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Studnicka v. Pinheiro: US District Court : TORTS - lack of signed consent form not battery per se; consent can be shown otherwise

Civil No. 05-723 (JRT/FLN)
David B. Ketroser, DAVID B. KETROSER, MD, JD, P.O. Box 427,
Hopkins, MN 55343-3830, for plaintiff.
William R. Stoeri and Heather M. McCann, DORSEY & WHITNEY,
LLP, Suite 1500, 50 South Sixth Street, Minneapolis, MN 55402-1498; and
First Street Southwest, Rochester, MN 55905, for defendants.
This case consists of a single medical battery claim brought by George R.
Studnicka, a prison inmate, against the Mayo Clinic Facility (Mayo Clinic) and two of
its doctors, A. Daniel Pinheiro and Kerry D. Olsen. In short, Studnicka contends that the
defendants performed a highly-invasive surgery on him without his consent. After the
defendants were unable to produce a signed informed consent form demonstrating
Studnickas consent to the surgery, this Court denied the defendants motion for
summary judgment. Now, Studnicka brings a motion for summary judgment, arguing
that the absence of a signed consent form conclusively demonstrates that the defendants
committed a battery. For the reasons given below, the Court denies Studnickas motion.
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At all times relevant to this action, Studnicka was an inmate at the Federal
Medical Center in Rochester, Minnesota (FMC-Rochester). FMC-Rochester has a
contract with the Mayo Clinic whereby the Mayo Clinic provides certain medical services
to FMC-Rochesters inmates.
On February 21, 2001, Studnicka was seen by Dr. A. Daniel Pinheiro at the Mayo
Clinic after Studnicka had complained of a neck mass and a prolonged sore throat.
Dr. Pinheiro recommended that a biopsy be performed. On March 1, 2001, Studnicka
was diagnosed with metastic squamous cell carcinoma, a form of cancer.
On March 27, 2001, Studnicka met with Dr. Pinheiro to discuss treatment options.
Dr. Pinheiros notes from this visit include the following:
I had a lengthy discussion with Mr. Studnicka. We will proceed with a
right comprehensive neck dissection. We will attempt to preserve the
accessory nerve unless it is involved by tumor. We will first take biopsies
of his base of tongue. If that is positive, we would plan on resecting it
depending on the size felt intraoperatively most likely through a transhyoid
pharyngotomy. He understands that a temporary tracheostomy will have to
be performed. There is also a small chance that we might have to do a
mandibulotomy and split his mandible for access to the tumor. He also
understands that he will need postoperative radiation because of the size of
his nodes in the neck. We will plan on scheduling that for him tomorrow.
(McCann Decl., Ex. 1 at 100074-75.) Studnicka also met that day with Dr. Kerry D.
Olsen, another doctor at the Mayo Clinic. Dr. Olsens notes from that visit include the
Discussed [transhyoid removal] with patient including, goals, rationale,
risks, treatment, recommendations. Due to the extensive neck disease
would recommend surgery and radiation therapy. Reviewed this in detail.
We will arrange a date for him.
- 3 -
(McCann Decl., Ex. 1 at 100076.)
On April 11, 2001, Dr. Pinheiro and Dr. Olsen performed a radial neck dissection
on Studnicka. A nursing record completed the day of the surgery included a checked box
next to the statement Patient verbalizes understanding of perioperative instructions.
(McCann Decl., Ex. 1 at 100202.) This record also includes a set of initials next to the
statement Planned procedure and Physician confirmed with patient. (Id.) In addition, a
clinic timeline for the day of surgery includes entries for Procedure Verified and
Discussed with Patient/Legal Guardian Prior to Procedure. (McCann Decl., Ex. 1 at
100152.) Finally, an Interoperative Nursing Record, consisting of notes taken by a nurse
during the operation, states that upon Studnickas arrival to the operating room, he could
state surg procedure to neck & purpose. (McCann Decl., Ex. 1 at 100203.)
Absent from the record, however, is anything signed by Studnicka expressly
indicating his consent to the operation. Studnicka contends that he never provided such
consent either in writing or orally and that he made it known that he would not agree
to an intrusive operation. In a grievance attached to his original complaint, Studnicka
indicates that he thought he was at the hospital on April 11, 2001, for a carpal tunnel
operation. (Docket No. 1 at 8.) The Mayo Clinic disagrees, contending that Studnicka
consented to the neck surgery during discussions with both Dr. Pinheiro and Dr. Olsen,
and never objected to the surgery at any time. Studnicka now moves for summary
judgment, arguing that the lack of a signed consent form in his medical chart is
conclusive evidence that the defendants committed a battery.
