Angel MILLER-MCGEE, Appellant, v. WASHINGTON HOSPITAL CENTER, et al., Appellees.
No. 05-CV-1303.
District of Columbia Court of Appeals.
Argued Dec. 18, 2006. Decided April 12, 2007.
920 A.2d 430
Joan F. Brault, with whom Stuart N. Herschfeld, Rockville, MD, was on the brief, for appellees.
Before FISHER, BLACKBURNE-RIGSBY, and THOMPSON, Associate Judges.
THOMPSON, Associate Judge:
Appellant Angel Miller-McGee sustained an extensive tear of her perineum during a forceps-assisted vaginal delivery of her first child and thereafter suffered fecal incontinence, necessitating a series of corrective surgeries. She appeals from the trial court‘s order dismissing, with prejudice, the action in which she sought to pursue a claim that the defendant hospital and obstetrician performed the assisted delivery without her informed consent. The trial court dismissed the action on the ground that Miller-McGee had failed to amend her complaint to add the lack of informed consent claim after the court had dismissed her other claims. In light of the procedural history of this case, we hold that the trial court abused its discretion in dismissing the suit without affording Miller-McGee an opportunity to amend her complaint. We therefore reverse and remand.
Factual and Procedural Background
On September 1, 2000, appellant gave birth to a baby girl at the Washington Hospital Center. During the delivery, she suffered a large tear of her vagina that was caused by her baby being pulled through her vaginal canal with forceps. The tear developed into a rectovaginal fistula,1 causing appellant to have uncontrollable bowel movements through her vagina. She underwent two surgical procedures to correct the problem. On October 31, 2003, she filed a two-count amended complaint2 in the Superior Court against defendants/appellees Washington Hospital Center Corporation and Dr. Scott Muangman, alleging medical malpractice-negligence (Count I) and negligent infliction of emotional distress (Count II).3 The trial court dismissed Count II after defendants filed an unopposed motion to dismiss that count.
On February 14, 2005, defendants filed a motion for summary judgment, arguing that because Miller-McGee had no expert witness who would testify in the case,4 she would be unable as a matter of law to establish the standard of care, a breach thereof, and proximate causation. On April 11, 2005, the trial court issued its order dismissing the negligent delivery claim. Noting that Miller-McGee contended that her injuries were caused by her child having been delivered forcibly with forceps, the court found that there was no question that expert testimony would have been required to determine the standard of care and to establish what constituted the proper use of force in the delivery of a child. As to Miller-McGee‘s theory that appellees failed to obtain her informed consent to the assisted vaginal delivery that was performed, the court stated, “[w]hile Plaintiff‘s complaint fails to mention a lack of informed consent it is the Court‘s understanding that Defendants had notice of this theory, as evident by their Interrogatory Requests of Plaintiff. . . . Defendants were further put on notice of this theory during the deposition of Defendant Muangman, if not earlier.” The court also found that an “expert opinion was not necessary for the Plaintiff‘s claim of lack of informed consent.” Accordingly, the court‘s April 11, 2005 order granted only partial summary judgment to defendants, stating that “[p]laintiff may go forward with the lack of informed consent issue only.”
On April 28, 2005, defendants/appellees filed another motion to dismiss and/or for summary judgment, asserting that Miller-McGee had not pled a claim of lack of informed consent in either her original or amended complaint and had not sought leave of court to amend her complaint a second time to add such a claim, and arguing that her “failure to amend her complaint to allege Lack of Informed Consent is fatal.” Defendants/appellees also asserted that Miller-McGee “cannot prove her claim of Lack of Informed Consent as a matter of law.” Defendants/appellees argued, and contend again in this appeal, that:
Even if this Court could allow a late amendment, Plaintiff cannot prove that the risk of laceration is a material risk and that there was a viable alternative to an assisted vaginal delivery. Moreover, Plaintiff cannot prove that had she been informed of the risk of vaginal laceration, she would not have consented to the assisted vaginal delivery of her child. As demonstrated by the testimony of Defendants’ expert witness, upon whom Plaintiff intends to rely to support her claim of Lack of Informed Consent, an expectant mother is not routinely given the option of a caesarian section. There must be a medical indication for surgery. In this case a caesarian section was not medically indicated. Therefore, the risk of laceration, and more specifically, rectovaginal tear, was not considered to be a material risk. . . . Accordingly, Plaintiff cannot prove that the risk of laceration was a material risk and that had she been so advised, she would not have consented to the assisted vaginal delivery of her child.
