Brew v. Ferraro CV-95-615-JD 07/28/98 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE
Mary J. Brew
v. Civil No. 95-615-JD
Thomas Ferraro, M.D., et al.
O R D E R
The plaintiff, Mary Brew, brought this action asserting,
inter alia, claims for medical malpractice and intentional
infliction of emotional distress against the defendants Dr.
Thomas Ferraro, Dr. Guy Leadbetter, and Concord Urology, P.A.
("Concord Urology"). Before the court is the defendants' motion
for summary judgment (document no. 38).
Background1
The plaintiff first suffered from a urinary tract infection
("UTI") when she was eighteen months old. Although the infection
was treated successfully with medication, it was recurrent and
led to the plaintiff's admission to Concord Hospital on February
20, 1963. At the time the plaintiff was four years old and
suffered from incontinence.
1The facts related herein are alleged by the plaintiff or are not in dispute. Upon the plaintiff's admission to Concord Hospital, the
plaintiff's mother signed a general consent form authorizing
treatment or operation that was "necessary or advisable in the
diagnosis and treatment of this patient." Second Am. Compl. at
3. Defendant Ferraro was her attending physician and performed a
cystoscopy and cystogram, from which he diagnosed the plaintiff
as suffering from ureteral reflux, meatal stenosis, and bladder
neck contracture or obstruction.
At the time of Ferraro's diagnosis, a common, although not
universal, theory of pediatric urologists was that UTIs were
often caused by a congenital abnormality that constricted or
obstructed the bladder neck. This school of thought theorized
that the physical obstruction prevented normal urination which in
turn caused urine to "reflux" or flow back up into the kidney.
The result was an infection that, if left untreated, could
seriously threaten the entire urinary system. Many pediatric
urologists treated the "bladder neck contracture," as the
congenital condition was known, by surgically altering the
bladder neck.
To correct the condition several widely used surgical
methods were employed, one of which was called a "Bradford Young
Y-V plasty." This operation involved making an incision at the
bottom of the bladder at the bladder neck, removing a portion of
2 the wall of the bladder neck, and then folding and closing the
surgical opening. See Second Am. Compl. at 4. The Y-V plasty
was performed "hundreds, if not thousands, of times between 1954
and the late 1960s." See id.
Over time, however, pediatric urologists found that the
bladder neck constriction was a symptom of UTIs, as the infection
caused a swelling of bladder tissue, and not the cause. By
approximately 1970, the practice of surgical correction stopped
and a child's recurrent UTIs were treated with medication.
Recurrent UTIs eventually would come to an end as the child's
urinary system matured.
On February 23, 1963, Ferraro recommended a Y-V plasty to
the plaintiff's parents, advised them that the alternative was
long-term and fairly constant drug therapy, and indicated that he
could perform the surgery or refer the plaintiff to defendant
Leadbetter, a national expert in the procedure. He neither
informed the plaintiff's parents that the procedure could result
in total, permanent incontinence nor indicated the health
conseguences of such incontinence. The plaintiff's parents did
not sign any additional consent form other than the general
consent form signed upon the plaintiff's admission.
On February 25, 1963, the plaintiff underwent the Y-V
plasty. During the procedure, Ferraro cut so far down into the
3 plaintiff's urethra that he damaged her urinary sphincter and her
urethra and caused the plaintiff to become permanently
incontinent. As opposed to the plaintiff's prior incontinence
which was the result of the UTIs, this incontinence was
structural. Because the plaintiff was previously incontinent,
however, the cause of her continued incontinence, the Y-V plasty,
was not realized by the plaintiff or her parents. Three months
after the surgery, still incontinent, the plaintiff returned to
Ferraro. Ferraro noted in medical records that the plaintiff's
bladder neck "appeared wide open," indicating that the
incontinence could no longer be caused by the bladder neck
contracture, but he did not inform the plaintiff or her parents
of this. See Second Am. Compl. at 7. Instead, he recommended
that they seek a second opinion from Leadbetter.
On July 10, 1963, the plaintiff was admitted to
Massachusetts General Hospital ("MGH") to see Leadbetter.
Leadbetter noted her incontinence and although he was unsure of
the nature, extent, or cause of the incontinence, he determined
that her urethra was short. Leadbetter recommended treating the
infection and awaiting the results, deferring incontinence
surgery for six months.
Because the plaintiff remained incontinent she was
readmitted to MGH in May of 1964. On May 3, 1964, the
4 plaintiff's mother signed a general consent form. On May 6,
1964, Leadbetter operated on the plaintiff to correct the damage
that was done to her urethra as a result of the Y-V plasty
performed by Ferraro. He titled the procedure a "Urethral
Lengthening Procedure for Incontinence." See Second Am. Compl.
at 8. The procedure reguired removing muscle tissue from the
bladder wall to reconstruct the urethra. A catheter was
temporarily inserted into the plaintiff and the tissue was folded
over it. The catheter, which in all cases is of a narrower
diameter than a natural urethra, functioned as a splint around
which the reconstructed urethra took shape. The result of the
reconstructive procedure was a urethra that was shaped very
differently than a normal urethra - it was kinked or corkscrewed
and was narrower than a normal urethra.
