Argued
May 22, 2018
Procedural
History
Action
to recover damages for, inter alia, battery, and for other
relief, brought to the Superior Court in the judicial
district of Fairfield, where the court, Radcliffe,
J., granted the named defendant's motion to
dismiss; thereafter, the court granted the plaintiff's
motion to cite in the named defendant as a party defendant
and the plaintiff filed an amended complaint; subsequently,
the court granted the motion to dismiss filed by the
defendant Yale University and rendered judgment thereon;
thereafter, the court granted the named defendant's
motion for summary judgment and rendered judgment thereon,
from which the plaintiff appealed to this court.
Reversed; further proceedings.
John
L. Cesaroni, with whom was James R. Miron, for the appellant
(plaintiff).
Tadhg
Dooley, with whom, on the brief, was Jeffrey R. Babbin, for
the appellee (named defendant).
OPINION
ELGO,
J.
This
case concerns the conduct of a physician who discovered a
complication during a postoperative examination. The
plaintiff, Lauren Wood, appeals from the trial court's
dismissal of her August 25, 2015 amended complaint, which
alleged one count of battery and one count of negligent
infliction of emotional distress against the defendant,
Thomas J. Rutherford, M.D.[1] The plaintiff claims that the court
improperly concluded that those counts sounded in medical
malpractice and, thus, required compliance with General
Statutes § 52-190a. The plaintiff also challenges the
propriety of the summary judgment rendered by the court on
her February 8, 2016 revised complaint, which alleged that
the defendant failed to obtain her informed consent before
embarking on a course of treatment for a complication
discovered during a postoperative examination. We agree with
the plaintiff that the court improperly dismissed the battery
and negligent infliction of emotional distress counts of her
August 25, 2015 amended complaint, as those counts were
predicated on an alleged lack of informed consent. We further
conclude that a genuine issue of material fact exists as to
whether a substantial change in circumstances occurred during
the course of medical treatment that necessitated a further
informed consent discussion between the parties, rendering
summary judgment inappropriate. We, therefore, reverse the
judgment of the trial court.
The
operative complaints, the plaintiff's August 25, 2015
amended complaint and her February 8, 2016 revised complaint,
contain similar factual allegations. In both, the plaintiff
alleged that, at all relevant times, she was a patient of the
defendant, a licensed gynecological oncologist. She further
alleged that ‘‘[o]n April 25, 2014, the plaintiff
underwent a surgical procedure known as a CO2
laser ablation[2] of the vulva [to remove precancerous
growths] that was performed by [the defendant] at Yale
University Gynecologic Center . . . . On May 14, 2014, upon
the advice of [the defendant], the plaintiff returned to Yale
University Gynecologic Center for a postoperative
examination. During the postoperative examination . . . [the
defendant] discovered that the plaintiff's labia [were]
agglutinated.[3]During the postoperative examination . . .
[the defendant], without any warning or notice to or
consent from the plaintiff . . . forcefully inserted his
fingers through the plaintiff's agglutinated labia and
into her vagina.'' (Emphasis added; footnotes added.)
The plaintiff further alleged that she sustained injuries as
a result thereof, including ‘‘scarring and
impairment to her vulva and vagina . . . .''
The
plaintiff commenced this action in 2015. Her August 25, 2015
amended complaint contained two counts against the defendant
that alleged that his conduct during the postoperative
examination constituted battery and negligent infliction of
emotional distress. In response, the defendant filed a motion
to dismiss, in which he argued that ‘‘regardless
of the caption applied to them by the plaintiff, both of the
claims . . . are for medical malpractice. As such, the
plaintiff is required by [§] 52-190a[4] to attach to the
complaint a good faith certificate and written opinion
letter. The plaintiff's failure to attach these documents
is fatal to her claim and mandates that it be
dismissed.'' (Footnote added.)
The
court heard argument from the parties on that motion on
October 19, 2015, at which the plaintiff's counsel
acknowledged that the plaintiff had consented to the
postoperative examination on May 14, 2014, but not to the
defendant forcefully separating her agglutinated labia
without warning or notice to her.[5] The plaintiff's counsel
emphasized that, in her complaint, the plaintiff did not
‘‘allege that there was a deviation of the
standard of care. . . . We don't allege negligence in
this case.'' Counsel then stated that count one of
the complaint ‘‘is not a negligence case. Count
one is a battery case, and the theory of battery as a basis
for recovery'' against the defendant was his failure
to obtain informed consent. Counsel continued:
‘‘We don't claim negligence at all. Our claim
here is that [the plaintiff] had no knowledge . . . and was
not informed . . . and didn't consent to [the defendant]
sticking his fingers into her vagina the way he did . . .
