County D. Rep. 2369; 1999 Ga. App. LEXIS 805Docket: A99A0942
Court: Court of Appeals of Georgia; May 28, 1999; Georgia; State Appellate Court
Lynelle Tuten appealed a trial court's summary judgment favoring Dr. Nicholas Costrini in a medical malpractice case, arguing that the court incorrectly concluded that her signed consent form established a rebuttable presumption of valid consent under OCGA 31-9-6.1 and that she failed to counter this presumption. The Court of Appeals of Georgia affirmed the trial court's decision, applying a de novo review standard and emphasizing that summary judgment is appropriate when the moving party demonstrates no genuine issue of material fact exists and is entitled to judgment as a matter of law. The facts indicate that Dr. Costrini performed an upper endoscopy on Tuten, during which she signed a consent form without raising any questions. A stricture was found, leading to an esophageal dilation that resulted in a tear—an acknowledged risk of the procedure—requiring further surgery. Tuten's claim was solely focused on the lack of informed consent for the dilation procedure, not on the standard of care during its execution. Dr. Costrini argued he had obtained valid consent based on the signed form and expert testimony. The informed consent statute requires that patients be made aware of material risks associated with surgical procedures, which could influence a reasonable person's decision to undergo the procedure. A rebuttable presumption of valid consent is established when consent is obtained in writing, signed by the patient, and generally discloses the information required by OCGA 31-9-6.1 (b)(2). Tuten’s signed consent form followed the statutory language, acknowledging the procedures (upper endoscopy with possible biopsies and/or polypectomy) and associated material risks (infection, allergic reaction, severe blood loss, paralysis, etc.). The form also allowed for unforeseen procedures or extensions deemed necessary by the medical professionals involved. Although esophageal dilation was not explicitly mentioned in the consent, it could still be validly consented to if it was unforeseen or not known to be needed at the time of obtaining consent. Evidence indicated the dilation was foreseeable, as Dr. Costrini noted it would likely be necessary if an obstruction was found during the endoscopy. However, the dilation was not known to be needed until the stricture was discovered during the procedure. Thus, Tuten's consent provided a rebuttable presumption in favor of the dilation being authorized. Tuten failed to rebut this presumption through the testimonies of Dr. Womack and Dr. Herz. Dr. Womack's contradictory testimony was deemed insufficient, as it must be construed against Tuten according to the contradictory testimony rule established in Prophecy Corp. v. Charles Rossignol, Inc. Therefore, the court maintained that the consent form created a rebuttable presumption of valid consent for the dilation procedure. Contradictory testimony from a party's expert witness in a deposition, compared to their affidavit, will be construed against that party in summary judgment motions. In the case of Abdul-Majeed v. Emory Univ. Hosp., Dr. Womack's affidavit indicated that Dr. Costrini failed to obtain informed consent, but during deposition, he asserted that valid consent was given. Tuten did not provide a reasonable explanation for this inconsistency, leading to the contradiction being used against her. Dr. Herz’s affidavit, submitted in response to the summary judgment motion, failed to establish the presumption of valid consent due to lack of supporting medical records and therefore was disregarded by the trial court. An expert's opinion must be based on certified medical records or personal knowledge, and Dr. Herz's affidavit lacked probative value because no records were attached or identified. Additionally, it did not meet the requirements for proving lack of consent under OCGA 31-9-6.1(d), as it did not demonstrate that a prudent patient would have rejected the procedure. The contradictory testimonies from Tuten's experts cannot create a factual question, as they will be construed against her. The principle from Prophecy Corp. applies to contradictions from a party’s own experts but not to lay witnesses. The judgment was affirmed, with concurrence from both judges.