Immediately prior to the delivery of my child at Washington Hospital Center, the birth of my child was discussed and I was specifically advised that because of the size of my unborn child, if there were any complications during the natural delivery process, a caesarian section would be performed. Because a caesarian was a real possibility, I was told that I needed to execute a consent form for that procedure prior to beginning the delivery as it may have needed to be performed without delay. As a result of my discussions, I was led to believe that I would either have a normal delivery or if complications arose, I would have a caesarian birth. At no time did anyone discuss a vaginally assisted birth with me, and at no time did anyone discuss with me the possibility of a recto-vaginal tear that could result from a vaginally assisted birth. No one advised me that as a result of a recto-vaginal tear that I could potentially lose control of my bowels and have uncontrollable bowel movements from my vagina. Had anyone informed me of this possibility, I would have vehemently objected to a vaginally assisted birth especially since I had already agreed to a caesarian if any complications arose during the delivery process.
Miller-McGee also attached to her opposition a copy of her responses to defendants‘/appellees’ interrogatories, in which she stated that she did “not have any specific discussions with anyone regarding the risks, benefits and alternatives of a vaginal delivery.”
On September 30, 2005, the court granted defendants‘/appellants’ motion. Considering matters outside the pleadings and therefore treating the motion as a motion for summary judgment, the court stated that:
[T]he Complaint did not state a claim for lack of informed consent. While defendants were put on notice, sometime afterward, of the “legal theory,” the Plaintiff never formally amended the claim, nor sought leave from this Court to make the amendment even after the court‘s last ruling. Therefore, the issue is not now properly before this Court and should be dismissed.
The court did not reach defendants’ contention that Miller-McGee‘s claim would fail as a matter of law, explaining that:
The Court has already determined that it lacks jurisdiction for the claim of lack of informed consent because it was never pled. Therefore, the Court finds no reason, at this time, to make a legal determination as to whether the claim would have failed as a matter of law.
This appeal followed.
Analysis
For the reasons that follow, we hold that the trial court abused its discretion in granting summary judgment to defendants without affording Miller-McGee an opportunity to amend her complaint to include a claim of lack of informed consent to the assisted vaginal delivery.5
I.
Miller-McGee acknowledges that her amended complaint does not use the
We decline to decide the narrow issue of whether the non-specific allegations pertaining to “medical malpractice-negligence” in Miller-McGee‘s amended complaint were sufficient to state a claim of lack of informed consent. We conclude instead that, taken together, our liberal pleading rules and the procedural history of this case provided a basis upon which Miller-McGee could reasonably regard her amended complaint as having sufficiently pled a claim of lack of informed consent.
We have recognized that ”
The record in this case presents none of the reasons (and the trial court made no findings as to any reasons) that we have said justify denial of leave to amend. Because Miller-McGee‘s amended complaint at least arguably encompassed a claim of lack of informed consent, we cannot find that she unduly delayed by never seeking leave to amend her complaint to add a more definite statement of that claim. Similarly, we see no evidence of bad faith or dilatory motive or repeated failure to cure deficiencies. This is not a case in which the plaintiff failed to state a cognizable claim despite successive amendments, see note 2 supra, such that leave to amend might have encouraged, or appeared to sanction, efforts to delay an inevitable dismissal. There also is no apparent reason why an amendment to add lack of informed consent to the complaint as a new theory of recovery would have occasioned delay or prejudice, because it seems clear that the lack of informed consent claim rests on the same set of facts alleged in the existing amended complaint. The partial deposition transcripts and interrogatory responses that are part of the record on appeal show that, during discovery, counsel explored the facts that bear on the claim of lack of informed consent.9 As the trial court found, the discovery put appellees on notice of the informed consent issue, and the parties have not asserted that an amendment of the complaint to add a claim of lack of informed consent would
Thus, it appears that if Miller-McGee had sought leave of court to amend her complaint to add allegations relating to lack of informed consent even before the court issued its April 11, 2005 order, the court would have abused its discretion in denying her leave to amend.11 See, e.g., Crowley v. N. Am. Telecomms. Ass‘n, 691 A.2d 1169, 1174 (D.C. 1997) (where omission in complaint could be remedied readily without prejudice to defendant and there was no cogent reason to deny a request for leave to amend, court abused its discretion in denying request). Miller-McGee opposed dismissal of her action, relying in part on the court‘s April 11, 2005 ruling, but she did not request leave to amend her complaint, so the question is whether the trial court abused its discretion in not sua sponte affording her an opportunity to amend to avoid dismissal.12
We conclude here, however, that the “procedural history . . . lift[ed] this case out of the realm of the ordinary,” Prudhomme v. Tenneco Oil Co., 955 F.2d 390, 393 (5th Cir. 1992), and created an “exceptional circumstance” that required the court to afford Miller-McGee an opportunity to amend her complaint once the court determined that the complaint was deficient. Because a reasonable interpretation of the April 11, 2005 order was that no
II.