.'' In response, the court stated in relevant part:
‘‘[Y]ou certainly have every right to plead that
this was a surgical procedure, that there was a lack of
informed consent and, as a result of a lack of informed
consent, the plaintiff sustained damages . . . . That you can
do. You can't transform . . . what amounts to a medical
negligence or malpractice claim into a tortious action for
purposes of circumventing § 52-190a . . . .''
The court then made an express finding that the three factors
determinative of whether a negligence claim sounds in medical
malpractice[6] all were satisfied. The court thus
granted the motion to dismiss ‘‘without prejudice
to the plaintiff filing a separate action claiming a lack of
informed consent . . . .''[7]
Nine
days later, the plaintiff requested leave to amend her
complaint pursuant to Practice Book § 10-60, which the
court granted. The plaintiff thereafter filed an amended
complaint claiming that the defendant had failed to obtain
her informed consent before embarking on a course of
treatment for a complication that he discovered during the
postoperative examination. More specifically, the plaintiff
alleged in her February 8, 2016 revised complaint that the
defendant's actions during the postoperative examination
‘‘violated his duty to provide the plaintiff with
information that a reasonable patient would have found
material for making a decision to embark upon the course of
treatment performed by [the defendant] in that: (a) [the
defendant] failed to inform the plaintiff as to the nature of
the procedure he performed because he did not give her any
warning or explanation of said procedure; (b) [the defendant]
failed to disclose any risks and hazards of the procedure;
(c) [the defendant] failed to discuss any alternatives to the
procedure he performed where, upon information and belief,
other procedures were available; and (d) [the defendant]
failed to disclose any anticipated benefits of the procedure
he performed.'' In his answer, the defendant admitted
that, while conducting the postoperative examination, he
discovered that the plaintiff's labia were agglutinated.
He further admitted that ‘‘during the
postoperative examination, [he] separated the skin of the
labia by inserting a finger through the
agglutination.''[8] The defendant otherwise denied the
substance of the plaintiff's lack of informed consent
claim.
On
October 3, 2016, the plaintiff filed a certificate of closed
pleadings with the trial court, in which she claimed a jury
trial. The defendant filed a motion for summary judgment on
November 15, 2016, arguing that ‘‘[t]here is no
triable issue of fact . . . because the incident in
question-the separation of agglutinated labia during a
postoperative examination of the plaintiff's vagina-was
not a ‘procedure' requiring consent. Even if it
[was], the plaintiff consented to [the defendant] performing
the vaginal exam, which necessarily included separating her
labia to observe the surgical site.'' That motion was
accompanied by three exhibits, including the defendant's
November 4, 2016 affidavit and his August 17, 2016 responses
to the interrogatories of the plaintiff.
On
January 23, 2017, the plaintiff filed an objection to the
motion for summary judgment, arguing that the defendant,
after discovering the complication during the postoperative
examination, ‘‘performed an invasive procedure,
which constitutes a course of treatment triggering a
physician's duty to inform.'' The plaintiff noted
that the ‘‘cases that find a course of treatment
that triggers a physician's duty to provide informed
consent share the fact that they involve the physician
providing, or attempting to provide, a therapeutic remedy to
the plaintiff. The mechanism of the treatment itself is not
important, but rather, the key element is that a medical
treatment was provided.'' Because the defendant
provided a medical treatment to remedy her labial
agglutination, the plaintiff argued that he was obligated to
apprise her of ‘‘any material risks or
alternatives'' prior to embarking on that course of
treatment. In support of her assertion that the defendant
provided a medical treatment, the plaintiff appended to her
objection (1) a copy of her answers to certain
interrogatories, (2) affidavits of the plaintiff and her
mother, Janice Andersen, and (3) copies of five Superior
Court decisions.
