The opinion
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STA TE OF MAINE SUPERIOR COURT
CUMBERLAND, ss . CIVIL ACTION
Docket No. CV-2014-404 /
MARTHA BROWN, individually
and as Personal Representative of
REC'D CUMB CLERKS OF;!
JUN 30 '17 PM12:«U ·.
the ESTATE OF RICHARD BROWN,
Plaintiff
ORDER ON DEFENDANT'S MOTION
V. FOR PARTIAL SUMMARY JUDGMENT
PAUL BLOCH, M.D.,
Defendant
Before the court is defendant Paul Bloch, M.D.'s motion for partial summary on the
complaint filed by Martha Brown, individually and as Personal Representative of the Estate of
Richard Brown, arising out of an abdominal aortic aneurysm repair surgery that Dr. Bloch
performed on Mr. Brown in 2011. Defendant seeks a summary judgment on the issue of whether
he received informed consent from Mr. Brown. For the following reasons, the motion is denied.
I. BACKGROUND
In February 2006, Richard Brown was diagnosed with an abdominal aortic aneurysm
(AAA). (Supp.'g S.M.F. ! 1.) A CT scan performed on August 16, 2011 showed the AAA was
5 .2 cm in size. (Supp.' g S .M.F. ! 5 .) Mr. Brown was referred to Dr. Bloch in 2011. (Supp.' g
S.M.F. ! 2.) Dr. Bloch met with Mr. Brown on October 13, 2011, and recommended that Mr.
Brown undergo surgery to repair the aneurysm. (Supp.'g S.M.F." 3-4.)
Mr. Brown signed a consent form on October 13, 2011, which provided that he had been
counseled that the risks of the procedure included "heart attack, heart failure, death, respiratory
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failure, pneumonia, paralysis, nerve injury, renal failure, blood clot to the legs, bleeding,
infection, wound healing problems, migration of device, leakage around graft, injury to
intestines, etc." (Supp.'g S.M.F. ! 15.) The consent form further provided: "[t]he physician
performing the procedure or designee also has explained to me any reasonable alternative
treatment or procedures and, as appropriate, their usual and most frequent risks and hazards. I
understand that I have the right to refuse any suggested procedures or treatment." (Supp.'g
S.M.F. ! 16.) Mr. Brown underwent surgery on November 30, 2011. (Supp.'g S.M.F. ! 7.) He
alleges he suffered damages as a result of complications from the procedure. (Supp.'g S.M.F. !
8.)
In her complaint filed on April 22, 2016, plaintiff alleged, among other things, that
defendant "so negligently advised Richard Brown to have surgery for which he was not suited
and without providing Richard Brown alternatives to the surgery the defendant advised Richard
Brown to have." (Compl. ! 2.) Defendant filed the pending motion for partial summary
judgment on May 2, 2017, plaintiff filed her opposition on May 18, 2017, and defendant filed his
reply on May 30, 2017.
II. STANDARD OF REVIEW
Under M.R. Civ. P. 56, summary judgment is appropriate when review of the parties'
statements of material facts and record evidence to which the statements refer, considered in the
light most favorable to the non-moving party, demonstrates that there is no genuine issue of
material fact in dispute and the moving party is entitled to judgment as a matter of law. Beal v.
Allstate Ins. Co., 2010 ME 20, ~ 11, 989 A.2d 733. A "material fact is one that can affect the
outcome of the case, and there is a genuine issue when there is sufficient evidence for a fact
finder to choose between two competing versions of the facts." Stewart-Dore v. Webster Hosp.
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Ass'n, 2011 ME 26, ,r 8, 13 A.3d 773 (quotation marks omitted). The evidence offered to
establish a dispute as to a material fact, submitted in opposition to a motion for summary
judgment, "need not be persuasive at that stage, but the evidence must be sufficient to allow a
fact-finder to make a factual determination without speculating." Estate of Smith v. Cumberland
Cnty., 2013 ME 13, ,r 19, 60 A.3d 759.
When acting on a motion for summary judgment, a court may not make inferences based
on credibility or weight of the evidence. Arrow Fastener Co. v. Wrabacon, Inc., 2007 ME 34, ~
16, 917 A.2d 123 (citing Emerson v. Sweet, 432 A.2d 784, 785 (Me. 1981)). A party who moves
for summary judgment is entitled to a judgment only if the party opposing the motion, in
response, fails to establish a prima facie case for each element of his cause of action. Lougee
Conservancy v. CitiMortgage, Inc., 2012 ME 103, ~ 12, 48 A.3d 774.
III. DISCUSSION
As a preliminary matter, defendant has objected to certain procedural deficiencies in
plaintiff's opposition to defendant's statement of material facts. Specifically, defendant argues
plaintiff's qualifications do not adequately address defendant's statements of material fact and
instead add additional facts that should be in plaintiff's statement of additional facts. See
Knowlton v. Shaw, 791 F. Supp. 2d 220, 231-245 (D. Me. 2011). The court agrees. Defendant's
statements of material fact in paragraphs 4-7, 9, 16-17, 21-23, 25, 29-32, 34 are admitted. The
court agrees with plaintiff that the form does not provide that Mr. Brown was "counseled" as to
risks. (Supp.'g S.M.F.' 15; Opp. S.M.F.' 15.)
