Jean M. Wachter Robert Wachter v. United States , 877 F.2d 257 ( 1989 )

ERVIN, Chief Judge:

Jean M. Wachter appeals from an order granting defendant, the United States, summary judgment in Wachter’s Federal Tort Claims Act (“FTCA”), 28 U.S.C.A. § 2671 et seq., suit for medical malpractice. The district court found no evidence creating genuine issues that harm had accrued to Wachter from the misrepresentations and failures to disclose that she alleged. We agree, and affirm.

I.

A.

Wachter, then fifty-five years old, entered the Bethesda Naval Hospital (“Bethesda”) for double coronary artery bypass surgery on March 1, 1983. Wachter’s attending surgeon during this hospitalization was Commander Reginald Peniston. Commander Edward L. Woods, Jr., a resident in thoracic surgery, performed Wachter’s March 4, 1983, operation under Peni-ston’s direct supervision. Woods used segments of saphenous veins removed from Wachter’s leg to bypass occluded portions of the native coronary arteries. Prior to the operation, Woods had apprised Wachter of what the saphenous vein graft procedure (“SVG”) involved, what alternative procedures existed, the possible complications and sequelae of SVG ¹ and that the decision whether to proceed was ultimately hers. Wachter indicated that she understood what Woods had said and signed an SVG consent form.

By July, 1983, it had become clear that Wachter’s SVG had failed. Wachter’s symptoms, and the results of a cardiac catheterization, revealed that the grafted veins were between seventy and ninety percent occluded. Bethesda surgeons recommended a second double bypass procedure.

Wachter had begun reading about the heart and bypass surgery while hospitalized after the March operation. After her doctors counseled a second procedure, and with her husband’s assistance, Wachter began a concerted campaign of self-education.² After investigating alternative techniques and facilities, Wachter satisfied herself that entering Bethesda for a second bypass was her only alternative.

It is on what Bethesda surgeons told her when she submitted herself for the second procedure that Wachter’s claims center. Wachter’s primary surgeon for the August 1, 1983, operation was Dr. Donal M. Billig. Billig was then Bethesda’s chief of car-diothoracic surgery.

Since Wachter’s second SVG, the Navy has cashiered Billig based on a number of revelations.³ One of Wachter’s complaints is that she was unable to give her informed consent to the second SYG because Bethesda withheld word of Billig’s shortcomings.

Wachter first met Billig in July, 1983, when Billig delivered the results of Wachter’s cardiac catheterization and recommended an immediate second SVG. Wachter, having reviewed other facilities and procedures, returned to Bethesda later that month. Wachter was still uncertain whether to accept Billig as her primary surgeon, and proceeded to interview one of Billig’s colleagues, Dr. George W. Haggerson,⁴ about Bethesda’s and Billig’s record on second SVGs.

There can be little doubt that Wachter’s questions to Haggerson were designed to elicit information about Billig rather than about SVG or alternative procedures.⁵ Haggerson recited mortality rates for Bethesda and for Billig that apparently did not alarm Wachter. Wachter stated that Haggerson finished by assuring her that in Billig she “was getting one of the finest doctors in the country ... and it was rather senseless ... to go to outside doctors when [she] had the best right here.” There is no evidence that Haggerson then knew anything that should have persuaded him that his statements about Billig were untrue.

The second root of Wachter’s grievance, after her conviction that she received harmful misinformation about Billig, is her belief that Bethesda should have told her about an alternative to SVG, the internal mammary artery bypass procedure (IMA).⁶ IMA uses chest rather than leg vessels as the graft stock for a coronary bypass.

Dr. Robert D. Brickman, whose affidavits Wachter tendered in opposition to the United States’ motion for summary judgment, opined that Billig should have offered Wachter the option of an IMA. Brickman stated that IMA, “although not commonly used throughout the United States in July, 1983, [was] a preferable alternative in selected patients.” While Brickman admitted that the question remained unsettled until well after Wachter’s second SVG, he opined that IMA could have had a higher chance of success than a second SVG in a patient like Wachter. Brickman’s statements make plain that the availability as well as the advisability of IMA for Wachter was problematic in 1983.

