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Wood v. Rutherford

Court of Appeals of Connecticut

January 8, 2019

LAUREN WOOD
v.
THOMAS J. RUTHERFORD ET AL.

          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 ...


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