The
defendant filed a reply to the plaintiff's objection on
February 1, 2017, in which he maintained that the
plaintiff's consent to the laser ablation procedure
included her consent to the postoperative examination, as
that examination was ‘‘not a separate course of
therapy from the operation.'' The defendant further
submitted that ‘‘[t]he uncontroverted evidence
shows that [he] had to separate the plaintiff's labia,
which were agglutinated, in order to examine the surgical
site.'' A copy of the plaintiff's signed consent
to the laser ablation procedure was included as an exhibit to
that reply.[9]
The
court held a hearing on the motion for summary judgment on
February 6, 2017, at which the defendant's counsel
contended that the May 14, 2014 postoperative examination did
not involve a procedure of any kind. The court then inquired
as to whether the plaintiff's counsel had
‘‘any authority that says that this type of thing
is a procedure''; counsel responded that there was
‘‘nothing in Connecticut that says that this . .
. is or is not a course of treatment under the standard [set
forth] in Logan [v. Greenwich Hospital
Assn., 191 Conn. 282, 292, 465 A.2d 294
(1983)].'' The plaintiff's counsel nevertheless
argued that, after discovering the labial agglutination, the
defendant failed to disclose to the plaintiff the nature of
the course of treatment he ultimately undertook to resolve
that medical complication. Counsel reminded the court that
the affidavits submitted by the plaintiff and Andersen in
opposition to the motion for summary judgment both indicated
that the defendant told them that he performed the digital
separation of the agglutination ‘‘to avoid having
to go into the operating room'' to resolve that
complication.[10] Counsel then rhetorically asked
what the difference was between a course of treatment in an
operating room and a course of treatment in an examination
room, before stating: ‘‘[T]he take home message
is that the form of treatment is not what's important.
It's that the doctor . . . and the patient embark on a
course of treatment, and the patient has to go into it with
open eyes, and that just didn't happen here.''
The plaintiff's counsel concluded his remarks by noting
that the defendant ‘‘provided a treatment. [The
plaintiff's] labia [were] fused together, and he
separated [them]. There certainly is some evidence that
[separation] could have been done in an operating room, and
maybe it should have. [The plaintiff] deserves to be able to
explore that. And certainly if [the defendant] can refute
that, that's fine, but it's an issue of fact to be
decided in this case by the trier of fact . . . .''
When
those arguments concluded, the court stated that it
‘‘makes a finding that the activities of [the
defendant], in examining the surgical site following a
surgical procedure which took place three weeks earlier, is
not a procedure which would give rise to the duty to inform
the plaintiff that a certain portion of the examination of
the surgical site might induce pain and [to conclude
otherwise] would extend the definition of a surgery far
afield. Under Logan [v. Greenwich Hospital
Assn., supra, 191 Conn. 292], informed consent deals
with a procedure, an operation or surgery. This was not an
operation. It was not surgery. It was not a procedure in and
of itself. It was, rather, part of another examination for
which the [defendant] received the written consent of the
plaintiff. So, the motion for summary judgment is
granted.'' Accordingly, the court rendered judgment
in favor of the defendant, and this appeal followed.
I
We
first consider the plaintiff's challenge to the dismissal
of her August 25, 2015 amended complaint against the
defendant. Although that complaint contained counts labeled
battery and negligent infliction of emotional distress, the
trial court determined that, despite the nomenclature
employed by the plaintiff, those counts both sounded in
medical malpractice. As a result, the court held that the
plaintiff's failure to comply with the strictures of
§ 52-190a required dismissal of those counts due to lack
of personal jurisdiction. That determination warrants closer
scrutiny.
‘‘When
a . . . court decides a . . . question raised by a pretrial
motion to dismiss, it must consider the allegations of the
complaint in their most favorable light. . . . In this
regard, a court must take the facts to be those alleged in
the complaint, including those facts necessarily implied from
the allegations, construing them in a manner most favorable
to the pleader.'' (Internal quotation marks omitted.)
CitiMortgage, Inc. v. Gaudiano, 142
Conn.App. 440, 441, 68 A.3d 101, cert. denied, 310 Conn. 902,
75 A.3d 29 (2013); see also Morgan v. Hartford
Hospital, 301 Conn. 388, 395, 21 A.3d 451 (2011)
(‘‘[i]n any consideration of the trial
court's dismissal, we take the facts as alleged in the
complaint as true''). As our Supreme Court has
recognized, the failure to attach a proper written opinion
letter pursuant to § 52-190a to a complaint alleging
injury due to the medical negligence of a health care
provider ‘‘implicates personal
jurisdiction'' and mandates the dismissal of an
action. Morgan v. Hartford Hospital, supra, 402; see
also General Statutes § 52-190a (c) (failure to provide
written opinion letter ‘‘shall be grounds for the
dismissal of the action''). ‘‘Our review
of a trial court's ruling on a motion to dismiss pursuant
to § 52-190a is plenary.'' Torres v.