Brickman believed that “[p]robably 20 percent” of U.S. hospitals offered IMA in 1983; it is undisputed that Bethesda was not among them.⁷ In 1983, though, only one facility had compared the success rates of IMA and SVG for patients undergoing a second bypass. Brickman was “not sure of” the results of that study. As to Billig’s performance of Wachter’s second SVG, Brickman had no opinion whether Billig “deviated from the acceptable standard in the manner and technique employed in the performance of the bypass grafts.”⁸

B.

Wachter, with her husband, Robert, commenced this action on August 6,1987. The Wachters sought $3,000,000.00 in damages for the failure of Jean Wachter’s second SVG. The second set of vein grafts had, like the first, become occluded and unable to transfer blood at a rate sufficient to alleviate Wachter’s preoperative symptoms.

Wachter’s complaint presented four theories of recovery. The first count generally alleged that Bethesda failed properly to obtain Wachter’s informed consent. The second count charged various acts of medical negligence by Bethesda personnel. Counts three and four alleged that Bethesda negligently hired, supervised, and credentialed Billig.

In response to the United States’ June 3, 1988, motions for summary judgment and for dismissal for lack of subject matter jurisdiction under the FTCA, the Wachters moved voluntarily to dismiss the last three counts of the complaint and so much of the first count as bore on the first SVG. The district court granted both parties’ motions, dismissing with prejudice the bulk of Wachter’s complaint and granting the United States summary judgment on Wachter’s informed consent objection to the second SVG. We do not understand Wachter to dispute the district court’s construction of the applicable law of informed consent. Our attention is accordingly directed only toward the question of whether any genuine issues exist that should have precluded summary judgment.

II.

Maryland law supplies the rules of decision on informed consent in this action. 28 U.S.C. § 1346(b). Sard v. Hardy, 379 A.2d 1014 (Md.1977), is Maryland’s principal elaboration of the doctrine of informed consent. The doctrine “imposes on a physician ... the duty to explain the procedure to the patient and to warn [her] of any material risks or dangers inherent in or collateral to the therapy, so as to enable [her] to make an intelligent and informed choice about whether or not to undergo such treatment.” Id. at 1020. (Citations omitted).⁹ The duty to disclose specifically requires a physician “to reveal ... the nature of the ailment, the nature of the proposed treatment, the probability of success of the contemplated therapy and its alternatives, and the risk of unfortunate consequences associated with such treatment.” Id. (Citations omitted). As to what data are significant enough to warrant disclosure, Sard held the measure to be that of materiality, of whether a reasonable person in the patient’s position would consider the data significant to the decision whether to submit to a particular treatment or procedure. Id. at 1022.

In keeping with the tort character of an informed consent action, Wachter is bound to show that Bethesda’s breach of its duty of informed consent, if it occurred, caused her harm. Lipscomb v. Memorial Hosp., 733 F.2d 332, 338 (4th Cir.1984) (applying Maryland law). Lipscomb interpreted Sard to articulate three elements of a pri-ma facie case of medical malpractice by failure to obtain informed consent. Id. The elements are that: (1) a material, undisclosed risk existed; (2) the risk occurred; and (3) injury flowed from the occurrence. 733 F.2d at 338.

A.

We read Sard to leave at issue whether revelations of information about one’s physician are within the scope of the duty to disclose as Maryland has chosen to define it. We conclude, however, following the district court, that the evidence speaks with one voice that the failure of Wachter’s second SVG does not trace to the competence of Billig and that for another surgeon to have performed the second SVG would not have increased the procedure’s likelihood of success. We refer to Brickman’s affidavit and deposition and to Graeber’s affidavits as the only lode of information about Billig’s performance as it bears on this case. Brickman was forthright about his inability to critique Billig’s conduct, even though Brickman had reviewed evidence of Wachter’s condition after the second SVG. By contrast, Graeber, who had assisted Billig in the August, 1983, surgery, stated that there had been no “notable intraoperative complications” and that the second set of grafts had failed “for reasons not apparently related to the conduct of the [second SVG].”¹⁰ We therefore conclude, following Sard and Lipscomb, that the district court correctly granted summary judgment in favor of the United States on Wachter’s claim insofar as it bears on Billig’s competence.

