Georgia Court Rules That Physician Has No Duty to Inform Patients about Chelation Therapy


Stephen Barrett, M.D.
August 11, 2004

JUDITH MOORE,
Plaintiff,

v.

ROY BAKER, M.D., and
NEUROLOGICAL INSTITUTE OF SAVANNAH, P.C.,
Defendants.

CV 491-93

ORDER

Before the Court is the Defendants’ motion for summary judgment on the issue of informed consent. As explained below, the Court GRANTS this motion. This decision, however, does not dispose of the case in its. entirety. The Court has recently allowed the Plaintiff to amend her complaint to add a claim that the Defendants committed medical malpractice during and after the surgery. This claim remains extant.

BACKGROUND

The facts in this order are derived from the Plaintiff’’s complaint and response to this motion. In March 1989, the Plaintiff, Judith Moore, was suffering from a partial blockage of her left common carotid artery, which impeded the flow of oxygen to her brain and caused her to feel dizzy and tired. She consulted the defendant, Dr. Roy Baker, an employee of the Neurological Institute of Savannah, P.C. (“Neurological”), about her symptoms. Dr. Baker tested Moore and diagnosed a blockage of her left carotid artery due to arteriosclerotic plaque. He recommended that she check into the hospital to undergo a neurosurgical procedure known as carotid endarterectomy to correct her medical problem.

Baker discussed the proposed procedure with Moore, and advised her of the risks of undergoing the surgery. He did not advise her, however, of an alternative treatment known as Ethylene Diamine Tetra Acetic Acid Chelation (“EDTA Chelation”). According to the Plaintiff’s complaint, this alternative procedure is as effective as a carotid endarterectomy but does not entail those risks that accompany any invasive surgery. As explained in more detail below, the mainstream medical community does not recognize or accept EDTA Chelation as an alternative to carotid endarterectomy. A minority of doctors, particularly those who practice holistic medicine, do advocate EDTA Chelation for this use.

Moore signed a written consent allowing Dr. Baker to perform the carotid endarterectomy on April 7, 1989. Initially she appeared to recover well, but soon the hospital staff discovered that Moore was weak on one side. Baker had to reopen the operative wound and remove a blood clot. Although the clot was promptly removed and the area repaired, the clot caused permanent damage to Moore’s brain. As a result, Moore is permanently and severely disabled.

ANALYSIS

I. Summary Judgment

“[T]he purpose of Rule 56 is to enable a party who believes there is no genuine dispute as to a specific fact essential to the other side’s case to demand at least one sworn averment of that fact before the lengthy process of litigation continues.” Lujan v. National wildlife Fed’n, 110 S. Ct. 3177, 3188-89 (1990). The Court “must determine whether there is any genuine issue of material fact and whether the moving party is entitled to judgment as a matter of law.” Warren v. Crawford, 927 F.2d 559, 561 (11th Cir. 1991); Regan v. United States Small Business Admin., 926 F.2d 1078, 1080 (11th Cir. 1991) (both citing Celotex Corp. v. Catrett, 477 U.s. 317, 322 (1986)). Thus, summary judgment is appropriate where the  nonmovant fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial.” Celotex, 477 U.S. at 322.

The “party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of the pleadings, depositions, answers to interrogatories, and admissions on file, if any, which it believes demonstrate the absence of a genuine issue of material fact.” Celotex, 477 U.S. at 323; see Brown v. Crawford, 906 F.2d 667, 670 (11th Cir. 1990), cert. denied, 111 S. Ct. 2056 (1991). The movant typically must discharge this burden by producing evidence that negates an essential element of the nonmovant’s claim. E.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970); Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991).

Only after the movant successfully discharges this initial burden, does the burden shift to the nonmovant to establish, by going beyond the pleadings, that there is a genuine issue as to facts material to the nonmovant’s case. Thompson v. Metropolitan Multi-List, Inc., 934 F.2d 1566, 1583 n.16 (11t