Appellees urge us, in the event that we conclude that Miller-McGee‘s failure to amend her complaint did not warrant dismissal, to reach the issue that the trial court did not reach, i.e., the issue of whether, on the undisputed facts of record, summary judgment was warranted because the lack of informed consent claim would fail as a matter of law. We go on to consider that issue because, as our discussion above indicates, it is pertinent to whether it would have been futile to afford Miller-McGee an opportunity to amend her complaint. We begin by summarizing what a plaintiff must prove to establish liability for failure to obtain informed consent.
Our case law on lack of informed consent recognizes the “duty of a physician to inform the patient of the consequences of a proposed treatment,” a duty that “stems from the right of every competent adult human being to determine what shall be done with his own body.” Crain, 443 A.2d at 561; see also Canterbury v. Spence, 150 U.S. App. D.C. 263, 271, 464 F.2d 772, 780 (1972).16 “In order to prevail in an action based on a theory of informed consent, the plaintiff must prove that if he had been informed of the material risk, he would not have consented to the procedure and that he had been injured as a result of submitting to the procedure.” Cleary, 691 A.2d at 155 (internal quota-
The test for mandatory disclosure of information on treatment of the patient‘s condition is whether a reasonable person in what the physician knows or should know to be the patient‘s position would consider the information material to his decision. The information is material if the reasonable person in what the physician knows or should know to be the patient‘s position would be likely to attach significance to the risks in deciding to accept or forego the proposed treatment. . . . [A]t a minimum, a physician must disclose the nature of the condition, the nature of the proposed treatment, any alternate treatment procedures, and the nature and degree of risks and benefits inherent in undergoing and in abstaining from the proposed treatment.
Crain, 443 A.2d at 562. “[N]ot all risks need be disclosed; only material risks must be disclosed.” Id.17 Thus, to recover on a claim of lack of informed consent, a plaintiff must prove that there was an undisclosed risk that was material; that the risk materialized, injuring plaintiff; and that plaintiff would not have consented to the procedure if she had been informed of the risk. A material risk is a risk “which a reasonable person would consider significant in deciding whether to undergo a particular medical treatment.” Abbey v. Jackson, 483 A.2d 330, 332 (D.C. 1984).
There must be expert testimony to establish some of the elements of proof. See Cleary, 691 A.2d at 153-54. In general, expert testimony is “required to establish the nature of the risks inherent in a particular treatment, the probabilities of therapeutic success, the frequency of the occurrence of particular risks, the nature of available alternatives to treatment and whether or not disclosure would be detrimental to a patient.” Id. (quoting Sard v. Hardy, 281 Md. 432, 379 A.2d 1014, 1024 (1977)). But a plaintiff “can establish a prima facie case of lack of informed consent through the expert testimony of defendant physicians and defense witnesses without calling independent experts.” Tavakoli-Nouri, 745 A.2d at 942 n. 2 (quoting Abbey, 483 A.2d at 333). Issues “not requiring expert testimony typically ask a jury to determine whether an unrevealed risk materialized, whether the physician told the patient about that risk, and whether the physician should have known that knowledge of that risk might affect the patient‘s decision.” Cleary, 691 A.2d at 155.