B.

The district court granted the United States summary judgment on Wachter’s claim that she should have been told of the IMA alternative based on its conclusions that IMA was not, in 1983, a “medically significant” alternative to SVG and that no credible evidence suggested that IMA would have produced a better result. We agree with the district court that Maryland did not require Bethesda to educate Wachter about every conceivable alternative to a second SVG. This conclusion is implicit in Sard’s definition of material information, because a reasonable person would not consider information about experimental or arcane “alternatives” as significant to her decision whether to submit to a recommended procedure. Lipscomb, 733 F.2d at 838; Sard, 379 A.2d at 1022. Rather than expressly ratify the district court’s assessment of the evidence of IMA’s significance in 1983, however, we rest our affirmance on our perception that the evidence does not suggest that information on IMA would have prompted Wachter to elect the procedure or that the procedure would have averted the health problems Wachter now experiences.

The only evidence in Wachter’s favor on this point is Brickman’s affidavit statement that Wachter “was an ideal candidate for an IMA graft.” We believe the district court properly discredited this statement as a “bare conclusion.” The affidavit does not explain the conclusion. A medical journal article, an excerpt from which accompanies Brickman’s affidavit in the record before us, reveals considerable disagreement among surgeons on the relative merits of SVG and IMA.¹¹ Brickman’s deposition also shows that in 1983, only one clinic in the United States had information about the benefits of IMA for a patient whose earlier SVG had failed. Brickman was not sure what results that clinic had witnessed in patients such as Wachter. Brickman remarked that “[t]here’s all kinds of stuff in literature subsequent to [that clinic’s pioneering turn]”, but referred specifically only to the 1980 article attached to his affidavit and to another paper, apparently the product of the same physicians as contributed to the first, that is not in the record. We do not believe Brickman’s evidence suggests that Wachter would have done anything differently had she learned everything known about IMA in 1983.

Even if we assume that Wachter would have sought and been approved for IMA, though, the evidence does not suggest that Wachter would have benefited from the procedure. The evidence tendered by the United States speaks with one voice that Wachter’s current health problems do not stem from the sort of bypass procedure used. Graeber noted that “in [Wachter’s] case SVG grafting of at least one artery was required, even if IMA grafting was attempted, because of specific perfusion needs.” Billig recalled that he did not discuss IMA with Wachter because IMA was “not known to produce a superior result, and required a longer operation ... [Wachter] ... was short and very heavy [and] using an IMA graft would have been very difficult.” Like Graeber, Billig averred that Wachter would have had to have at least one saphenous vein graft in the second procedure and stated “it was not advisable to use both IMA and [SVG] because it required a more tedious dissection ... and might have required more blood transfusions.” This evidence that IMA would not have benefited Wachter, and the infirmity of Brickman’s conclusion that Wachter might reasonably have sought IMA in 1983, persuades us that the district court correctly ruled for the United States on Wachter’s IMA claim.

III.

For the foregoing reasons, we believe the district court was correct to order summary judgment in favor of the United States.

AFFIRMED.

1 . Woods specifically indicated the possibilities of post-surgical hemorrhage, myocardial infarction, stroke, death, infection, and occlusion of the grafted veins.

2 . Despite her doctor's advice that she remain hospitalized for a prompt second SVG following her cardiac catheterization, Wachter insisted that she be discharged to plumb her options. “This time,” Wachter explained in her deposition, "I wanted to get smart.”

