The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING IN PART AND GRANTING IN PART DEFENDANTS' PARTIAL SUMMARY JUDGMENT MOTION
Plaintiff, Julie Ann Treib, sued defendant, Dr. Dennis J. Glatt, alleging causes of action of medical negligence, violation of informed consent, and battery and seeking compensatory and punitive damages. Treib also seeks damages from Sanford Clinical Surgical Associates on a respondeat superior theory. Defendants move for summary judgment on all claims except the battery claim. Treib resists summary judgment on all claims except the medical negligence claim. The motion is denied in part and granted in part.
In the light most favorable to Treib, the nonmoving party, the facts are as follows:
To relieve her suffering from hernias that were obstructing her colon, Treib underwent surgery in June of 2008. Dr. Maresh performed the surgery in an operating room under general anesthesia. The surgery included a bowel resection and implantation of nylon mesh to repair the hernias. Treib developed an infection following the surgery. In July of 2008, Dr. Maresh went on leave and Sanford Surgical transferred Treib's case to Dr. Glatt. In August, Dr. Glatt performed surgery on Treib in an operating room with anesthesia to reopen the wound and clean out the infection. Treib continued to suffer from an infection. On November 11, 2008, Dr. Glatt performed another surgery on Treib in an operating room under anesthesia to remove the mesh, which he determined to be a source of Treib's inability to heal.
On November 20, 2008, Dr. Glatt reopened the wound site in Treib's hospital room without providing Treib with anesthesia. He also did not scrub for the procedure, did not wear a surgical mask or gown, and may not have worn gloves.
Before the November 20 procedure, Treib strenuously objected to Dr. Glatt's performing the procedure in her hospital room without anesthesia. Nurses present at the time also allegedly expressed their concerns about Dr. Glatt's actions. During the procedure, Treib experienced extreme pain, yelled out in pain, told Dr. Glatt to stop, and gripped her bed rails hard enough to bruise her hands.
Treib filed suit against Dr. Glatt and his employer, Sanford Surgical. She seeks compensatory damages for the pain and suffering she experienced during and after the procedure and punitive damages.
Federal Rule of Civil Procedure 56(c)(2) provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Only disputes over facts that might affect the outcome of the case will preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is inappropriate if a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.
The moving party bears the burden of bringing forward sufficient evidence to establish that there are no genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The court views the facts "in the light most favorable to the party opposing the motion." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (internal citation omitted). Similarly, the nonmoving party receives "the benefit of all reasonable inferences to be drawn from the underlying facts" in the record. Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980) (citing Adickes v. S. H. Kress & Co., 398 U.S. 144, 158-59 (1970)).
I. Medical Negligence Claim
Treib contends that defendants are liable under a theory of medical negligence. Defendants deny any liability under that theory because Treib failed to provide expert testimony that Dr. Glatt breached the standard of care. Treib does not resist summary judgment on this claim. Accordingly, summary judgment is granted on the medical negligence claim.
II. Informed Consent Claim
Treib argues that Dr. Glatt did not obtain her informed consent before performing the procedure in her hospital room without anesthesia. Defendants respond that Dr. Glatt did obtain ...