Madden’s Complaint included several other counts that have since been dismissed. 1

Judge Kauffman, who presided over this case before it was reassigned to the undersigned,

dismissed Madden’s claims under the Rehabilitation Act, 29 U.S.C. § 701, et seq. (Count VII)

(Docket No. 44). The parties stipulated to dismiss Madden’s claims of fraud and conspiracy

(Count I), wrongful death and negligent supervision (Count II), negligent infliction of emotional

distress (Count IV), and negligent supervision and retention (Count VIII) (Docket No. 70). In

addition, the parties’ stipulation dismissed all claims, including wrongful death and negligence

(Count V) and negligence (Count X) claims, against other then-named Defendants. 

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF PENNSYLVANIA

MICHELLE MADDEN, as Parent and : CIVIL ACTION

Natural Guardian and Administrator of the :

Estate of MYKENZIE MADDEN, a minor, :

deceased :

:

v. :

:

THE A.I. DUPONT HOSPITAL FOR : NO. 05-787

CHILDREN OF THE NEMOURS :

FOUNDATION, WILLIAM I. NORWOOD,:

M.D., PH. D., and CHRISTIAN PIZARRO, :

M.D. :

MEMORANDUM ON DEFENDANT WILLIAM I. NORWOOD, M.D., PH. D.’S

MOTION FOR SUMMARY JUDGMENT

Baylson, J. December 24, 2009

I. Introduction

Plaintiff Michelle Madden (“Madden”), as parent, natural guardian, and administrator of

the estate of the deceased Mykenzie Madden (“Mykenzie”), brings wrongful death and

negligence (Counts III and IX), and lack of informed consent (Count VI) claims against

Defendants William I. Norwood, M.D., Ph. D. (“Dr. Norwood”) and Christian Pizarro, M.D.

(“Dr. Pizarro”). Presently before the Court is Dr. Norwood’s Motion for Summary Judgment 1

(Docket No. 67) seeking to dismiss all remaining claims against him in Plaintiff’s Complaint,
Madden filed a Motion to Consolidate this case with Papacoda v. The A.I. Dupont Hosp. 2

for Children of the Nemours Found., No. 05-3003 (Docket No. 75), and the parties filed crossMotions in Limine seeking to exclude certain evidence at trial (Docket Nos. 68-69). The Court

will address these Motions in separate Memoranda and Orders. 

Although Madden’s Complaint alleged that Dr. Norwood was “the primary surgeon who 3

operated on” Mykenzie (Compl. ¶ 6), it also alleged that Mykenzie was “taken to surgery by Dr.

Pizarro with the assistance of Dr. Norwood,” (Compl. ¶ 19) and Madden subsequently conceded

that “Dr. Pizarro was listed as the primary surgeon and Dr. Norwood assisted during the surgery”

(Mem. of Law in Opp’n to Mot. for Summ. J. ¶ 4, Docket No. 72). This Court will address

Madden’s remaining contention that Dr. Norwood continued to maintain a supervisory role over

2

pursuant to Federal Rule of Civil Procedure 56. Oral argument was held on December 17, 2009. 2

For the reasons that follow, Dr. Norwood’s Motion for Summary Judgment will be granted. 

II. Factual & Procedural Background

Taking Madden’s allegations as true, the relevant facts are set forth as follows. Madden

is the mother of Mykenzie, who was born on February 17, 2003, was diagnosed with serious

heart conditions—Double Outlet Right Ventricle with hypoplastic left ventricle and intact atrial

septum—and passed away on September 3, 2003, following two open-heart surgeries that were

performed at the Dupont Hospital. (Compl. ¶¶ 3, 12.) Madden, a New Jersey resident, brought

Mykenzie to Delaware to have her treated by Dr. Norwood and to undergo a three-stage surgical

procedure. (Def.’s Reply to Pl.’s Resp. to Def.’s Mot. for Summ. J., Ex. H.) Dr. Pizarro and Dr.

Norwood were two cardiac surgeons at Dupont Hospital who operated on Mykenzie. (Compl. ¶

22.) 

On February 21, 2003, four days after Mykenzie was born, Dr. Pizarro performed the first

surgery. (Compl. ¶ 15.) On August 22, 2003, Dr. Pizarro and Dr. Norwood, who were listed on

Mykenzie’s medical charts as primary and assistant surgeons, respectively, performed the second

surgery, a hemi-fontan procedure. (Def.’s Mot. for Summ. J., Ex. A, at 1.) Madden alleges that 3
the surgery in the Discussion Section of this Memorandum. 