Here, the trial court had before it evidence (discussed on the transcript pages of Dr. Muangman‘s deposition that were attached to appellant‘s opposition to appellees’ motion for dismissal) that “during the process of delivery, there was a tear of the mother‘s perineum that extended through the rectal sphincter and rectal mucosa” (i.e., “the lining of the rectum” and “the muscle that‘s involved in controlling [fecal] continence“), and that appellant had a “fourth degree perennial [sic] laceration delivery,” a degree of laceration that involves the rectal sphincter and rectal mucosa. In their briefs submitted to this court, appellees do not dispute that appel-
On the issue of whether the risk of an extensive vaginal tear was mate-
rial, appellees rely on the affidavit of their expert, Dr. Donald Chambers, who states that in his opinion “the risk of laceration during delivery was not a material risk in Plaintiff‘s case because a caesarian section was not medically indicated” (italics added). However, the rule in this jurisdiction is that once there has been expert testimony regarding the likelihood of the injury, materiality—i.e., whether a risk is a material risk—is an issue for the fact-finder. See Canterbury, 150 U.S. App. D.C. at 279, 464 F.2d at 788 (“Whenever nondisclosure of particular risk information is open to debate by reasonable-minded men, the issue is for the finder of the facts.“), and 150 U.S. App. D.C. at 283, 464 F.2d at 792 (“Experts are unnecessary to a showing of the materiality of a risk to a patient‘s decision on treatment, or to the reasonably, expectable effect of risk disclosure on the decision.“); see also Kissinger v. Lofgren, 836 F.2d 678, 681 (1st Cir. 1988) (remote or unforeseeable risks are immaterial as a matter of law, but once there is testimony that the injury is a known risk, it is ” ‘the jury‘s responsibility to decide whether that peril was of sufficient magnitude to bring the disclosure duty into play’ “) (quoting Canterbury, 150 U.S. App. D.C. at 285, 464 F.2d at 794).20 Thus, it is
Whether Dr. Muangman disclosed the risks attendant to an assisted vaginal delivery and did so adequately is a jury question. See Crain, 443 A.2d at 564 (“[T]he jury could fairly conclude from the evidence that warnings were not given or, if given, were unreasonably inadequate under the circumstances.“); see also Tavakoli-Nouri, 745 A.2d at 942 (“[Q]uestions of credibility involving whether an individual had been informed of risks and alternatives to a medical procedure are traditionally within the province of the jury.“) (citing Eibl v. Kogan, 494 A.2d 640, 642 n. 2 (D.C. 1985)).
Finally, appellees argue that Miller-McGee cannot prove that she would have withheld consent to an assisted vaginal delivery if she had been informed of the risk of sustaining an extensive vaginal laceration.22 They imply that appellant would have had no choice but to consent, because appellees’ own experts would “not testify that a caesarian was a viable alternative.”23 In the trial court, appellees relied on the affidavit of Dr. Chambers, who stated that “a caesarian section was not medically indicated in Plaintiff‘s case“; that a c-section “is not offered to a patient as an alternative to vaginal delivery or assisted vaginal delivery unless for some reason surgery is medically necessary“; and that “[o]nly when a caesarian is medically indicated, is it considered to be an alternative.” However, the record before us also includes Dr. Muangman‘s deposition testimony that “[i]t was my opinion that, given the station of the baby‘s head and the different delivery options, that the option that would have gotten the baby delivered the most expeditiously was the assisted vaginal delivery, which the patient did agree to” (italics added). Thus, on this factual record, we cannot say that appellant could not prove that had she known of the risk of a rectovaginal fistula, she could have and would have opted for some method of delivery other than a forceps-assisted vaginal delivery.
