Arbitration & Mediation

Does This Case Suggest That Summary Judgment Can't Be Granted on Hospital Surgery Consent Forms?

By Christopher B. Hopkins, Esq.

Hospital consent forms get signed every day however our ancedotal legal experience suggests that they are not routinely accepted by the courts. In fact, there is some room to suggest that defense lawyers have gotten the message and rarely press them through the use of summary judgment. This new opinion certainly does not encourage attempting summary judgment through use of a surgical consent form.

Enter the case of Harlan S. Ginsberg v. Northwest Medical Center, Inc., Dr. Jason Perelman, Dr. Mitchell Weinstein, and Uro-Medix, Inc. In this case, the plaintiff-patient sued two urologists, their medical group, and the hospital for alleged medical negligence during the surgical removal of his kidney. From the Opinion, we learn the plaintiff signed a consent form while "he was in pain, did not have his glasses, and had taken pain medication, rendering him unable to understand the form." The form conclusively stated that the hospital was not liable for the independent contractor physicians.

The issue of hospital vicarious liability for doctors has been a hot issue in Florida (note this post about the 5th DCA decision in Pope v. Winter Park Healthcare which has garnered over 1,000 hits). Why? Many doctors have minimal to no insurance whereas hospitals have insurance and/or are self-insured.

Here, the hospital filed summary judgment for itself, claiming that it was not liable for the independent contractors. The hospital presented the consent form as evidence. The trial court agreed and summary judgment was granted.

The Fourth District, however, disagreed (Stevenson, Hazouri, and Levine), breathing life back into the case while putting the viability of informed consent forms on life support. The Panel acknowledged that the consent form *said* all of the right things: "I acknowledge and agree that the surgeon and physician associates are independent contractors and are not employees or agents of Northwest Medical Center and that [hospital] does not control the manner or methods by which such procedures are performed."

The Panel then set out the elements for apparent agency and the circumstances surrounding the signing of the form (e.g., in pain, no glasses). Next, the Panel resorted to the summary judgment rule that there may be a "possibility" of a material issue of fact. Thereupon, the court concluded that the form, at a summary judgment stage, did not conclusively refute the allegations that the hospital held the two doctors out as possessing authority to act for the hospital -- curiously, we're not given any hint as to what the plaintiff claimed the doctors did to hold themselves out as agents for the hospital. Thus, the way it is written, it appears that if there is some element of procedural unconscionability surrounding the circumstances when an informed consent form was signed, it is not appropriate to enter summary judgment until all the evidence is in. At least under these circumstances, which are not specified. The court distinguished a case which supported the use of a consent form, since it was a directed verdict after all evidence was admitted -- not a summary judgment prior to trial.

What further confuses matters is that the court invited the hospital to "lay the proper predicate for the business records exception" (unexplained in the Opinion) and for the parties to submit additional record evidence. That said, given the lack of clarity in this opinion, plaintiffs seeking to avoid the use of informed consent forms for summary judgment are likely going to make the argument.

Full post as published by Florida Arbitration Law on July 14, 2009 (boomark / email).