3

Drs. Pizarro and Norwood’s use of a “dangerous” and “risk[y]” “‘cooling strategy’ on

cardiopulmonary bypass and for circulatory arrest” during the first two stages of Mykenzie’s

surgical procedure, and “failure to perform the appropriate surgeries” fell below the standard of

care, resulting in Mykenzie’s “preventable death.” (Compl. ¶¶ 118-121.) Madden also alleges

that she was never informed of the high risk, varying success rates, and experimental nature of

the cooling strategy and circulatory arrest procedure used on Mykenzie, nor given a choice to

refuse such a procedure, and that she “justifiably relied to her detriment” upon Drs. Norwood and

Pizarro’s expertise. (Compl. ¶¶ 140-42, 151.) 

 The parties have completed discovery. On September 15, 2009, Dr. Norwood filed this

Rule 56 Motion for Summary Judgment, seeking to dismiss Counts III, VI, and IX against him.

III. Jurisdiction and Legal Standards

A. Jurisdiction

This Court has subject matter jurisdiction under 28 U.S.C. § 1332(a), since the parties are

citizens of different states and the amount in controversy exceeds $75,000. Venue is appropriate

under 28 U.S.C. § 1391(a).

B. Choice of Law

When a federal district court presides over a case grounded in diversity jurisdiction, the

court “must apply the choice-of-law rules of the forum state.” LeJeune v. Bliss-Salem, Inc., 85

F.3d 1069, 1071 (3d Cir.1996) (citing Klaxon v. Stentor Elec. Mfg., 313 U.S. 487, 496 (1941)).

Delaware law applies here and the parties do not dispute which forum state’s law applies. 

(Compl. ¶¶ 114, 199; Def.’s Mot. for Summ J. 5-6.) Accordingly, this Court will apply Delaware
4

law to Madden’s claims against Dr. Norwood.

C. Summary Judgment

Summary judgment is appropriate “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.” Fed. R. Civ. P. 56(c). An issue is

“genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving

party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is

“material” if it might affect the outcome of the case under governing law. Id. 

A party seeking summary judgment always bears the initial responsibility for informing

the district court of the basis for its motion and identifying those portions of the record that it

believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett,

477 U.S. 317, 322 (1986). Where the non-moving party bears the burden of proof on a particular

issue at trial, the moving party’s initial burden can be met simply by “pointing out to the district

court that there is an absence of evidence to support the non-moving party’s case.” Id. at 325. 

After the moving party has met its initial burden, the adverse party’s response must, “by

affidavits or as otherwise provided in this rule[ ] set out specific facts showing a genuine issue

for trial.” Fed. R. Civ. P. 56(e). Summary judgment is appropriate if the non-moving party fails

to rebut by making a factual 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. Under Rule 56, the Court must view the evidence presented on the motion in the

light most favorable to the opposing party. Anderson, 477 U.S. at 255. 

IV. Discussion
5

Madden brings two counts against Dr. Norwood for medical negligence (Counts III and

IX) and one for lack of informed consent (Count VI). Dr. Norwood’s motion for summary

judgment seeks to dismiss all three counts. 

A. Negligence

Under Delaware law, in a medical negligence case, “the plaintiff bears the initial burden

of presenting expert medical testimony as to both the alleged deviation from the applicable

standard of care and the causal connection between the wrongful conduct and the alleged injury.” 

Burkhart v. Davies, 602 A.3d 56, 59 (Del. 1991); see also 18 Del. C. § 6853; McCusker v.

Surgical Monitoring Assocs., 299 F. Supp. 2d 396, 398 (D. Del. 2004). 

1. The Parties’ Contentions

Dr. Norwood avers that “[i]t is undisputed that Dr. Pizarro was the surgeon in charge of

Mykenzie’s surgeries,” meaning that he “orchestrate[d] the conduct of the surgery,” including

“perform[ing] the operation and direct[ing] the cooling and bypass procedures (the parts of the

operation that are criticized by plaintiffs),” whereas “Dr. Norwood merely assisted . . . in the

second operation,” which entails only “exposing the surgical area” (Def.’s Mot. for Summ. J. 6-

7). Dr. Norwood thereby contends that Madden failed to show any fact from which the jury

could determine that Dr. Norwood was in charge of the surgery. 

In response, Madden contends that summary judgment relief is inappropriate because Dr.

Norwood’s “superior experience with the procedure and his role as the team leader” suggest that

Dr. Norwood in fact had a “supervisory role” over the surgery, as Madden’s expert, Joseph

Amato, M.D. (“Dr. Amato”) concluded in his report (Def.’s Mot. for Summ J., Ex. E, at 2). 