- 4 -
Summary judgment is appropriate where there are no genuine issues of material
fact and the moving party can demonstrate that it is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(c). A fact is material if it might affect the outcome of the suit,
and a dispute is genuine if the evidence is such that it could lead a reasonable jury to
return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247
(1986). A court considering a motion for summary judgment must view the facts in the
light most favorable to the non-moving party and give that party the benefit of all
reasonable inferences that can be drawn from those facts. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
[A] claim of battery lies against a physician who performs a medical procedure
on a patient without his or her consent. Kohoutek v. Hafner, 383 N.W.2d 295, 298
(Minn. 1986). An action for battery is also appropriate where a treatment consists of a
touching that is of a substantially different nature and character from that to which the
patient consented. Cornfeldt v. Tongen, 262 N.W.2d 684, 699 (Minn. 1977).
Here, Studnicka alleges that he did not consent to the radial neck dissection
performed by the defendants. Studnicka argues that he is entitled to summary judgment
on this claim because the defendants have not produced a signed informed consent form
- 5 -
proving his consent. Studnicka argues that this is appropriate because (1) federal and
state regulations require the presence of such a form in a patients chart1 and (2) these
requirements are designed to protect patients from unwanted procedures. In other words,
Studnicka argues that the informed consent form requirement provides the relevant
standard of care for medical battery, and the failure to produce a signed informed consent
form should constitute battery per se.
The Court does not agree that Minnesotas courts would treat a failure to obtain a
signed informed consent form as conclusive evidence of battery. As an initial matter, the
Court notes that when Minnesotas courts have articulated the test for medical battery,
they have not restricted the possible methods of consent to the signing of an informed
consent form. See, e.g., Kohoutek, 383 N.W.2d at 298. This is consistent with the
approach of a number of other states who have indicated that consent to a medical
procedure may be either express or implied. See, e.g., Godwin v. Danbury Eye
Physicians and Surgeons, P.C., 757 A.2d 516, 520 (Conn. 2000) (finding oral consent to
1 Specifically, Studnicka relies on Minn. Stat. 144.55, subd. 3(a), which states that
[n]otwithstanding the provisions of section 144.56, for the purpose of hospital licensure, the
commissioner of health shall use as minimum standards the hospital certification regulations
promulgated pursuant to Title XVIII of the Social Security Act, United States Code, title 42,
section 1395, et seq. Studnicka argues that this reference to the Social Security Act
incorporates into Minnesota law 42 U.S.C. 1395x(e)(9), which defines hospital, in part, as
an institution which meets such other requirements as the Secretary that hospitals must meet to
comply with the Social Security Act. Studnicka argues that this reference, in turn, incorporates
into Minnesota law 42 C.F.R. 482.51(b)(2), which states that [a] properly executed informed
consent form for the operation must be in the patients chart before surgery, except in
emergencies. The defendants argue that this regulation is not applicable here because it is a part
of a chapter of the Code of Federal Regulations that applies only to Medicare and Medicaid
patients and Studnicka was not a Medicare or Medicaid patient. However, the Court need not
resolve this dispute, because even if this regulation does apply to Studnicka, the Court is not
persuaded that Minnesotas courts would apply a battery per se theory in this case.
- 6 -
a surgical procedure sufficient to defend against a battery claim); Grannum v. Beard, 422
P.2d 812, 814 (Wash. 1967) ([C]onsent to surgery may be manifested in a number of
ways: as an express consent the patient may sign a formal written permission or agree
orally; he may give implied authority by his conduct, as in voluntarily submitting to an
operation, or by failing to object.). Indeed, Studnicka is unable to point to any case in
Minnesota or elsewhere holding that a failure to obtain a signed informed consent form
is conclusive evidence of medical battery.
In addition, at least one Minnesota court has found a genuine issue of material fact
as to a patients consent to a disputed procedure even though the doctors had failed to
acquire consent to that procedure in writing. Kohoutek v. Hafner, 366 N.W.2d 633, 637
(Minn. Ct. App. 1985), revd on other grounds, 383 N.W.2d 295 (Minn. 1986). That
decision is also inconsistent with the notion that the lack of such a form proves medical
battery as a matter of law. Moreover, in the only decision this Court has uncovered that
addresses the theory of battery per se directly an unpublished decision from the Sixth
Circuit that theory was rejected. See Cole v. Cobb, No. 91-5557, 1992 WL 92788, at
*5 (6th Cir. May 4, 1992) (noting that this was a novel theory with no support in the
law). In those circumstances, the Court is not persuaded that Minnesotas courts would
treat the lack of a signed informed consent form as conclusive evidence of battery, under
a theory of battery per se or otherwise. While the absence of such a form will
undoubtedly be critical evidence at trial, under Minnesota law the Mayo Clinic is entitled
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to present evidence that Studnicka manifested his consent in some other manner.
