Superior Court of Connecticut, Judicial District of New Britain, New Britain
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR
Joseph M. Shortall,
Judge Trial Referee
Susan Shea, a former patient of Dr. James Hoffman, has brought this suit against him, Maureen Bracco and Elaine Patterson, respectively an APRN and medical assistant in Dr. Hoffman's office, and their employer, the Hospital of Central Connecticut, for damages she claims to have suffered as a result of a medical procedure performed on April 18, 2011.
Although the three individual defendants are medical professionals, it has been judicially determined that this case is not one alleging professional negligence on their part. Shea v. Hoffman, Superior Court, judicial district of New Britain, Docket No. CV 13 6020286 (Dec. 20, 2013) [57 Conn. L. Rptr. 359, 2013 Conn. Super. LEXIS 2947]. Rather, the claims made against all four defendants are: assault & battery (count one); failure to obtain informed consent (count two); intentional infliction of emotional distress (count three); negligent infliction of emotional distress (count four) and breach of fiduciary duty (count five).
Defendants have filed a motion for summary judgment, to which plaintiff has filed a one-page objection, under oath, stating that
" a homemaker . . . that (sic) works in a doctor's office as an assistant slit my abdomen open on April 18, 2011. She has NO medical credentials. She had NO sterile field set up. She pulled a scalpel out of her pocket. Blood and tissue went up like a breaching whale. She had NO gauze or bandages in the room. She checked every cabinet. Threw me a paper towel and said, 'I'll be right back.' She came back with gauze, and bandages, and stuffed them into the huge hole, covered it up, and sent me on my way." (Emphasis original.)
Plaintiff's objection, shorn of those statements that seem to claim that the procedure on April 18, 2011 was performed negligently,  swears that it was performed by Dr. Hoffman's medical assistant, Ms. Patterson, rather than his APRN, Ms. Bracco. To the contrary, the defendants claim that it was performed by Ms. Bracco, who informed Ms. Shea of the procedure and its risks and benefits and alternatives to the procedure and obtained her informed consent.
Because the plaintiff is self-represented and the allegations of the complaint appear to be serious, the court has taken pains to review the defendants' legal authorities and supporting documentation to determine whether their motion should be granted.
" Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Sherman v. Ronco, 294 Conn. 548, 553-54, 985 A.2d 1042 (2010).
A material fact is one that would alter the outcome of the case. Hammer v. Lumberman's Mutual Casualty Co., 214 Conn. 573, 578, 573 A.2d 699 (1900). " The test is whether a party would be entitled to a directed verdict on the same facts." (Internal quotation marks omitted.) Connell v. Colwell, 214 Conn. 242, 246-47, 571 A.2d 116 (1990).
" In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . ." Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).
The plaintiff's first count alleges assault and battery on the part of the defendants in that the defendant Elaine Patterson " was not licensed or credentialed to perform surgical procedures and committed an assault and battery on Susan Shea by performing surgery on the Plaintiff." In count two the plaintiff alleges that Dr. Hoffman failed in his obligation to give her " information regarding the risks, benefits, alternatives, hazards and complications of the procedure performed on April 18, 2011 by Elaine Patterson."
" The theory of battery as a basis for recovery against a physician has generally been limited to situations where he fails to obtain any consent to the particular treatment or performs a different procedure from the one for which consent has been given, or where he realizes that the patient does not understand what the operation entails." Logan v. Greenwich Hospital Assoc., 191 Conn. 282, 289, 465 A.2d 294 (1983). " In order to prevail on a cause of action for lack of informed consent, a plaintiff must prove both that there was a failure to disclose a known material risk of a proposed procedure and that such failure was a proximate cause of the injury." Shortell v. Cavanagh, 300 Conn. 383, 388, 15 A.3d 1042 (2011). Whether a patient is adequately ...