Madden further avers that “Dr. Amato criticized both Dr. Pizarro and Dr. Norwood for their
6

handling of Mykenzie’s hemi-Fontan surgery” (Pl.’s Resp. to Def.’s Mot. for Summ. J. 5

(hereinafter “Pl.’s Resp.”)), and therefore that the role Dr. Norwood actually played in the

surgery is a disputed, material fact. 

Dr. Norwood counters that Dr. Amato’s statements constitute “speculation that is not

supported by any evidence in the record,” and that neither the reason why Dr. Pizarro was the

lead surgeon nor Dr. Pizarro’s relative inexperience in performing the type of cardiac procedure

Mykenzie underwent constitutes evidence that counters the evidence showing that Dr. Norwood

only assisted in the surgery. (Def.’s Mot. for Summ J. 8-9; Def.’s Reply to Pl.’s Resp. 2-5.) 

2. Analysis

The first issue is whether Delaware law allows a physician assisting in a surgery to be

held liable for medical negligence. In correspondence requested and received by the Court, the

parties’ counsel agree that there is no precedent under Delaware law as to whether a primary

surgeon alone may be held liable for medical negligence. As a result, the question this case

presents of whether an assisting surgeon can be held liable for medical negligence under

Delaware law is novel. The Court previously stated that such a novel legal issue should be

decided on a full trial record, and not on summary judgment papers. 

The Court has reexamined the relevant portions of the record in light of the oral argument

that took place on December 17, 2009. The Court concludes that there is no genuine issue of

material fact as to Dr. Norwood’s role in the surgery in question. Dr. Norwood has identified

several pieces of evidence indicating that he only assisted in the second surgical procedure. 

Mykenzie’s medical charts listed Dr. Pizarro and Dr. Norwood as primary and assistant surgeons,

respectively. (Def.’s Mot. for Summ. J., Ex. A, at 1.) Dr. Pizarro’s deposition testimony
7

confirmed that Dr. Norwood was “assisting in the [second] surgery,” because the surgeon who

performed the first stage of the surgery, here Dr. Pizarro, usually performed the second stage

surgery as well. (Pizarro Dep.162:7-22, Aug. 5, 2009, Def.’s Mot. for Summ J., Ex. A.) Dr.

Pizarro also testified as follows: 

Q. It says here that Dr. Norwood assisted throughout the procedure. What

does that mean? What does an assistant do in this type of surgery? 

A. What does an assistant do?

Q. Yes.

A. Well, the assistant assists. 

Q. Okay.

A. So generally speaking, he’ll participate in the surgery from the other side

of the table and facilitate exposure, you know, facilitate the repair, et

cetera. 

(Pizarro Dep., 95:24-96:14, Aug. 9, 2006, Def.’s Mot. for Summ J., Ex. D.) Dr. Pizarro thus

testified that as an assistant surgeon, Dr. Norwood’s role was limited to exposing and repairing

the surgical area. In addition, Dr. Norwood’s testified at his deposition, in relevant part: 

A. The primary surgeon orchestrates the conduct of the surgery, and the

assistant does what is necessary to help the primary surgeon accomplish

his mission.

Q. All right. So in this surgery on this patient, Mykenzie Madden, did you

stand on the left or on the right side of the table?

A. On the right-hand side.

Q. And did you orchestrate the conduct of the surgery or did Dr. Pizarro?

A. Dr. Pizarro was the primary surgeon on the left-hand side of the table and

conducted the surgery.

Q. Okay. So I think I understood that the surgery is done the same but your
8

role switches with the role of Dr. Pizarro?

A. Yes.

Q. Okay.

A. It’s distinctly different.

(Norwood Dep. 23:3-24:1 Sept. 2, 2009, Def.’s Mot. for Summ. J., Ex. B.) Dr. Norwood then

testified as follows:

Q. From your experience with the patient, was there anything about her

anatomy that obviated the need for some type of collar or surgical setup

for stent completion”

. . . 

A. The first assistant doesn’t really get an ideal view of the inside of the

atrium. I mean, it’s the assistant’s job to give the primary surgeon that

particular view. 

Being six years ago, I’m not sure I would recall even if I saw

something. But for sure I wouldn’t be able to see the area that I alluded to

when we were talking about that. 

(Norwood Dep. 103:24-104:20.) Dr. Norwood’s testimony affirmed Dr. Pizarro’s contention that

Dr. Pizarro, as the primary physician, conducted and orchestrated the surgery (Norwood Dep.