Informed consent in Maine is governed by statutory and case law. Section 2905 provides
in relevant part:
1. Disallowance of recovery on grounds of lack of informed consent. Recovery is not
allowed against any physician, physician assistant, podiatrist, dentist or health care provider
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upon the grounds that the health care treatment was rendered without the informed consent of
the patient or the patient's spouse, parent, guardian, nearest relative or other person
authorized to give consent for the patient when:
A. The action of the physician, physician assistant, podiatrist or dentist in obtaining the
consent of the patient or other person authorized to give consent for the patient was in
accordance with the standards of practice among members of the same health care
profession with similar training and experience situated in the same or similar
communities;
B. A reasonable person, from the information provided by the physician, physician
assistant, podiatrist or dentist under the circumstances, would have a general
understanding of the procedures or treatments and of the usual and most frequent risks
and hazards inherent in the proposed procedures or treatments that are recognized and
followed by other physicians, physician assistants, podiatrists or dentists engaged in the
same field of practice in the same or similar communities; or
C. A reasonable person, under all surrounding circumstances, would have undergone
such treatment or procedure had that person been advised by the physician, physician
assistant, podiatrist or dentist in accordance with paragraphs A and B or this paragraph.
For purposes of this subsection, the physician, physician assistant, podiatrist, dentist
or health care provider may rely upon a reasonable representation that the person
giving consent for the patient is authorized to give consent unless the physician,
physician assistant, podiatrist, dentist or health care provider has notice to the
contrary.
2. Presumption of validity of written consent; rebuttal. A consent which is evidenced in
writing and which meets the foregoing standards, and which is signed by the patient or other
authorized person, shall be presumed to be a valid consent. This presumption, however, may
be subject to rebuttal only upon proof that such consent was obtained through fraud,
deception or misrepresentation of material fact.
24 M.R.S. § 2905 (2017); see also Woolley v. Henderson, 418 A.2d 1123, 1131 (Me. 1980) ("the
scope of a physician's duty to disclose is measured by those communications a reasonable
medical practitioner in that branch of medicine would make under the same or similar
circumstances and that the plaintiff must ordinarily establish this standard by expe1t medical
evidence.").
Considering the facts in the light most favorable to plaintiff, plaintiff has raised an issue
of material fact regarding whether defendant advised Mr. Brown about the option of watchful
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waiting as an alternative to surgery. (Supp.'g S.M.F. ! 18; Opp. S.M.F., 18.) The court declines
to infer that defendant discussed the alternative of watchful waiting, as defendant suggests.
(Reply S.M.F. , 18.) Defendant's informed consent form reveals a requirement that the
physician explain any reasonable alternative treatment or procedures. (Supp.'g S.M.F. , 16.)
Dr. Benjamin Brooke's testimony and expert designation confirm that an explanation of the two
options available to Mr. Brown was required for informed consent. (Supp.' g S .M.F. ,, 24-25 .)
Additionally, plaintiff has raised an issue of material fact with regard to whether Dr.
Bloch was required to inform Mr. Brown about the slow growth of the AAA. Defendant admits
that "he never told either Mr. or Mrs. Brown that based on the CT scan the AAA was slow
growing - growing less than .6 cm in 6 months." (Add. S.M.F. ! 2; Reply S.M.F., 2; Def.'s
Reply Br. 3.) Defendant admits further that "[p]rior to the Nov. 30, 2011 AAA surgery, Dr.
Bloch never informed Mr. or Mrs, Brown that the applicable standard of care was not to operate
on AAA's below the size of 5.5 cm that were slow growing and asymptomatic like Mr.
Brown's." (Add. S.M.F. ! 3; Reply S.M.F. , 3.) Considered in the light most favorable to
plaintiff, Dr. Brooke's testimony confirms that that information was required. (Add. S.M.F. ,,
3-4; Reply S.M.F. jj 3-4.)
On October 13, 2011, Mr. Brown signed a consent form. (Supp.'g S.M.F. j 14.)
Pursuant to section 2905(2) a consent form is presumed to be valid, if it meets the "foregoing
standards[.]" 24 M.R.S. § 2905(2). Section 2905(1)(A) requires that "[t]he action of the
physician ...was in accordance with the standards of practice among members of the same
health care profession with similar training and experience situated in the same or similar
communities." 24 M.R.S. § 2905(1)(A). Plaintiff has raised an issue of material fact as to
whether the consent form satisfied the requirements of section 2905(l)(A) and whether the form
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can be afforded the presumption of validity under section 2905(2) . 24 M .R.S. ,, 2905(l)(A) &
2905(2) .
The entry is
Defendant's motion for Partial Summ ·y Judgment is DENIED .
Dated: June 30, 2017
Nancy Mills
Justice, Maine Superior Court
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PORSC-CV-2014-00404 I MARTHA BROWN VS PAUL H S BLOCH MD
' ase Search Open Financials Print Docket
Filter attorneys for party: - All Parties ~
0 ~ l2l Attorney Party Represertaton - ype Representator Date
~ IS2J Kreisler. David Richard Brown (Estate ... Retained 08/08/2016
~ l2l Kreisler, David Martha Brown - 3 Plain... Retained 08/08/2016
~ l2l Randall, Mark Richard Brown (Estate ... Retained 08/08/2016
~ 1:s21 Randall, Mark Martha Brown - 3 Plain ... Retained 08/08/2016
~ l2l Wuesthoff, Noah Paul H S Bloch MD ~ 2... Retained 10/06/2014
~ 1:s21 Rush, Jennifer Paul HS Bloch MD - 2... Retained 10/06/2014
~ l2l Lavoie, Mark Paul H S Bloch MD - 2... Retained 10/06/2014