After the operation the plaintiff slowly became more
continent, although she had freguent UTIs that Ferraro treated.
Treatment reguired repeated catheterizations: the manual
draining of the bladder by inserting a catheter or tube into the
plaintiff. However, neither Leadbetter nor Ferraro ever
explained to the nurses inserting the catheter, or to the
plaintiff or her parents, that the plaintiff's urethra was of an
unusual shape or size. The catheterizations were therefore
extremely and unnecessarily painful, and although the pain was
5 extraordinary, nurses performing the procedures failed to modify
the protocol or investigate possible medical causes or solutions.
Ferraro himself performed the catheterizations on numerous
occasions. The reports on these catheterizations indicate his
knowledge of the plaintiff's unusually shaped reconstructed
urethra. Neither the plaintiff nor her parents were told the
reason for the extraordinary pain.
In 1968 the plaintiff began suffering from a tightening of
her urethra which was diagnosed by Ferraro as "strictures," an
extremely rare condition in female children. Although the
strictures were a conseguence or evolution of the plaintiff's
condition after the reconstructive surgery, or alternately, of
the repeated catheterizations, Ferraro falsely characterized the
strictures as a reappearance of the bladder neck contracture or
obstruction which he had originally diagnosed and attempted to
remedy by the Y-V plasty.
As the years passed, the strictures, their necessary
treatment, and the natural evolution of the plaintiff's condition
after the reconstructive procedure led to the degradation of the
plaintiff's urethra. The plaintiff had increasing difficulty
urinating; by her mid-teens she could no longer void urine on a
regular basis, and by 1975 she had to catheterize herself daily.
Moreover, the degradation of the plaintiff's physical condition
6 was exacerbated by the catheterizations. Upon learning that she
would need to permanently self-catheterize, the plaintiff
attempted suicide. The plaintiff presently faces the probability
that she will require a urinary diversion through her abdomen and
the collection of her urine in a bag. She self-catheterizes
every six hours.
In 1964, at the time Leadbetter performed the reconstructive
surgery that came to be known as the "Leadbetter procedure," the
procedure was experimental. He had just published an article in
the Journal of Urology entitled "Surgical Correction of Total
Urinary Incontinence." The article describes a series of five
cases or operations to restore continence caused by damage to or
failure of the urethral sphincter muscle. Three of the five
cases reported were young female children who were made
incontinent by Y-V plasties. The article described the
reconstructive procedure as "new" and indicated that "imperfect
results . . . are due to inevitable errors which are inherent in
the development of any new surgical procedure." Second Am.
Compl. at 9. Leadbetter continued to publish articles on the
reconstructive procedure to restore incontinence. In three more
articles, published between 1965 and 1967, Leadbetter further
described the surgery and its effects on a small case study of
approximately five to fifteen patients. Circumstantial evidence
7 indicates that the plaintiff was one of the patients who had
undergone the reconstructive surgery as a result of an
unsuccessful Y-V plasty. Neither Leadbetter nor Ferraro
explained to the plaintiff or her parents that the reconstructive
surgery was experimental.
Leadbetter had diagnosed the plaintiff as suffering from
incontinence caused by Ferraro's Y-V plasty. Leadbetter did not
inform the plaintiff or her parents that the reconstructive
procedure was being performed to correct the damage inflicted
during the Y-V plasty. Ferraro expressly told the plaintiff's
parents that the reconstructive surgery was another "bladder neck
revision"2 to correct the same bladder neck contracture that
Ferraro had corrected with his earlier Y-V plasty. To conceal
the true relation between the operations, Ferraro consistently
recorded the second surgery as a "bladder neck revision" in the
plaintiff's medical records despite his knowledge otherwise.
The plaintiff sought treatment from Ferraro until 1980. At
some time after July 2, 1973, Ferraro became an employee of
defendant Concord Urology. While employed by Concord Urology,
Ferraro provided medical services for the plaintiff in connection
with her urological problems.
2"Bladder neck revision" is the term used in medical literature for a Y-V plasty.
8 The plaintiff continued to seek treatment after leaving the
New England area for college. Although the plaintiff saw two
doctors over a number of years. Dr. Arnold M. Kwart and Dr. E.
Everett Anderson, neither doctor ever disabused the plaintiff or
her family of the mistaken conception that her incontinence was
caused by a congenital defect, nor did they reveal the nature of
the surgeries. Finally, in 1990, Dr. Kwart gave the plaintiff
her first indication that her urological problems might be
related to the Y-V plasty. Dr. Kwart informed her that the Y-V
plasty procedure was a new and experimental surgery at the time
it was performed on her, but that it was performed in accordance
with the then-prevailing standard of care. Dr. Kwart never
informed her that the Leadbetter procedure involved the
reconstruction of her urethra.