Carrese, 149 Conn.App. 596, 608, 90 A.3d 256, cert.
denied, 312 Conn. 912, 93 A.3d 595 (2014).
The
present case requires us to construe the nature of the causes
of action alleged in the plaintiff's August 25, 2015
amended complaint to determine whether compliance with §
52-190a was necessary.[11] ‘‘The interpretation
of pleadings is always a question of law for the court . . .
. Our review of the trial court's interpretation of the
pleadings therefore is plenary. . . . [W]e long have eschewed
the notion that pleadings should be read in a hypertechnical
manner. Rather, [we must] construe pleadings broadly and
realistically, rather than narrowly and technically. . . .
[A] pleading must be construed reasonably, to contain all
that it fairly means, but carries with it the related
proposition that it must not be contorted in such a way so as
to strain the bounds of rational comprehension. . . .
Although essential allegations may not be supplied by
conjecture or remote implication . . . the complaint must be
read in its entirety in such a way as to give effect to the
pleading with reference to the general theory upon which it
proceeded, and do substantial justice between the
parties.'' (Citations omitted; internal quotation
marks omitted.) Grenier v. Commissioner of
Transportation, 306 Conn. 523, 536-37, 51 A.3d 367
(2012).
A
Battery
We
begin with the first count of the August 25, 2015 amended
complaint. It alleges in relevant part that, during the
postoperative examination, the defendant
‘‘without any warning or notice or consent from
the plaintiff, intentionally, wantonly and/or forcefully
inserted his fingers through the plaintiff's agglutinated
labia and into her vagina.'' Count one further
alleges that the defendant's conduct
‘‘constituted a battery in that his actions were
harmful and/or offensive to the plaintiff'' and
concludes by alleging a variety of injuries that the
plaintiff sustained as the ‘‘result of the
harmful and/or offensive conduct'' of the defendant.
In dismissing that count, the court concluded that those
allegations constituted a claim of medical negligence on the
part of the defendant, which necessitated compliance with
§ 52-190a. We disagree.
As the
plaintiff emphasized at the hearing on the defendant's
motion to dismiss, and as the complaint plainly indicates,
her battery claim was predicated on the lack of informed
consent. Our Supreme Court has ‘‘long recognized
the principle that [e]very human being of adult years and
sound mind has a right to determine what shall be done with
his own body; and a surgeon who performs an operation without
his patient's consent, commits an assault, for which he
is liable in damages.'' (Internal quotation marks
omitted.) Godwin v. Danbury Eye Physicians &
Surgeons, P.C., 254 Conn. 131, 136, 757 A.2d 516 (2000).
In Logan v. Greenwich Hospital Assn., supra, 191
Conn. 289, the Supreme Court clarified that a patient can
recover on a ‘‘theory of battery as a basis for
recovery'' against a physician in three limited
circumstances: (1) when a physician performs a procedure
other than that for which consent was granted; (2) when a
physician performs a procedure without obtaining any consent
from the patient; and (3) when a physician realizes that the
patient does not understand what the procedure entails. This
court similarly has observed that ‘‘[o]ur courts
have long adhered to the principle that the theory of
intentional assault or battery is a basis for recovery
against a physician who performs surgery without
consent.'' Chouinard v. Marjani, 21
Conn.App. 572, 579, 575 A.2d 238 (1990); see also
Canterbury v. Spence, 464 F.2d 772, 783 (D.C. Cir.)
(‘‘[i]t is the settled rule that therapy not
authorized by the patient may amount to . . . a common law
battery''), cert. denied, 409 U.S. 1064, 93 S.Ct.
