187 Conn. App. 61
Conn. App. Ct.2019Background
- Plaintiff Lauren Wood underwent CO2 laser ablation of the vulva performed by Dr. Rutherford on April 25, 2014, and signed a standardized consent form for that procedure.
- On May 14, 2014, at a postoperative exam (to which Wood consented), Dr. Rutherford discovered labial agglutination and digitally separated the fused labia; Wood alleges he did so without warning or obtaining her informed consent and caused severe pain and injury.
- Plaintiff sued alleging battery and negligent infliction of emotional distress; defendant moved to dismiss arguing the claims were medical malpractice requiring § 52‑190a pre‑suit expert opinion.
- Trial court dismissed those counts for failure to comply with § 52‑190a, but allowed plaintiff to replead a separate lack‑of‑informed‑consent claim; plaintiff filed a revised complaint.
- On summary judgment the trial court held the digital separation was part of the consented postoperative exam (not a separate course of treatment) and granted judgment for the defendant.
- The appellate court reversed: (1) § 52‑190a does not apply to the pleaded battery and negligent‑infliction counts grounded in lack of informed consent; and (2) material factual disputes existed whether the discovery of agglutination constituted a substantial change triggering a new informed consent obligation and whether the prior consent covered the post‑op intervention.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether § 52‑190a written‑opinion requirement applies to the battery claim (lack of informed consent) | Wood: battery premised on nonconsensual touching/informed‑consent theory — not medical negligence, so § 52‑190a does not apply | Rutherford: substance of claims is medical malpractice, so § 52‑190a obligations were required | Ct: § 52‑190a applies only to medical negligence (breach of standard of care); informed‑consent battery claim and derivative negligent‑infliction claim are lay‑standard claims — § 52‑190a does not apply; dismissal was improper |
| Whether negligent infliction of emotional distress count was a medical‑negligence claim subject to § 52‑190a | Wood: count derives from the alleged battery/informed‑consent failure, not malpractice | Rutherford: same basis as his § 52‑190a argument for count one | Ct: count two lacked allegations of breach of medical standard and was derivative of the battery/informed‑consent theory; § 52‑190a did not apply |
| Whether discovery of a complication during a course of treatment requires a new informed consent before the physician may treat it | Wood: a substantial and material change (agglutination) occurred at the post‑op exam, so Rutherford had a duty to disclose risks, alternatives, benefits and obtain consent before treating | Rutherford: postoperative exam was part of the consented course; separating labia to view the site was not a separate procedure requiring new consent | Ct: when a substantial/material alteration of risks, benefits, or alternatives occurs during treatment, generally the physician must obtain further informed consent; genuine factual dispute existed whether the change was substantial here, so summary judgment inappropriate |
| Whether the April 25, 2014 consent form authorized Rutherford to treat unforeseen postoperative complications at the May 14 exam without further consent | Wood: the standardized consent authorized only complications arising "during my procedure" (the April 25 ablation), and the form’s complications blanks were unused — no clear authorization for later post‑op intervention | Rutherford: the consent form authorized postoperative exam and broadly allowed "whatever may be necessary if there is a complication or unforeseen condition" | Ct: factual dispute exists about the scope of the prior authorization; viewed most favorably to Wood, the consent authorized remedies for complications during the procedure but did not clearly authorize later post‑op interventions; summary judgment was improper |
Key Cases Cited
- Logan v. Greenwich Hosp. Ass'n, 191 Conn. 282 (Conn. 1983) (adopts lay standard for informed consent and lists required disclosures)
- Canterbury v. Spence, 464 F.2d 772 (D.C. Cir. 1972) (formative federal articulation of informed‑consent duty and materiality standard)
- Shortell v. Cavanagh, 300 Conn. 383 (Conn. 2011) (holds § 52‑190a written‑opinion requirement inapplicable to lack‑of‑informed‑consent claims)
- Dias v. Grady, 292 Conn. 350 (Conn. 2009) (defines § 52‑190a’s scope as limited to claims alleging breach of medical standard of care)
- Sherwood v. Danbury Hosp., 278 Conn. 163 (Conn. 2006) (informed consent may apply to non‑surgical therapeutic interventions such as blood transfusion)
- Morgan v. Hartford Hosp., 301 Conn. 388 (Conn. 2011) (discusses § 52‑190a dismissal consequences and purpose)
- Cruzan v. Dir., Mo. Dept. of Health, 497 U.S. 261 (U.S. 1990) (recognizes bodily‑integrity and autonomy foundations for informed consent)