In a letter to her insurance company in December of 1991,
the plaintiff indicated her knowledge of the following: (1) a
local urologist in her New Hampshire hometown had performed an
operation on her bladder that was relatively new; (2) the surgeon
damaged important nerves and muscles through an incorrect
incision; (3) the surgery caused her incontinence; (4) a surgeon
in Boston reconstructed her bladder neck and twisted her urethra
into a corkscrew. On November 13, 1993, with her attempts to
secure proper health care frustrated by her lack of knowledge
9 regarding her own health, the plaintiff purchased a urology
textbook. The plaintiff found Leadbetter's name referenced, as
well as his articles. At this point the plaintiff began to
understand more fully her medical history.
On December 22, 1995, the plaintiff filed a complaint in the
United States District Court for the District of New Hampshire.
The complaint has been amended twice. Pursuant to the second
amended complaint, the plaintiff alleges nine counts against
Ferraro, Leadbetter, and Concord Urology, as follows: (1) lack
of informed consent and medical battery against Ferraro;3 (2)
malpractice in the performance of surgery against Ferraro; (3)
concealment of and failure to disclose the plaintiff's true
medical condition against Ferraro and Leadbetter; (4) failure to
provide adeguate post-operative care against Ferraro and
Leadbetter; (5) medical battery against Leadbetter; (6)
malpractice in the diagnosis and determination of treatment
against Leadbetter; (7) intentional infliction of emotional
distress against Ferraro and Leadbetter; (8) negligent infliction
of emotional distress against Ferraro and Leadbetter; and (9)
respondeat superior liability against Concord Urology.
3Although the plaintiff originally stated a claim in count one for medical battery against Ferraro, she subseguently dropped this claim. See Pl.'s Opp'n to Defs.' Mot. for Summ. J. at 13.
10 Discussion
The role of summary judgment is "to pierce the boilerplate
of the pleadings and assay the parties' proof in order to
determine whether trial is actually reguired." Snow v.
Harnischfeger Corp., 12 F.3d 1154, 1157 (1st Cir. 1993) (guoting
Wynne v. Tufts Univ. Sch. of Med., 976 F.2d 791, 794 (1st Cir.
1992)). The court may only grant a motion for summary judgment
where the "pleadings, depositions, answers to interrogatories,
and admissions on file, together with the affidavits, if any,
show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter of
law." Fed. R. Civ. P. 56(c). The parties seeking summary
judgment bear the initial burden of establishing the lack of a
genuine issue of material fact. See Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986); Quintero de Quintero v. Aponte-Rogue,
974 F.2d 226, 227-28 (1st Cir. 1992) . The court must view the
entire record in the light most favorable to the plaintiff,
"'indulging all reasonable inferences in that party's favor.'"
Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991)
(guoting Griqqs-Rvan v. Smith, 904 F.2d 112, 115 (1st Cir.
1990)). However, once the defendants have submitted a properly
supported motion for summary judgment, the plaintiff "may not
rest upon mere allegation or denials of [her] pleading, but must
11 set forth specific facts showing that there is a genuine issue
for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256
(1986) (citing Fed. R. Civ. P. 56(e)).
The defendants assert that summary judgment on the
plaintiff's claims is warranted because: (1) all the plaintiff's
claims are barred by a two-year statute of limitations; (2) the
plaintiff's parents consented to the procedures at issue and the
plaintiff cannot prove causation regarding the informed consent
and the medical battery claims, counts one and five; (3) New
Hampshire does not recognize a separate tort based on
"concealment and failure to disclose medical condition," count
three; and (4) the defendants' conduct was not extreme or
outrageous, one element necessary to the plaintiff's intentional
infliction of emotional distress claim, count seven. The court
considers these arguments for each count individually.4
_____ At the outset, the court addresses two preliminary issues.
First, the court assumes for the purposes of this order that the
plaintiff had knowledge of the tortious acts and the harm she
suffered in 1990, as the defendants assert, and not in 1993, as
the plaintiff alleges, because it is immaterial to the outcome.
4The defendants have also reguested oral argument. However, the court finds oral argument to be unnecessary for the resolution of these issues.
12 Second, because it is relevant to every count alleged, the court
addresses generally the statute of limitations for personal
actions.
A. Statute of Limitations
Under New Hampshire law, the statute of limitations
governing personal injury actions and medical malpractice has
evolved significantly over the last forty years. However, each
revision has consistently employed certain terms that are central
to their application: (1) a cause of action arises when the
harmful act or omission complained of occurs and the causal
negligence is coupled with harm to the plaintiff - to arise means
"'to originate from a specified source', or 'to come into
being,'" Conrad v. Hazen, 140 N.H. 249, 251, 252, 665 A.2d 372,
374, 375 (1995) (citations omitted); (2) a cause of action
accrues when "'the plaintiff discovers or, in the exercise of
reasonable diligence, should have discovered both the fact of his
injury and the cause thereof,'" id. at 250-51, 665 A.2d at 374
(citations omitted) (referred to as "common law discovery rule,"
later codified at N.H. Rev. Stat. Ann. ("RSA") § 508:4 (I)
(1997), as when "plaintiff discovers, or in the exercise of
reasonable diligence should have discovered, the injury and its
causal relationship to the act or omission complained of."