Furthermore, appellees’ argument that a c-section was not an alternative for appellant because “a c-section is not offered to a patient as an alternative to vaginal delivery or assisted vaginal delivery unless for some reason surgery is medically necessary” (italics added) suggests that professional custom or practice alone may dictate whether the obstetrical patient has an alternative. That suggestion is incorrect as a matter of law.24 As
We note that courts in some other jurisdictions have specifically held that the duty of informed consent requires a physician to inform an obstetrical patient about a cesarean section as an option even if the physician does not believe that it is medically necessary, and even if the physician him-self or herself would not offer to perform the cesarean section. See Harrison v. United States, 284 F.3d 293, 301-02 (1st Cir. 2002) (reasoning that “it is the patient‘s prerogative to balance [the] risks and choose the form of treatment that best meets the patient‘s needs,” reversing the trial court‘s judgment that the doctor was under no duty to afford the patient the opportunity to have a cesarean section, and holding that “because there are only two methods of childbirth, if the district court finds the risk of vaginal birth to be material to the patient, then [the doctor] had a duty to present the alternative option of a C-section that might minimize such risk, regardless of his medical opinion on the proper course of treatment.“);25 Harrison v. United States, 233 F. Supp. 2d 128, 134 (D. Mass. 2002) (noting that the “very purpose of informed consent [is] empowerment of the patient,” and holding that “because there are only two methods of childbirth, once there is a material risk to vaginal birth, the doctor‘s duty to disclose that risk also encompasses the duty to present information about C-sections“); Schreiber v. Physicians Ins. Co. of Wis., 223 Wis. 2d 417, 588 N.W.2d 26 (1999) (holding that where patient in labor informed doctor that she wanted to abandon the plan to which she had previously consented to have a vaginal birth, and to have a cesarean section instead, and doctor “knew that the cesarian delivery was a viable medical option but did not consider it to be medically indicated,” doctor nonetheless had an obligation to conduct a new informed consent discussion and afford the patient the opportunity for a choice of treatment, and rejecting “the notion that the onset of a procedure categorically forecloses a patient‘s withdrawal of con-
We cannot tell from the record here whether a cesarean section would have been one of the options for Miller-McGee given the specific complications that developed with her delivery and the time pressures that surrounded it.27 Among other things, it is not clear to us whether Dr. Muangman‘s testimony that a cesarean section was “not medically indicated” means that a cesarean section would not have been feasible or viable for whatever reason, or that Dr. Muangman would not have been willing to perform one, or that a cesarean section was not necessary, or something else.28 We conclude only that, on the record as it stands before us, it is not a foregone conclusion that Miller-McGee would not have been able to prove, without an expert of her own, that there was an alternative to a forceps-assisted vaginal delivery, and that a reasonable person in her place would have chosen that alternative if informed of the risks that an assisted delivery presents.
Accordingly, for the foregoing reasons, we reverse the dismissal of the lack of informed consent cause of action and remand the case for further proceedings consistent with this opinion.
So ordered.
For me, the crucial procedural fact is that appellant never sought leave to amend her complaint. “A [trial] court is not required to grant a plaintiff leave to amend [her] complaint sua sponte when the plaintiff, who is represented by counsel, never filed a motion to amend nor requested leave to amend before the [trial] court.” Wagner v. Daewoo Heavy Industries America Corp., 314 F.3d 541, 542 (11th Cir. 2002) (en banc).
Stepping back for a moment, it is clear to me that the present (amended) complaint does not allege that the doctor proceeded without the patient‘s informed consent. Those words do not appear in the complaint, nor is that claim fairly inferred from the words that do appear. See Cleary v. Group Health Ass‘n, Inc., 691 A.2d 148, 155 (D.C. 1997) (“informed consent claims concern a duty of the physician which is completely separate and distinct from his responsibility to skillfully diagnose and treat the patient‘s ills” (internal quotation marks and citation omitted)); see also note 3, supra (quoting from amended complaint). We may have “liberal” rules of pleading, see generally In re Estate of Curseen, 890 A.2d 191 (D.C. 2006), but Civil Rule 8 still requires “a short and plain statement of the claim showing that the pleader is entitled to relief[.]”
It is not enough that appellant articulated that theory in discovery. She still is required to plead it, and deposition testimony and answers to interrogatories are not pleadings. See
The majority acknowledges what it calls “the prevalent rule,” that “[a]bsent exceptional circumstances, a [trial] court has no obligation to invite a plaintiff to amend his or her complaint when the plaintiff has not sought such amendment.” Karvelas v. Melrose-Wakefield Hosp., 360 F.3d 220, 242 (1st Cir. 2004). We part company when the majority concludes that “exceptional circumstance[s]” are present here—that the trial court, in effect, “lulled” appellant into complacency. With respect, that conclusion is not fair to the trial court.
