Bilinski v. Wills Eye Hosp.

RONALD JOSEPH BILINSKI, Plaintiff, v. WILLS EYE HOSPITAL, et al., Defendants.

Civil Action No. 16-2728

United States District Court, E.D. Pennsylvania

September 1, 2021

MEMORANDUM

GERALD J. PAPPERT, J.

Ronald Bilinski sued Wills Eye Hospital, Retinovitreous Associates Limited doing business as Mid Atlantic Retina (MAR) and Dr Samuel K. Houston III claiming injury from a 2014 eye appointment with Dr. Houston. MAR and Houston move for summary judgment on all claims against them. After thoroughly reviewing the briefing and record evidence and holding oral argument, the Court grants the Motion in part and denies it in part for the reasons that follow.

I

A

On June 16, 2014, Bilinski met with Houston, then a first-year vitreoretinal surgery fellow, for an eye appointment at Wills Eye. See (Pl.'s Resp. Ex. U, June 16, 2014 Visit Summary, ECF 204-21); (Pl.'s Resp. Ex. D, Houston Dep Tr. 25:2-6, ECF 204-4); (Pl.'s Resp. Ex. G, Fellowship Webpage, ECF 204-7). MAR ran Houston's fellowship program, but Houston provided retinal care for Wills Eye patients as part of the fellowship. (Pl.'s Resp. Ex. A Sivalingam Dep. Tr. 32:3-4, 49:2-7, ECF 204-1.)^[1]

Bilinski says he made this appointment to have his left eye evaluated after a vitrectomy and to receive clearance for cataract glasses. See (Pl.'s Stmt. of Disputed and Undisputed Material Facts ¶¶ 23-26, ECF 203-1). Houston, however, did not prescribe him glasses or examine only his left eye. (Id. at ¶¶ 30, 38.) Instead, Houston examined both of Bilinski's eyes. (Id. at ¶ 30.) After doing so, he grabbed Bilinski by the shirt and pulled him close, told him he needed to undergo laser treatment because his “eyes [were] going to blow up” and then “looked up at the ceiling and started laughing.” (Pl.'s Resp. Ex. H, Bilinski Dep Tr. 85:10-16, 91:18-20, ECF 204-8.) Bilinski refused the treatment, but then “Houston physically grabbed [him] and led him down a hallway to another room” and performed a panretinal photocoagulation (PRP) laser procedure on Bilinski's right eye. (Pl.'s Stmt. of Disputed Material Facts Precluding Summary Judgment ¶¶ 4, 6, ECF 203-1.); (Pl.'s Resp. Ex. H at 85:17-22, 92:3-19.) Houston did not consult an attending physician before the PRP, and he performed the procedure without supervision. (Pl.'s Stmt. of Disputed and Undisputed Material Facts ¶ 36.)

Bilinski claims he was never advised about the risks of the PRP and “was forced into the procedure against his will.” (Pl.'s Stmt. of Disputed Material Facts Precluding Summary Judgment ¶¶ 5, 7.) He says his appointment with Houston traumatized him, caused deep distrust of doctors and medical institutions and resulted in emotional distress, mental anguish and pain and suffering. (Aug. 18, 2021 Hr'g Tr. 55:14-18, 57:5-58:16, ECF 224.)

B

Bilinski's brother, who joined Bilinski for the beginning of the appointment but not the PRP, corroborates Bilinski's account of Houston's conduct before he performed the procedure, (Pl.'s Resp. Ex. S., D. Bilinski Dep. Tr. 69:14-70:21, 74:5-22, 75:9-76:14, ECF 204-19), but other record evidence leaves room for dispute about Bilinski's full story. As an initial matter, a doctor who met with Bilinski in April of 2016 testified he gave Bilinski an eyeglass prescription then, and Defendants say this shows being cleared for glasses was not the purpose of Bilinski's June 16 appointment. See (Pl.'s Resp. Ex. B, Bailey Dep. Tr. 37:11-38:12, ECF 204-2); (Defs.' Resp. to Pl.'s Stmt. of Disputed and Undisputed Material Facts ¶¶ 24-26). Houston maintains he has never grabbed a patient by the shirt and dragged him down a hallway or performed a laser procedure on a patient who refused it, (Pl.'s Resp. Ex. D at 120:23-121:10), though he does not remember Bilinski as a patient or what he discussed with Bilinski on June 16, 2014, (Pl.'s Stmt. of Disputed and Undisputed Material Facts ¶ 39); (Pl.'s Resp. Ex. D at 39:10-40:4).

Other record evidence further shows that Bilinski may have ultimately consented to the PRP. Bilinski testified that during the procedure he instructed Dr. Houston to “keep going” and “fix” his eye, (Defs.' Reply Ex. 10, Bilinski Dep. Tr. 60:7- 10, ECF 208-10), and a phone message record says Bilinski called Wills Eye on June 20, 2014 and said he “let” Houston perform the PRP, (Pl.'s Resp. Ex. R, June 20, 2014 Telephone Message 4, ECF 204-18). Houston's visit summary for Bilinski says he discussed risks, benefits, alternatives and indications with Bilinski ahead of performing the PRP. (Pl.'s Resp. Ex. U, June 16, 2014 Visit Summary, ECF 204-21); see also (Pl.'s Resp. Ex. Y, June 16, 2014 Procedure Notes, ECF 204-25 (saying risks of PRP explained)). And both Houston and Defendants' medical expert claim patient cooperation is required to perform a PRP because “any significant movement or resistance from the patient would make it impossible to accurately aim and focus the laser on the retina.” (Defs.' Mot. for Summary Judgment Ex. L, Eliott Rpt. 4, ECF 193-14); (Pl.'s Resp. Ex. D, Houston Dep. Tr. 121:11-15).