13 In 1963, the earliest date of direct relevance to the events
in this case, the statute of limitations for a medical
malpractice claim was two years from the date that the cause of
action accrued. See Patrick v. Morin, 115 N.H. 513, 514, 345
A.2d 389, 390 (1975) (citing RSA § 508:4 not specifying effective
date). The parties agree that the plaintiff's claims are
encompassed by the term "malpractice" as used in the pre-1969
two-year statute of limitations. See id., 345 A.2d at 390.
Effective July 2, 1969, RSA § 508:4 was amended to extend the
statute of limitations for personal actions, including
malpractice, to six years after the cause of action accrued,
although the amendment would not "affect causes of action accrued
prior to its effective date." 1969 N.H. Laws 378:1; see also
Patrick, 115 N.H. at 514, 345 A.2d at 390. Implicit in this
provision is the fact that the six-year statute of limitations
was to be applicable to causes of action that had arisen under
the two-year statute but that had not yet accrued as of July 2,
1969.
RSA § 508:4 was further amended in 1981 and 1986. The 1981
amendment has no relevance to this case. Pursuant to the 198 6
amendment, the six-year statute of limitations for personal
injury actions was shortened to three years from the date the act
or omission occurred. However, the statute also codified the
14 common law discovery rule. It specifically provides that the
three year statute shall run from "the time the plaintiff
discovers, or in the exercise of reasonable diligence should have
discovered, the injury and its causal relationship to the act or
omission complained of" when such injury and its relation to the
challenged act "were not discovered and could not reasonably have
been discovered at the time of the act or omission." RSA § 508:4
(1997). This amendment became effective July 1, 1986, and
applies "to all causes of action arising on or after July 1,
1986." 1986 N.H. Laws 227:22 (II).
Pursuant to the 1969 amendment, therefore, a malpractice
cause of action which arose and accrued before 1969 would have
had a two-year statute of limitations. A malpractice cause of
action that arose before July 2, 1969, but which did not accrue
until after that date would have the benefit of the six-year
statute of limitations. A cause of action that arose between
1969 and 1986 but that accrued after 1986 similarly would have a
six-year statute of limitations. Finally, a cause of action
arising after 1986 would be subject to a three year statute of
limitations.
The defendants point to language from the New Hampshire
Supreme Court in Conrad that indicates that the relevant statute
of limitations for causes of action that arise prior to the 1986
15 statute is the statute in effect at the time that the cause of
action arose. The court in Conrad stated:
We hold, therefore, that a plaintiff who alleges an injury based on a defendant's conduct that occurred prior to July 1, 1986, but where either the injury or its cause was not discovered until sometime after that date, would have the benefit of the six-year statute of limitations and the common law discovery rule. By creating a bright line rule that determination of the appropriate standard will be governed by the time when the act occurred, we avoid the confusion that could result from linking the applicable statute to the date of accrual.
The plaintiff's cause of action arose in 1977, when the sexual assault allegedly occurred, and is therefore governed by the six-year statute of limitations. The trial court erred in applying the post-1986 three-year statute of limitations to the facts in this case and granting summary judgment.
Conrad, 140 N.H. at 252, 665 A.2d at 375. In Conrad the court
was confronted with a cause of action that arose in 1977 but that
accrued in 1991. See id., 665 A.2d at 375. On appeal, the
Supreme Court of New Hampshire held the six-year statute of
limitations applicable to the claim before the court and
overruled the trial court's determination that had applied the
post-1986 three-year statute of limitations. See id., 665 A.2d
at 375.
The defendants' interpretation of Conrad is an artifact of
removing the guoted language from its context. The court stated
that the applicable statute of limitations is to be determined by
16 the date on which the act occurred, that is, the date the cause
of action arose. See id., 665 A.2d at 375. However, this was
prefaced by the court's determination that July 1, 1986, shallbe
the bright line date distinguishing between causes of action
governed by the six-year statute of limitations and those
governed by the three-year statute of limitations. See id.,665
A.2d at 375. Therefore, regardless of whether the cause of
action arose under the two-year statute or the six-year statute,
if it arose before July 1, 1986, the six-year statute of
limitations is applicable.
The New Hampshire Supreme Court ruling preserves the time
periods that the legislature has established for various causes
of action. As discussed above, with the exception of causes of
action that arise after July 1, 1986, the only time period other
than a six-year time period is the two-year time period
applicable to causes of action that arose and accrued before the
1969 amendment. However, these causes of action are already
extinct and are therefore irrelevant to the New Hampshire Supreme
Court's ruling.5
5This court's discussion does not address causes of action that were excepted from the six-year statute of limitations by the 1981 amendment.
17 B. Lack of Informed Consent and Medical Malpractice: Ferraro
The plaintiff alleges that in February of 1963 when Ferraro
obtained the consent of the plaintiff's mother for the Y-V plasty
he failed to inform the plaintiff or her parents that: (1) there
were alternatives to surgery, including drug therapies, that
would have provided adeguate medical attention; (2) the medical
community at the time of the operation held the diagnosis of
bladder neck contracture and the surgical treatment of it in
dispute; and (3) the Y-V plasty posed a risk of permanent
incontinence. The plaintiff also alleges that in February of
1963 Ferraro failed to perform the Y-V plasty according to the
appropriate standard of care.