3 . While this case only incidentally involves Bil-lig’s relationship with the Navy and patients other than Wachter, we digress to summarize what the record reveals about an imbroglio that has achieved considerable notoriety. The report of the Navy’s Formal Board of Investigation of the Billig affair records a story that, while most disturbing, suggests that Wachter was among the lucky fraction of patients not hurt by Billig’s shortcomings.

The report reveals that at least two Navy officers recommended that the Navy hire Billig as a surgeon while withholding or softpedaling information that two civilian health centers had terminated Billig’s privileges because of incompetence and lack of diligence and that the Air Force had found Billig unqualified for service because of reduced vision in his right eye. The report found Billig’s cardiothoracic surgery mortality rate at Bethesda "unacceptably high”, and presented a number of histories of Bethesda patients who had died from what other surgeons opined was Billig’s culpable negligence. A Navy court-martial subsequently found Billig guilty of, among other things, dereliction of duty.

4 . Haggerson, with Dr. Geoffrey M. Graeber, Director of the Division of Surgery at Washington, D.C.’s Walter Reed Army Institute of Research, and a fourth surgeon, would assist Billig at Wachter’s August 1 operation.

5 . Wachter does not allege that she received insufficient or incorrect reports about her SVG operations. Wachter did not discuss the SVG with Haggerson because, as she stated, “they [i.e. Bethesda] knew I knew” the particulars from her March, 1983, briefing and her independent investigation. Haggerson related that the second SVG would use veins from the leg not used in the first surgery and that a second SVG imported a higher risk of complications, including death, than had the first surgery.

Wachter stated that she had gotten information on "probably three” surgeons other than Billig before entering Bethesda in late July. On the eves of the March and August SVGs, Wachter signed identical consent forms. Among the form’s acknowledgments is that the "possibility of complications [has] been fully explained to [the signatory, who] acknowledge^] that no guarantees have been made to me concerning the results of the operation or procedure....”

6 .Wachter’s memorandum in opposition to the United States’ motion for summary judgment also argued that Bethesda should have told Wachter of a third alternative, that of angioplasty. Angioplasty is a procedure, less intrusive than SVG or IMA, in which a surgeon maneuvers small balloons into the occluded portions of the coronary blood vessels. When inflated, the balloons compress the occluding material against the walls of the vessels, allowing for improved blood flow and eliminating the need for bypass grafts. Wachter’s deposition makes clear that she was familiar with the alternative of angioplasty through her own research, and that she had elected not to pursue the alternative, which Bethesda did not then offer, before entering Bethesda for her second SVG. There is, therefore, no doubt that Bethesda’s omission of the angioplasty alternative did not affect Wachter’s ability to give informed consent to an SVG.

7 . Brickman cited the Norfolk [Va.] General Hospital as a facility near Bethesda that offered IMA in July, 1983. Brickman also stated, however, that of “hundreds” of United States medical institutions, "probably about four or five" would have urged Wachter to elect IMA in 1983.

8 . Brickman candidly admitted that “[t]here’s no way that I could comment on [Wachter’s] case ... because I was not present in the operating room and, therefore, did not observe what actually took place.” Brickman also testified that nothing he had read concerning the second SVG had led him to suspect surgical error. Similarly, Brickman stated at his deposition that he could not conclude that Wachter has been misinformed or underinformed of the risks attending a second SVG.

9 .We assume what the parties have not elected to quarrel over directly, that Bethesda, rather than Haggerson alone, stood as Wachter's "physician” for purposes of our analysis of the sufficiency of disclosures concerning Billig.

10 . Graeber observed that Wachter’s outcome "is often associated with short stature female patients who are obese or have abnormally high serum cholesterol levels” but admitted that he knew "of no definitive means of establishing the precise pathogenesis" of the unfortunate result.

11 . The article, entitled Comparison of Saphe-nous Vein and IMA Grafts, appeared in the September, 1980 issue of the Journal of Thoracic and Cardiovascular Surgery, and appears to be a transcription of a surgeons’ colloquium on experiences with the two procedures.