560, 34 L.Ed.2d 518 (1972); Schmeltz v. Tracy, 119
Conn. 492, 495, 177 A. 520 (1935) (‘‘if the lack
of consent was established, the removal of the moles [by the
physician] was in itself a trespass and had the legal result
of an assault''); Torres v. Carrese, supra,
149 Conn.App. 621 n.29 (‘‘[l]ack of informed
consent is a cause of action separate from a claim of medical
negligence'');Shadrick v. Coker, 963 S.W.2d
726, 732 (Tenn. 1998) (‘‘the doctrine of lack of
informed consent is based upon the tort of battery, not
negligence, since the treatment or procedure was performed
without having first obtained the patient's informed
consent'').
Count
one contains no allegations of negligence on the part of the
defendant. It likewise does not allege any deviation from the
applicable standard of care.[12] The strictures of §
52-190a, therefore, do not apply to that cause of action.
Section 52-190a was enacted ‘‘to prevent the
filing of frivolous medical malpractice actions.''
Morgan v. Hartford Hospital, supra, 301 Conn. 398.
By its plain language, that statute applies to actions
‘‘to recover damages resulting from personal
injury or wrongful death . . . whether in tort or in
contract, in which it is alleged that such injury or death
resulted from the negligence of a health care
provider . . . .'' (Emphasis added.) General Statutes
§ 52-190a (a). Significantly, our Supreme Court has held
that the written opinion letter requirement contained in
§ 52-190a applies only to claims of medical negligence,
which is defined as ‘‘the failure to use that
degree of care for the protection of another that the
ordinarily reasonably careful and prudent [person] would use
under like circumstances. . . . It signifies a want of care
in the performance of an act, by one having no positive
intention to injure the person complaining of it.''
(Internal quotation marks omitted.) Dias v. Grady,
292 Conn. 350, 354, 972 A.2d 715 (2009); see also Wilkins
v. Connecticut Childbirth & Women's Center, 314
Conn. 709, 723 n.4, 104 A.3d 671 (2014) (‘‘§
52-190a applies only to claims of medical
malpractice''); Dias v. Grady, supra, 359
(‘‘the phrase ‘medical negligence,' as
used in § 52-190a (a), means breach of the standard of
care'').
In
Shortell v. Cavanagh, 300 Conn. 383, 385, 15 A.3d
1042 (2011), the Supreme Court expressly held that a cause of
action against a physician predicated on a lack of informed
consent is not subject to the written opinion letter
requirement of § 52-190a. The court explained that
‘‘[u]nlike a medical malpractice claim, a claim
for lack of informed consent is determined by a lay standard
of materiality, rather than an expert medical standard of
care which guides the trier of fact in its
determination.'' Id., 388; see also
Logan v. Greenwich Hospital Assn., supra, 191 Conn.
293 (adopting lay standard for informed consent claims).
Accordingly, ‘‘in an informed consent case, the
plaintiff is not required to present the testimony of a
similar health care provider regarding the standard of care
at trial.'' Shortell v. Cavanagh, supra,
389. The court thus reasoned that ‘‘[i]t would
not be logical that an opinion from a similar health care
provider would be required to commence an action of this
nature, when the testimony of a medical expert would not be
necessary at trial to prove the standard of care and its
breach.'' Id., 388. To do so would
‘‘frustrate the purpose of using the lay standard
for informed consent cases if we were to require a plaintiff
in such a case to comply with § 52-190a and attach to
the complaint a good faith certificate and written opinion of
a similar health care provider.'' Id., 391.
In
count one of her August 25, 2015 amended complaint, the
plaintiff alleges that the defendant committed a battery
through his intentional conduct during the postoperative
examination by failing to obtain her informed consent prior
to digitally separating her agglutinated labia.
‘‘[M]edical standards of care are
inapplicable'' to such claims. Chouinard v.
Marjani, supra, 21 Conn.App. 580; accord Sherwood v.
Danbury Hospital, 278 Conn. 163, 180, 896 A.2d 777
(2006) (‘‘[u]nlike the traditional action of
[medical] negligence, a claim for lack of informed consent
focuses not on the level of skill exercised in the
performance of the procedure itself but on the adequacy of
the explanation given by the physician in obtaining the
patient's consent'' [internal quotation marks
omitted]). As a result, the written opinion letter
requirement of § 52-190a does not apply to informed
consent claims. Shortell v. Cavanagh, supra, 300
Conn. 385. The trial court, therefore, improperly dismissed
count one due to the plaintiff's failure to append to her
complaint a written opinion letter of a similar health care
provider.