MAR also has a consent form signed with Bilinski's name and dated June 16, 2014 that manifests agreement to the performance of laser photocoagulation on Bilinski's right eye. See (Pl.'s Resp. Ex. V, ECF 204-22). Bilinski contends the form is “fatally flawed” because it does not contain a time stamp demonstrating when he purportedly gave consent or list fellows, including Houston, as individuals who could perform the procedure. See (Pl.'s Stmt. of Disputed and Undisputed Material Facts ¶¶ 32-34); (Pl.'s Resp. Ex. V); (Pl.'s Resp. to Mot. for Summary Judgment 19). He also says he does not remember signing it and that his signature is forged, see (Pl.'s Stmt. of Disputed and Undisputed Material Facts ¶ 4); (Pl.'s Resp. Ex. H at 95:12-96:13), but Defendants' handwriting expert opines the signature is Bilinski's, (Defs.' Reply Ex. 20, Detwiler Rpt. 3, ECF 208-20).

C

The record further suggests it is unremarkable that Houston performed the PRP without supervision or consulting an attending physician. Like all MAR retinal fellows, Houston was a licensed, board-eligible, “full-fledged ophthalmologist[]” who “r[a]n the [Wills Eye Ophthalmology] clinic independent just like . . . any . . . attending does” when he met with Bilinski. See (Defs.' Mot. for Summary Judgment Ex. Q, Sivalingam Dep. Tr. 77:12-16, ECF 193-19); (Pl.'s Ex. F, Mehta Dep. Tr. 36:4-12); see also (Defs.' Mot. for Summary Judgment Ex. M, Eliott Dep. Tr. 61:7-23). He was credentialed and permitted to perform in-office procedures like PRPs unsupervised without informing or later reporting to an attending physician. See (Pl.'s Resp. Ex. D at 25:18-26:7); (Defs.' Mot. for Summary Judgment Ex. P, Houston Privileges Approved by Thomas Jefferson University Hospital, ECF 193-18 (approving Dr. Houston to perform retina laser procedures)); (Defs.' Reply Ex. 2, Sivalingam Dep. Tr. 62:19-64:10, ECF 208-2). According to Houston and Defendants' medical expert, fellows are fully trained to independently perform PRPs. See (Defs.' Mot. for Summary Judgment Ex. N, Houston Dep. Tr. 24:8-13, 108:18, 109:6, ECF 193-15); (Defs.' Mot. for Summary Judgment Ex. L, Eliott Rpt. 4, ECF 193-14) ((“A first-year retina fellow (or a comprehensive ophthalmologist in their first year of practice) is highly proficient at performing various types of laser procedures for a variety of ophthalmic conditions (including PRP . . .) and does not need supervision for this skill.”); (Defs.' Mot. for Summary Judgment Ex. M at 92:25-93:8); (Defs.' Reply Ex. 21, Eliott Dep. Tr. 93:24-94:9, ECF 208-23). Defendants' expert also believes fellows are “highly proficient at obtaining informed consent and do[] not need supervision for this task.” (Defs.' Mot. for Summary Judgment Ex. L at 4.)

Houston estimates he performed several hundred PRPs during his residency, (Pl.'s Resp. Ex. D at 24:11-13), and at least one hundred unsupervised as a fellow before he met with Bilinski, (id. at 24:18-25, 25:7-12, 27:6-13). He says not only could fellows perform PRPs unsupervised, they themselves supervised residents performing this procedure. See (id. at 23:16-24:7); (Defs.' Mot. for Summary Judgment Ex. N, Houston Dep. Tr. 107:7-23, 108:18-22).

D

Bilinski sued Houston for medical battery and lack of informed consent and seeks to hold Wills Eye and MAR liable under theories of agency and vicarious liability.^[2] (Am. Compl. ¶¶ 59-63, 71-91.)

II

Summary judgment is proper “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P 56(a); see Jutrowski v. Twp. of Riverdale, 904 F.3d 280, 288 (3d Cir. 2018). The movant bears the initial responsibility of informing the Court of the basis for its motion and identifying those portions of the record which it believes demonstrate the absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 145 (3d Cir. 2004), holding modified by Erdman v. Nationwide Ins. Co., 582 F.3d 500 (3d Cir. 2009) (quoting Celotex Corp, v. Catrett, 477 U.S. 317, 323 (1986)). A dispute is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is “material” if it may affect the outcome of the suit under the governing law. Id. A mere scintilla of evidence supporting the nonmoving party will not suffice for a court to deny summary judgment. Id. at 252. Rather, the nonmovant must “set forth specific facts showing there is a genuine issue for trial.” Id. at 256.

At summary judgment, a court may consider any material in the record that may be admissible at trial. See Fed. R Civ. P. 56(c); Pamintuan v. Nanticoke...