Accordingly, Studnickas motion for partial summary judgment is denied.2
Studnicka also moves to amend the pleadings to add a claim for breach of
contract, alleging the Mayo Clinic breached its contract with FMC-Rochester by failing
to provide services in conformity with community standards. Studnicka argues that he
is able to enforce that obligation because he is a third-party beneficiary of the contract.
If a responsive pleading has already been served, a party may amend its pleading
only with the opposing partys written consent or the courts leave. Fed. R. Civ. P.
15(a). A district court may appropriately deny leave to amend where there are
compelling reasons such as undue delay, bad faith, or dilatory motive, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the non-moving
party, or futility of the amendment. Moses.com Secs., Inc. v. Comprehensive Software
Sys., Inc., 406 F.3d 1052, 1065 (8th Cir. 2005) (quotation omitted). In most cases, delay
alone is insufficient justification; prejudice to the nonmovant must also be shown. Id.
(quotation omitted). However, [t]here is no absolute right to amend. Bediako v. Stein
Mart, Inc., 354 F.3d 835, 841 (8th Cir. 2004).
2 The Court notes that this does not necessarily mean that there are no consequences for a
hospital that fails to acquire signed informed consent forms. If the Mayo Clinic did indeed get
Studnickas consent before the neck surgery, a signed document demonstrating that consent
would have been a key piece of evidence. In addition, if Studnicka is correct that the statutes and
regulations he relies on required such a form, it is conceivable that the Mayo Clinic could face
regulatory consequences. The Court, however, need not take any position on whether the Mayo
Clinic violated its license conditions. The Court merely concludes that the lack of a signed
informed consent form does not prove medical battery as a matter of law.
- 8 -
Here, Studnickas initial complaint was filed on April 11, 2005, more than three
years ago. That complaint does not mention the contract between the Mayo Clinic and
MCF-Rochester and does not include an allegation that it was breached. (See Docket
No 1.) Studnicka later had an opportunity to revisit the substance of his complaint, filing
a motion to amend on September 28, 2006. (Docket No. 124.) The Court granted that
motion. (Docket No. 304.) However, when Studnicka filed his Amended Complaint on
June 19, 2007, he again failed to allege a breach of contract. (Docket No. 333.) These
omissions are consistent with Studnickas repeated assurances that the only remaining
claim was his claim for medical battery. (See, e.g., Docket No. 433 at 1.) In short, over
the course of the more than three years of litigation in this case, there has been no hint
that Studnicka intended to allege a breach of contract.
In addition, Studnickas motion to amend comes well after several critical
deadlines have passed. Following several extensions, discovery in this case closed on
June 1, 2007. (Docket No. 221.) The deadline for filing non-dispositive motions was
also set for June 1, 2007, and the deadline for filing dispositive motions was set for
July 1, 2007. (Id.) Both parties summary judgment motions have been fully briefed and
argued, and with the filing of this order this three-year-old case is now set for trial.
Moreover, allowing Studnicka to add a claim for breach of contract would raise
for the first time in this litigation the nature of the contractual relationship between the
Mayo Clinic and FMC-Rochester. While Studnicka argues that this would not entail
extensive additional discovery or substantially change this litigation, that is not entirely
clear. The contractual provision Studnicka relies on requires that the Mayo Clinic meet
- 9 -
community standards in its delivery of medical services. Studnicka contends that this
is simply a matter of whether it acquired consent forms. However, the Mayo Clinic
would presumably seek to gather and present evidence providing a broader picture of
what the applicable standards consist of, and demonstrating that it acted in compliance.
Those issues may well expand this litigation considerably.
In sum, the Court finds sufficient cause to deny Studnickas motion to amend.
This litigation has gone on for more than three years without Studnicka alleging a breach
of contract, he declined to add this allegation when given an opportunity to amend his
pleadings in June 2007, and both parties dispositive motions have been filed and
resolved. In those circumstances, the Court finds that to delay and expand this litigation
would unduly prejudice the defendants, and denies Studnickas motion to amend. See
Bediako, 354 F.3d at 841 (approving the denial of a leave to amend where discovery had
closed and the opposing party had already moved for summary judgment).
This case will be placed on the Courts next available trial calendar.
Based on the foregoing, all the files, records, and proceedings herein, IT IS
1. Studnickas Motion for Partial Summary Judgment for Battery [Docket No.
453] is DENIED.
- 10 -
2. Studnickas Motion for Leave to Amend Pleadings to Allege Breach of
Contract [Docket No. 473] is DENIED.
DATED: October 24, 2008 ____s/ ____
at Minneapolis, Minnesota. JOHN R. TUNHEIM
United States District Judge


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