The plaintiff's claims against Ferraro in counts one and two
alleging a lack of informed consent and medical malpractice
therefore arose in February of 1963 under the pre-1969 two-year
statute of limitations. However, the applicable statute of
limitations is the 1969 six-year statute of limitations because
the lack of informed consent claim and the medical malpractice
claim had not yet accrued as of 1969. See 1969 N.H. Laws 378:1
("This section shall not affect causes of action accrued prior to
its effective date."); see also Patrick, 115 N.H. at 514, 345
A.2d at 390. Because the cause of action accrued in 1990 and the
complaint was filed in 1995, it is not barred by the statute of
18 limitations.6
C. Concealment of and Failure to Disclose True Medical Condition: Ferraro and Leadbetter
The plaintiff asserts that both Leadbetter and Ferraro had
affirmative duties to disclose the following: (1) the
plaintiff's true medical condition after the Y-V plasty; (2) the
true relationship between the Y-V plasty and the Leadbetter
procedure; and (3) the plaintiff's actual physical condition
after the Leadbetter procedure. As a result of their failure to
disclose to the plaintiff her true medical condition, she endured
unnecessary and repeated pain, suffering, and humiliation, and
the degradation of her physical condition was exacerbated.
The defendants counter the plaintiff's claims on two
grounds. The defendants first challenge the claims on the basis
of the statute of limitations, arguing that Ferraro's duty arose
in 1963 immediately after the 1963 Y-V plasty, and that
Leadbetter's duty arose in 1964 at the time of the 1964
6The defendants also argue that summary judgment should be granted on the informed consent claim against Ferraro as the plaintiff and her mother testified that they would have made the same decision to undergo surgery if they had been more fully informed. However, the court rejects this argument as the testimony cited by the defendants relates only to the surgical procedure performed by Leadbetter, not Ferraro. See Defs.' A p p . at 139-40, 149, 155-157. No informed consent claim is alleged against Leadbetter.
19 reconstructive procedure. Therefore, they urge, the claims are
barred by the pre-1969 two-year statute of limitations. However,
as with the informed consent and medical malpractice claims, the
1969 amendment that extended the statute of limitations to six
years is the applicable statute governing these claims as the
claims had not yet accrued in 1969. Because the plaintiff's
claim accrued in 1990 and the complaint was filed in 1995, the
cause of action is not time-barred.
The defendants also challenge the plaintiff's claim arguing
that the alleged cause of action, concealment and failure to
disclose the plaintiff's true medical condition, is not cog
nizable under New Hampshire law. The defendants characterize the
plaintiff's claim as asserting a novel cause of action for
"fraudulent concealment." Although the plaintiff supplies no New
Hampshire authority in support of count three, the court
disagrees with the defendants' characterization and understands
count three of the plaintiff's second amended complaint to allege
a breach of Ferraro's and Leadbetter's duty to disclose, giving
rise to an informed consent cause of action.
RSA § 507-E:l(I)(1997) defines "medical injury" to include
any "adverse, untoward or undesired conseguences arising out of
or sustained in the course of professional services . . . from
rendition of such services without informed consent . . . ."
20 "Generally a doctor has a duty to inform his patient of the
reasonable risks involved in an operation or treatment so that
the patient can make an effective choice." Folger v. Corbett,
118 N.H. 737, 738, 394 A.2d 63, 63 (1978); see also RSA § 507-E:2
(II) (1997). To the extent that the defendants failed to
disclose information to the plaintiff or her parents relevant to
their decisions regarding her medical treatment and the risks or
hazards involved, the plaintiff has stated a cause of action
under New Hampshire law. Knowledge of the plaintiff's actual
physiological condition after the Y-V plasty and the Leadbetter
procedure was surely relevant to an effective choice regarding
future treatment, as was information pertaining to the
relationship between the Y-V plasty and the Leadbetter procedure.
D. Failure To Provide Adequate Post-Operative Care: Ferraro and Leadbetter
The plaintiff alleges that Ferraro and Leadbetter breached
their obligations to provide adeguate post-operative care and to
adeguately supervise the post-operative care provided to the
plaintiff by other medical providers. The plaintiff continued to
be regularly treated by Ferraro until her departure for college
in 1977, with occasional treatment continuing until 1980. The
last time that the plaintiff was treated by Leadbetter was in
21 July of 1975. The plaintiff's cause of action therefore arose
prior to 1986, although it accrued in 1990. Consequently, it is
governed by the six-year statute of limitations that began
running from the date of accrual and is not barred by the statute
of limitations.
E. Medical Battery: Leadbetter
The plaintiff contends that Leadbetter is liable for medical
battery as he failed to inform her or her parents regarding the
true nature of the operation he performed in May of 1964 and its
relation to the Y-V plasty. The defendants challenge this count
of the plaintiff's complaint. Relying on Iowa law, the
defendants argue, and the plaintiffs agree, that a medical
battery claim "is appropriate only in circumstances when a doctor
performs an operation to which the plaintiff has not consented."