23:3-24:1), and further averred that the first assistant could not even see the inside of the cardiac

atrium being operated upon, because Dr. Pizarro had that view (Norwood Dep. 103:24-104:20.) 

In light of Mykenzie’s medical charts, and Dr. Pizarro and Dr. Norwood’s depositions, this Court

agrees with Dr. Norwood that all the evidence indicates that Dr. Pizarro, as primary surgeon,

performed and directed the second stage of Mykenzie’s surgery, including the cooling and bypass

procedures, and that Dr. Norwood as Dr. Pizarro’s assistant, did not do anything substantive. 

On the other hand, Madden denies that Dr. Norwood only actually assisted in the second
9

surgery but only provides Dr. Amato’s expert report in support. This report states in relevant

part: “Dr. Pizarro was listed as the primary surgeon and Dr. Norwood assisted during the

surgery. Given Dr. Norwood’s superior experience with this procedure and his role as the team

leader, even as the assistant surgeon it would be assumed that Dr. Norwood maintained a

supervisory role over the surgery.” (Def.’s Mot. for Summ J., Ex. E, at 2.) Dr. Amato also

suggest that “Dr. Pizarro and Dr. Norwood departed from accepted standards of care in [several]

respects” (Def.’s Mot. for Summ J., Ex. E, at 2), and thus, that Dr. Norwood’s negligence

contributed to Mykenzie’s death.

Following the oral argument on December 17, 2009, the Court concludes that Dr.

Amato’s assumption, as noted above, is unwarranted and unsupported by the facts of record and

should be disregarded. The undisputed facts are clear as to Dr. Norwood’s role in the second

surgery, and the actual facts of record negate any liability. Even though Delaware law has not

established any rule specifically stating the circumstances under which an assistant surgeon can

be subject to liability for medical negligence, there is no dispute as to the material facts and no

evidence Dr. Norwood is responsible for any act or omission related to the unfortunate death. 

For this reason, the Court believes that whatever may be the standard under Delaware law for the

liability of an assistant surgeon, in this case there are no facts under which Dr. Norwood could be

liable under any theory of negligence. Thus, the Court concludes that there is no reason to

withhold summary judgment in favor of Dr. Norwood as to the negligence claim.

B. Lack of Informed Consent

The Delaware Supreme Court has clarified that “informed consent is statutorily defined

[by 18 Del. C. § 6852(a)(2)] and requires the patient to demonstrate that the health care provider
10

failed to supply information concerning the treatment or procedure ‘customarily given’ by other’

licensed health care providers with similar training and/or experience’ in the community.” 

Brzoska v. Olson, 668 A.2d 1355, 1365 (Del. 1995); see also 18 Del. C. § 6852(a)(2). “[A]n

informed consent action . . . requires expert testimony as to causation.” Valentine v. Mark, No.

Civ.A. 02C-12-244PLA, 2004 WL 2419131, at *3 (Del. Super. Ct. Oct. 20, 2004); see also Del.

C. §§ 6852-53. 

1. The Parties’ Contentions

Dr. Norwood contends that Dr. Pizarro alone was Mykenzie’s surgeon and that “[t]here is

no evidence that Dr. Norwood, as Dr. Pizarro’s assistant, was responsible for obtaining consent

from Mrs. Madden or . . . ever undertook that duty.” (Def.’s Mot. for Summ. J. 9.) Dr. Norwood

then avers that because “[t]he law clearly places the burden to obtain consent on the surgeon, and

Mrs. Madden’s expert acknowledges as much,” no genuine issue of material fact exists

respecting Madden’s informed consent claim against Dr. Norwood and he is entitled to summary

judgment relief. (Def.’s Mot for Summ. J. 9-10.) 

Madden responds that Delaware law does not provide that “only the surgeon has the

obligation to obtain proper, lawful informed consent, as say, opposed to the hospital where the

surgery takes place,” and relies upon Dr. Amato’s criticism of both Drs. Norwood and Pizarro

“for the fact that no one explained to Mrs. Madden the risks, benefits and alternatives to the

hemi-Fontan.” (Pl.’s Resp. 5-6.) Madden then avers that “Plaintiffs have evidence that both Dr.

Pizarro and Dr. Norwood had . . . duties to obtain informed consent from the mother

beforehand,” and thus, that dismissal of the lack of informed consent claim against Dr. Norwood

is inappropriate on summary judgment. (Pl.’s Resp. 6.) 
11

In reply, Dr. Norwood contends that “Dr. Norwood had no duty as a matter of law to

obtain consent from Ms. Madden,” as Judge Schiller acknowledged in Reger v. Nemours

Foundation, No. 05-CV-0661, Order, at 1, Docket No. 58 (E.D. Pa. Dec. 22, 2006) (Schiller, J.)