B
Negligent
Infliction of Emotional Distress
We next
consider the second count of the plaintiff's August 25,
2015 amended complaint. Titled ‘‘Negligent
Infliction of Emotional Distress against Dr. Rutherford,
'' it reiterates the allegation that, during the
postoperative examination, the defendant
‘‘without any warning or notice [to] the
plaintiff, forcefully inserted his fingers through the
plaintiff's agglutinated labia and into her
vagina.'' The count further alleges that
‘‘[t]he conduct of [the defendant] . . . created
an unreasonable risk of causing, and did in fact cause, the
plaintiff emotional distress. The plaintiff's emotional
distress was a foreseeable result of the conduct of [the
defendant]. The emotional distress . . . was severe enough
that it resulted in illness and may result in further illness
or bodily harm. The conduct [of the defendant] was the cause
of the plaintiff's distress.''
As the
plaintiff noted in her memorandum of law in opposition to the
motion to dismiss, the negligent infliction of emotional
distress claim set forth in count two ‘‘is not
based upon or incident to a claim of medical negligence, but
rather, is based upon her claim of battery against the
defendant in count one.'' Although count two does not
explicitly reference the term ‘‘consent,
'' we are mindful that, in construing a particular
cause of action, ‘‘[t]he complaint must be read
in its entirety in such a way as to give effect to the
pleading with reference to the general theory upon which it
proceeded . . . .'' (Internal quotation marks
omitted.) Perry v. Valerio, 167 Conn.App. 734,
739-40, 143 A.3d 1202 (2016). Read broadly and realistically,
count two plainly alleges that the plaintiff suffered
emotional distress occasioned by the alleged battery
perpetrated by the defendant, as detailed in the preceding
count of the complaint. Both counts one and two claim that
the defendant, without warning or notice to the plaintiff,
digitally separated her agglutinated labia. The factual
issues of whether warnings and notice were provided to the
plaintiff, in turn, both pertain to the issue of informed
consent. See, e.g., Duffy v. Flagg, 279 Conn. 682,
692, 905 A.2d 15 (2006) (physician must disclose, inter alia,
nature of procedure and risks and hazards of procedure to
patient ‘‘in order to obtain valid informed
consent''); Janusauskas v. Fichman, 264
Conn. 796, 810, 826 A.2d 1066 (2003) (informed consent
requires physician to provide patient with information that
reasonable patient would have found material for making
decision whether to embark upon contemplated course of
treatment). We therefore agree with the plaintiff that both
counts one and two advanced claims related to her general
theory that there was a lack of informed consent to the
defendant's conduct during the postoperative examination.
Like
count one, count two contains no allegations that the
defendant deviated from an applicable standard of care. It
thus cannot properly be construed under our law as a claim of
medical negligence. See Dias v. Grady, supra, 292
Conn. 359 (‘‘the phrase ‘medical
negligence,' as used in § 52-190a (a), means breach
of the standard of care''). As the trial judge aptly
observed in an unrelated case, ‘‘[i]n a medical
negligence claim, a treating physician must be found to have
breached a standard of care applicable to the patient. . . .
By contrast, a claim of negligent infliction of emotional
distress need not necessarily involve a breach of the
applicable standard of care by the treating physician. If the
plaintiff's fear or distress was reasonable, in light of
the defendant's conduct, and the defendant should have
realized that his conduct created an unreasonable risk of
causing distress, there is a basis for liability.''
(Citations omitted.) Brown v. Cusick, Superior
Court, judicial district of Fairfield, Docket No.
CV-16-6060283-S (October 2, 2017); see also Brown v.
Njoku, 170 Conn.App. 329, 331, 154 A.3d 587 (affirming
judgment awarding plaintiff $35, 000 in damages following
court trial in action for, inter alia, battery and negligent
infliction of emotional distress against physician who
‘‘inappropriately touched [her] buttocks and
breasts''), cert. denied, 326 Conn. 901, 162 A.3d 724
(2017).
Because
count two lacks any allegation that the defendant departed
from the applicable standard of care, it cannot be deemed a
claim of medical negligence subject to the requirements of
§ 52-190a. Rather, it more properly is construed as one
derivative of the plaintiff's battery claim, for it
concerns her general theory that the defendant lacked
informed consent to digitally separate her agglutinated
labia. For ...