See Moller v. Stallings, 387 N.W.2d 599, 601 (Iowa 1986).7 The
7Pursuant to New Hampshire law:
An actor is subject to liability to another for battery if
(a) he acts intending to cause a harmful or offensive contact with the person of the other or a third person, or an imminent apprehension of such a contact, and
(b) a harmful contact with the person of the other directly or indirectly results.
Restatement (Second) of Torts § 13 (19 65); see also New Hampshire Civil Jury Instructions 3rd § 20.1 (1994) . "A bodily contact is
22 defendants argue that the plaintiff's cause of action for medical
battery must fail because the plaintiff's mother: (1) understood
that the procedure Leadbetter was to perform involved the
reconstruction of the plaintiff's urethra; (2) signed a consent
form to "administer such anesthetics: and perform such operations
as may be deemed necessary"; and (3) testified that she gave
Leadbetter her consent to perform the procedure he performed.8
In support of their contention that the plaintiff's mother
understood the procedure performed by Leadbetter, the defendants
rely on the following language from the deposition of the
offensive if it offends a reasonable sense of personal dignity. It must be a contact which is unwarranted according to the social values prevalent at the time and place at which it is inflicted." New Hampshire Civil Jury Instructions 3rd § 20.1 (II) (1994). "[T]he plaintiff's consent to the contact with his person will prevent the liability. The absence of such consent is inherent in the very idea of those invasions of interests of personality which, at common law, were the subject of an action of trespass for battery . . . . Therefore the absence of consent is a matter essential to the cause of action, and it is uniformly held that it must be proved by the plaintiff as a necessary part of his case." Restatement (Second) of Torts § 13, cmt. d (1965). New Hampshire law thus imposes the same consent reguirements as Iowa law .
8The defendants also argue in the alternative that the medical battery count must fail as an informed consent claim. However, as the plaintiff expressly states that this count sounds only in battery, the court does not address the defendants' informed consent argument. See Pl.'s Opp'n to Defs.' Mot. for Summ. J. at 13.
23 plaintiff's mother, Frances Brew:
Frances Brew: Dr. Ferraro recommended us. Recommended that we g o .
[Defendants' Counsel]: For what purpose?
A: To see Dr. Leadbetter again.
Q: And did you meet with Dr. Leadbetter again?
A: Yes.
Q: Did you meet with him prior to his performing this surgery?
Q: How many times did you meet with him prior to the surgery?
A: Once I think.
Q: And how long was that meeting.
A: Brief.
Q: Do you have an approximate time?
A: No, I don't. I'd again be guessing.
Q: And would you tell me what you recall about the discussions during that meeting. Was it just you and Dr. Leadbetter, or was your husband present?
A: No, my husband was not present.
Q: Just you and Dr. Leadbetter?
A: Just Dr. Leadbetter and me. He drew me a diagram and kind of explained, or tried to explain what he was planning; you know, that he thought this could help her. And he said he was going to reimplant her uterus [sic]. And that's about all I remember.
24 A: He drew you a diagram to describe the operation.
Q: Yes.
A: Do you remember any discussion about lengthening of the urethra?
A: No.
Q: Do you remember any discussion and do you remember him showing that in the course of his diagram [sic]?
[Plaintiff's Counsel]: The "that" being the lengthening of the urethra?
A: No, I don't.
Q: Is it possible that he did that but you just don't recall?
A: Well, anything's possible.
Q: Did you sign a consent form for the operation that Dr. Leadbetter performed?
Dep. of Frances Brew, Vol. 1, at 127-28. In support of their
contention that the plaintiff's mother consented to the specific
procedure Leadbetter performed, the defendants rely on the
plaintiff's mother's deposition as follows:
[Defendants' Counsel]: Is it your position that Dr. Leadbetter did not have your consent to perform the procedure he performed on [the plaintiff]?
Frances Brew: No.
Id. at 130. The plaintiff points to other portions of the
deposition to establish that the plaintiff's mother in actuality
25 was not told and did not understand what procedure Leadbetter was
performing and to establish that she therefore could not have
consented to the procedure that Leadbetter did perform:
[Defendants' Counsel]: I take it that he explained to you that he could do a surgery that would make Mary's urethra longer?
[Plaintiff's Counsel]: Objection.
A: I don't know that he used those exact words.
Q: Do you have any memory of what exact words he used?
Q: Did you get the sense from what he was telling you that he was going to do some sort of rebuilding or restructuring of [the plaintiff's] urethra?
A: That he was going to do some sort of restructur ing,but I don't know that he mentioned the word urethra.
Q: That he was going to so some restructuring in her bladder?
A: Or in the area.
Q: What did you understand the operation was at the time of the operation?
A: At the time I thought he was, was working on her original - her congenital problem, which was the bladder neck obstruction, and that somehow, you know, was going to, you know, make it successful
Q: Make what successful?
A: The surgery. The first surgery.