It is true that the court‘s order of April 11, 2005, stated that the plaintiff could “go forward on the lack of informed consent issue. . . .” This ruling was based on the court‘s conclusion that defendants “had notice of this theory” from discovery. If the trial court thereafter had changed its mind sua sponte and dismissed for failure to state a claim, that would have been unfair. But on April 28, 2005, appellees filed a renewed motion to dismiss and/or for summary judgment arguing, among other things, that plaintiff was required to plead her claims and that her “failure to amend her complaint to allege Lack of Informed Consent is fatal.” Appellant responded on June 27, arguing first that appellees had been put on notice of that claim through discovery and also that “[i]n her complaint, the plaintiff clearly alleges medical negligence, and lack of informed [sic] is clearly a form of medical negligence.” Appellant had a full opportunity to brief the issue (and to make any related motions) before the court ruled (correctly, in my view) “that the Complaint did not state a claim for lack of informed consent.”
Appellant may have been startled by that ruling, but she cannot claim unfair surprise. She knew her complaint had been attacked for failure to state a claim, and she was not entitled to assume that the trial court would deny the motion. Even if he chose to defend the complaint as drafted, a prudent attorney would have,
Under the circumstances, it is likely that the plain error standard governs our review instead of the already deferential abuse of discretion standard. I need not resolve that question, however, because the Superior Court neither abused its discretion nor committed plain error by failing to grant relief that was never requested. See Greenidge v. Allstate Insurance Co., 446 F.3d 356, 361 (2d Cir. 2006) (“a district court does not abuse its discretion when it fails to grant leave to amend a complaint without being asked to do so“); Karvelas, 360 F.3d at 242 n. 32 (deciding appeal without resolving whether court should review for plain error or abuse of discretion); Emerito Estrada Rivera-Isuzu de P.R., Inc. v. Consumers Union of United States, Inc., 233 F.3d 24, 30 (1st Cir. 2000) (pointing out that plaintiff did not amend complaint as of right—as it could have—or “formally ask the district court after judgment to permit such an amendment,” citing Rules 59 and 60; “we cannot say that the district court committed error, let alone plain error, by failing to invite Emerito to replead.“).
I also am skeptical that appellant can prove her belated claim of lack of informed consent without testimony from an expert witness of her own. I would not reach this complicated issue, however, because I would uphold the trial court‘s dismissal of the complaint.
I respectfully dissent.
THOMPSON, Associate Judge
FISHER, Associate Judge
Notes
Appellees testified that appellants failed to warn them of the risk of infection associated with cortisone injections before embarking on that course of treatment. We agree that the jury could find this was a material risk. Mrs. Allison testified that she would not have agreed to the injections had she been aware of the risk of infection. In fact, Mrs. Allison‘s finger did become infected as a result of the treatment, and Mrs. Allison suffered pain from the infection. Although there was no expert testimony on the standard of care of a physician in obtaining informed consent from his patients, there was expert testimony on the actual risks involved. Thus, appellees established a prima facie case of medical malpractice.443 A.2d at 563-64 (italics added).
Q: Okay. And so would I be understanding you correctly to say that you told her about the possibility of a perineal tear?
A: Yes, that‘s part of my counseling.. . .
Q: Okay, but what I‘m asking you is, did you inform her that she could develop a rectovaginal—she could get a rectovaginal tear from the vaginal delivery, assisted vaginal delivery?
A: I don‘t recall that.
Any competent lawyer defending a physician accused of performing surgery in a negligent manner would investigate not only the narrow issue of how the surgery was conducted, but also the facts and circumstances surrounding the surgery, including the events leading up to it. Whether or not an informed consent claim had been asserted, communications between physician and patient prior to the surgery would be a prime subject of inquiry. Defense counsel would need to learn what the physician said in obtaining the patient‘s consent to the surgery, because counsel would need to know, for example, whether the physician said anything—e.g., about the condition of the patient, the surgery to be performed, or the risks involved—that could be evidence of negligence on the physician‘s part. Thus, even if the original complaint in this case did not mention lack of informed consent specifically, that complaint was nonetheless calculated to cause counsel for [defendants] to focus on the facts that would underlie such a claim as a routine part of defense preparation.Id., 768 A.2d at 557-58; see also Rainer v. Buena Cmty. Mem. Hosp., 18 Cal. App. 3d 240, 254 (Cal. Ct. App. 1971) (“Where additional investigation and discovery is not required to meet the new issue, it would appear that it would constitute an abuse of discretion not to permit the amendment of a complaint [to add a claim of lack of informed consent] even at the outset of a trial, where the amendment merely adds a new theory of recovery on the same set of facts constituting the cause of action.“).
We note, tangentially, that a November 2004 Kaiser Family Foundation report avail-