(hereinafter “Reger Order”) upon granting summary judgment in Dr. Norwood’s favor respecting

a lack of informed consent claim in a similar case. (Def.’s Reply to Pl.’s Resp. 5.) Dr. Norwood

further alleges that Madden “did not look to [him] for guidance in treating Mykenzie” and

testified at her deposition that she “never spoke to [him].” (Def.’s Reply to Pl.’s Resp. 5.) Dr.

Norwood contends that with respect to the second surgery, Madden spoke with, and gave her

written consent to, Dr. Pizarro. (Def.’s Reply to Pl.’s Resp. 5.) Dr. Norwood thereby maintains

that he cannot, as a matter of law, be held liable under Delaware law for failure to obtain

informed consent. In Reger, the Order of Judge Schiller entering judgment for the defendants

was affirmed. Reger v. DuPont Hospital for Children, 259 Fed. Appx. 499 (3d Cir. 2008). 

2. Analysis 

This Court begins by examining whether Delaware law requires an assistant to a medical

procedure to obtain the patient’s informed consent. Madden has provided no case law or

legislation to this effect, nor can this Court locate any. Instead, Delaware courts have focused

upon “the relationship between physician and patient upon which a medical or surgical

procedural must rest,” in evaluating lack of informed consent claims, Molnar v. Raffetto, No.

Civ. A. No. 87C-AP-109, 1990 WL 177592, at *1 (Del. Super. Ct. Oct. 31, 1990). Here,

Madden conceded at her deposition that she “never spoke with [Dr. Norwood]” directly (Madden

Dep. 39:3, Aug 4, 2009, Def.’s Reply to Pl.’s Resp., Ex. H). Madden also testified that before

each of the first two surgeries, she spoke with Dr. Pizarro, and that she gave him her written
12

consent (Madden Dep. 63:16-64:16, 69:15-20). Madden’s own testimony demonstrates that she

had no relationship with Dr. Norwood, who had not participated in the first stage of the surgery,

prior to the second surgery. Accordingly, the mere fact that Dr. Norwood assisted in Mykenzie’s

second surgery cannot impose a duty upon him to obtain Madden’s informed consent under

Delaware law; rather, as the Massachusetts Supreme Court explained, “[i]t would not be

reasonable to require all of the individuals who only assist in the operating room to obtain the

informed consent of the patient.” Harnish v. Children’s Hosp. Med. Ctr., 439 N.E.2d 240, 245

(Mass. 1982). 

In addition, Madden’s reliance upon the portion of Dr. Amato’s expert report criticizing

Dr. Norwood for the alleged failure to inform Madden as to the risks and experimental nature,

and alternatives to the surgical procedure performed on Mykenzie, is misplaced. Absent

evidence that Dr. Norwood had or undertook a duty to obtain Madden’s informed consent, Dr.

Amato’s conclusion as to Dr. Norwood’s negligence respecting informed consent is speculative,

does not raise an issue of material fact, and therefore cannot preclude summary judgment relief in

favor of Dr. Norwood. 

At the argument on December 17, 2009, Plaintiffs’ counsel was unable to support the

claim of violation of Delaware’s informed consent rules with any specific facts warranting denial

of Dr. Norwood’s motion under this count. In Reger, Judge Schiller dismissed lack of informed

consent claims against Dr. Norwood when Dr. Norwood assisted Dr. Pizarro in another young

child’s cardiac surgery on the basis that “it is further undisputed that medical custom requires

that the lead surgeon obtain informed consent from their patients. Because Dr. Norwood had no

previous contact with [Plaintiffs] and he was not the lead surgeon on [the] procedure, . . . Dr.
13

Norwood cannot be held liable for failure to obtain informed consent.” Reger Order, at 2 n.1. In

this case, as detailed above, this Court reaches the same conclusion, determining that there is no

legal or factual basis for holding Dr. Norwood liable for failing to obtain Madden’s informed

consent, and thus, that Dr. Norwood’s motion for summary judgment should be granted.

V. Conclusion

For the foregoing reasons, Dr. Norwood’s Motion for Summary Judgment will be

granted. 

An appropriate Order follows. 

O:\CIVIL\05-787 Madden v. DuPont\05-787 Madden - Memorandum MSJ.wpd