26 Q: I thought you had testified earlier that you understood it was a reconstruction.
[Plaintiff's Counsel]: That the Leadbetter procedure?
[Defendants' Counsel]: Yes.
A: Of the bladder neck.
Q: Okay.
A: Okay.
Q: Is it your testimony that you thought it was the same surgery -
Q: - that Dr. Ferraro was performing?
A: No, not the same surgery.
Q: How was it different, did youunderstand, at the time of the operation?
A: That it was - that he was still working on the same problem. That she still had the same problem. An obstruction. And that he was going to try to see if he could fix it. Dr. Leadbetter.
Q: And what was the reconstruction element of the surgery that you understood?
Q: At the time.
[Defendants' Counsel]: She testified earlier that she understood that part of the procedure was a reconstruction.
[Plaintiff's Counsel]: And then she testified that it was a reconstruction of the bladder neck. And now you're asking what is her understanding of the reconstruction element?
27 [Defendants' Counsel]: I don't think she testified to that.
Q: You understood it was a reconstruction of the bladder neck?
Dep. of Frances Brew, vol. 1, 31, 114-16.
The plaintiff has cast count five solely as a medical
battery claim. From the deposition above, the court finds that
it is apparent that the plaintiff's mother understood that
Leadbetter was going to be performing reconstructive surgery on
the bladder area or the bladder neck, despite the fact that the
exact word urethra was not used. Although the transcript reveals
that the plaintiff's mother may have failed to understand the
underlying reason why Leadbetter was performing the procedure,
and also may have failed to understand the physiological
distinctions between the bladder area, the bladder neck, and the
urethra, it is evident that she grasped the general procedure
that Leadbetter intended to and did perform, and that she
consented to it.9 Therefore, the court finds that there is no
material fact at issue in regards to the medical battery claim
against Leadbetter, and grants summary judgment on this count.
9The court finds it significant that at the deposition the plaintiff's mother maintained her position that she had consented to the procedure Leadbetter performed.
28 F. Malpractice in the Diagnosis and Determination of Treatment: Leadbetter
The plaintiff alleges that in the alternative, to the extent
that Leadbetter performed the reconstructive procedure on the
plaintiff when it was unnecessary, his diagnosis and course of
treatment failed to meet the appropriate standard of care. The
defendants assert that this claim is precluded by the two-year
statute of limitations. This cause of action arose in 1964 when
Leadbetter diagnosed and performed surgery on the plaintiff but
did not accrue until 1990. For the reasons discussed supra, the
court finds that the six-year statute of limitations applies to
this count and it is not time-barred.
G. Intentional Infliction of Emotional Distress: Ferraro and Leadbetter
In count seven, the plaintiff asserts that Ferraro and
Leadbetter are liable for the intentional infliction of emotional
distress against both Ferraro and Leadbetter. The tort of
intentional infliction of emotional distress is recognized in New
Hampshire:
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.
Morancv v. Morancv, 134 N.H. 493, 496, 593 A.2d 1158, 1159 (1991)
29 (quoting Restatement (Second) of Torts § 46 (1965)). The
defendants are liable
only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, "Outrageous!"
Restatement (Second) of Torts § 4 6, cmt. d. Initially, it is for
the court and not the jury to determine whether the defendants'
conduct was so "extreme and outrageous" that liability may lie.
See id., cmt. h.
The plaintiff asserts that defendants Ferraro and Leadbetter
are liable for the intentional infliction of emotional distress
because they: (1) failed to disclose to the plaintiff or her
parents her true medical condition; (2) actively concealed her
true medical condition; and (3) allowed the plaintiff to discover
her true medical condition in a public library. The defendant
asserts that summary judgment is warranted because the
defendants' conduct was not extreme and outrageous.10 On the
10The defendants also argue that both the intentional infliction of emotional distress claim and the negligent infliction of emotional distress claim in count eight are barred by the statute of limitations. They assert that the causes of action arose in 1963 and 1964 and are therefore governed by the two-year statute of limitations. However, as discussed earlier, because neither claim accrued until at least 1990 the six-year
30 claim against Ferraro, the defendants assert that summary
judgment is warranted because: (1) there is no allegation or
evidence that Ferraro affirmatively misrepresented to the
plaintiff or her parents the nature and cause of her
incontinence; (2) all of Ferraro's actions were based upon then-
current medical theory; (3) Ferraro referred the plaintiff to
Leadbetter when the problem persisted; and (4) even if Ferraro
had formed the opinion that his operation had caused the
plaintiff's incontinence and did not communicate this to the
plaintiffs, such conduct is not extreme or outrageous. On the
claim against Leadbetter, the defendants assert that summary
judgment is warranted because: (1) Leadbetter first saw the
plaintiff after the Y-V plasty; (2) the procedure he performed
was the most advanced then available; (3) the cause of the
plaintiff's incontinence was irrelevant to his efforts to solve
her problems; (4) there is no allegation that Leadbetter
affirmatively misrepresented the etiology of the plaintiff's
incontinence to the plaintiff or her parents; and (5) even if
Leadbetter had formed the opinion that Ferraro's operation had
caused the plaintiff's incontinence and did not communicate this
statute of limitations is applicable.
31 to the plaintiffs, such conduct is not extreme or outrageous.11
In this case, the plaintiff's permanent incontinence was
allegedly caused by the malpractice of Ferraro's Y-V plasty,
which apparently severed critical nerves and muscles in the
plaintiff's bladder neck and/or urethra. This iatrogenic injury
in turn caused the plaintiff to become permanently incontinent,
necessitating further treatment. The plaintiff was confronted
with a number of options, including additional surgery and drug
therapy. The plaintiff's true medical condition was never
disclosed to her. As a result, among other things, she was
unable to adeguately evaluate the options presented to her, or to
understand what was happening to her. The plaintiff then elected
to undergo a second surgery, uninformed about why the surgery was
necessary or what its specific ultimate result would be.
Unbeknownst to the plaintiff, this second surgery was
11The plaintiff responds only to the legal arguments asserted by the defendants, stating that she understands the defendants are not making a factual challenge to the claims in count seven. The court finds the defendants' motion challenging the factual sufficiency of count seven as to the affirmative misrepresentations of Ferraro clear: "There is no allegation or evidence that Dr. Ferraro affirmatively misrepresented to the plaintiff or her parents the nature and cause of her incon tinence." See Defs.' Mot. for Summ. J. at 23. However, because the court can determine the viability of count seven without deciding the issue of Ferraro's alleged misrepresentations, the court will address the defendants' challenge to count seven without addressing the misrepresentations.
32 experimental.
As the incontinence persisted, so too did her treatment.
However, without having been appraised of her true medical
condition or her physiological state, the continuing treatments,
including catheterizations, were unnecessarily and extra
ordinarily painful. Possible alternatives were not explored.
Ultimately the plaintiff was left to discover and understand her
medical history and physiological condition almost thirty years
later through information relayed to her by other doctors and
through her own research. Finally, she came to the realization
that her condition was most likely the product of the initial Y-V
plasty, that she participated in an experimental surgery that was
unsuccessful, that her treating doctors failed to explain her
medical condition and her physiology to her, that they allowed
her to continue to misapprehend her condition, that as a result
subseguent care provided her was unnecessarily painful and
injurious to her, including her catheterizations, that other
options available may not have been fully appreciated or
understood, and that she now faces the probability of a urinary
diversion. The court finds that these allegations meet the
"extreme and outrageous" standard and are sufficient to state a
claim for the intentional infliction of emotional distress.
33 H. Respondeat Superior Liability of Concord Urology
The plaintiff asserts that Concord Urology is liable under a
theory of respondeat superior for those acts of Ferraro which
occurred while Ferraro was under its employ. The defendants
assert that Concord Urology could not be liable because Ferraro
was not an employee of Concord Urology at the time the causes of
action arose.
Pursuant to the doctrine of respondeat superior under New
Hampshire law, "an employer may be held vicariously responsible
for the tortious acts of an employee committed incidental to or
during the scope of employment." Trahan-Larouche v. Lockheed
Sanders, 139 N.H. 483, 485, 657 A.2d 417, 419 (1995). To the
extent that Ferraro committed tortious acts while treating the
plaintiff, and those acts were within the scope of Ferraro's
employment by Concord Urology, the acts provide a basis for
Concord Urology's liability on a theory of respondeat superior.
The record indicates that the plaintiff continued to see
Ferraro until 1980. See Defs.' Ap p . at 54. The plaintiff's
medical notes dated May 15, 1980, and August 14, 1980, taken by
Ferraro, are on printed stationary that state at their head
"CONCORD UROLOGY Professional Association" and "case record."
Id. Therefore, while in the employ of Concord Urology, Ferraro
saw, diagnosed, and treated the plaintiff. As recounted above,
34 the plaintiff assert that Ferraro is liable because he: (1)
failed to disclose information to the plaintiff regarding the
relationship between her two operations and her medical condition
after the operations; and (2) failed to provide adeguate post
operative care. These failures allegedly resulted in both the
plaintiff's inability to adeguately review her medical options
and medical treatment that was injurious to her and unnecessarily
painful. Moreover, these acts, among others, form the predicate
for the plaintiff's claims of intentional and negligent
infliction of emotional distress. To the extent that Ferraro
committed these acts while in the employ of Concord Urology,
whether these acts constituted a continuing tort by Ferraro or
independent torts separate from prior tortious acts, the acts
alleged are tortious and allow a claim against Concord Urology
under a theory of respondeat superior. The court therefore
rejects the defendants' motion for summary judgment on this
count.
Conclusion
For the reasons stated above, the court grants the
defendants' motion for summary judgment (document no. 38) as to
35 count 5, alleging medical battery against Leadbetter, and denies
it as to the other counts.
SO ORDERED.
Joseph A. DiClerico, Jr. District Judge
July 28, 1998
cc: Robert A. Backus, Esguire John Traficonte, Esguire Michael R. Callahan, Esguire John E. Friberg, Esguire Ronald L. Snow, Esguire William D. Pandolph, Esguire