ERIKA TORRES v. ALEXANDER A. CARRESE ET AL.
AC 34350
Appellate Court of Connecticut
Argued October 18, 2013-officially released April 22, 2014
149 Conn. App. 596
Beach, Bear and Peters, Js.
although not the clearest term it could have employed, was not sufficiently confusing so as to conclude that it impermissibly shifted the burden of proof onto the defendant. It is important to note that, in its canvass of the defendant, the court used the term “create” with respect to both jury trials and court trials. Therefore, the word “create” was used in a neutral manner such that any claimed mistake was inconsequential. Furthermore, and as the state also points out on appeal, both our Supreme Court and this court have utilized the term “create” in describing a defendant‘s trial strategy. See State v. Findlay, 198 Conn. 328, 344, 502 A.2d 921 (“[t]he defense counsel attempted to paint a favorable portrait of the defendant in order to create a reasonable doubt in the minds of the jury“), cert. denied, 476 U.S. 1159, 106 S. Ct. 2279, 90 L. Ed. 2d 721 (1986); State v. Buster, 27 Conn. App. 263, 274, 606 A.2d 9 (1992) (“[i]n his case-in-chief, the defendant sought to create a reasonable doubt as to his guilt by presenting evidence from several witnesses“), aff‘d, 224 Conn. 546, 620 A.2d 110 (1993). Our conclusion is only reinforced given the fact, as noted, that the defendant was represented by counsel at all relevant times. Accordingly, the defendant‘s argument must fail.
The judgment is affirmed.
In this opinion the
Jonathan Perkins, with whom were Wendi Kowarik and, on the brief, Karen L. Dowd and Brendon P. Levesque, for the appellant-cross appellee (plaintiff).
James F. Biondo, with whom, on the brief, was Audrey D. Medd, for the appellee-cross appellant (named defendant).
Opinion
BEACH, J. This appeal arises from a medical malpractice action brought by the plaintiff, Erika Torres, against the defendants, Alexander A. Carrese and Abraham J. Yaari, board certified obstetrician-gynecologists. The plaintiff claims: (1) the trial court erred in dismissing her professional negligence claims against both defendants on the ground that the written opinion letter that she attached to her complaint did not satisfy the requirements of
The following facts, which were undisputed for the purpose of summary judgment, and procedural history are relevant to our disposition of the plaintiff‘s claims. Carrese was the plaintiff‘s obstetrician-gynecologist from the time the plaintiff was sixteen years old. Carrese successfully performed two cesarean sections on the plaintiff for her two prior pregnancies. In 2004, the plaintiff became pregnant with her third child. The plaintiff was scheduled to deliver her third child in September, 2004. During her 2004 pregnancy, Carrese and the plaintiff understood that her third child would be delivered by cesarean section. In the fourth or fifth month of her pregnancy, the plaintiff began to experience pain, bleeding, and cramping. Carrese diagnosed the plaintiff to have the condition of placenta previa.1 Carrese described the condition as “placenta before baby” and explained to the plaintiff that the placenta was blocking the path out of the womb.
On May 28, 2004, the plaintiff presented at Bridgeport Hospital with signs of vaginal bleeding and was seen by Yaari for the first time. While the plaintiff was dressed and sitting in bed, she informed a nurse that she wanted to leave. The plaintiff signed herself out of the hospital against medical advice.
In August, 2004, prior to leaving Connecticut for a vacation, Carrese arranged for Yaari to cover his patients. On August 5, 2004, while Carrese was on vacation, the plaintiff went into labor. The plaintiff presented at St. Vincent‘s Medical Center in Bridgeport, thirty-five weeks pregnant with vaginal bleeding and uterine contractions. The plaintiff was seen by Yaari. Sometime after the plaintiff was admitted, Yaari diagnosed the plaintiff to have the condition of placenta previa. Yaari delivered the plaintiff‘s third child by cesarean section.
As the court related, “After performing the cesarean section, Yaari discovered that the plaintiff in fact had placenta percreta and that the placenta had invaded the wall of the bladder causing substantial bleeding, [and] requiring a hysterectomy. The contemporaneous hospital record signed by Yaari further state[d] that the
In September, 2006, the plaintiff served this medical malpractice action on the defendants, Carrese and Yaari.2 The complaint alleged that each defendant was “a duly licensed physician engaged in the practice of medicine in the State of Connecticut and a specialist in the field of obstetrics and/or gynecology.”3 The complaint alleged that the defendants were negligent in their obstetric care of the plaintiff. Specifically, count one alleged that Carrese, who had been the plaintiff‘s obstetrician since she was sixteen and had provided her with prenatal care for several months prior to August 5, 2004, was negligent in providing prenatal care to the plaintiff because he (1) “failed to maintain adequate medical records pertaining to the plaintiff‘s condition of placenta previa,” (2) failed to detect the plaintiff‘s condition of placenta previa and/or placenta accreta, (3) “failed to convey to other treating doctors the fact that the plaintiff suffered from [placenta previa and/or placenta accreta],” (4) “failed to undertake necessary diagnostic testing such as ultrasounds,” (5) “failed to advise the plaintiff of the risk that her bladder would be injured during the cesarean
Count two alleged that Yaari, the obstetrician who performed the plaintiff‘s cesarean section, was negligent in his obstetric care of the plaintiff because he (1) “failed to take the proper precautions during the plaintiff‘s cesarean section and/or related procedures as to avoid injuring her bladder (including arranging for the delivery to occur in the appropriate facility and arranging for a urologist to deal with the potential placenta accreta condition),” (2) “failed to undertake the appropriate investigations to determine whether the plaintiff suffered from placenta previa and/or placenta accreta,” (3) “caused injury to the plaintiff‘s bladder,” and (4) “undertook to perform medical services which were within the specialty of a urologist.” Count two also alleged that Yaari “failed to advise the plaintiff of the risk that her bladder would be injured during the cesarean section and/or related procedures. . . .” The plaintiff claimed that as a result of Yaari‘s negligent conduct, she was “forced to undergo a hysterectomy and can no longer bear children,” her “bladder is damaged and she is incontinent,” she has “undergone anguish, pain and suffering” and incurred medical expenses, she has been unable to obtain gainful employment and to participate in many of life‘s activities, and she will “in the future undergo further debilitating and painful treatments and undergo further anguish, pain and suffering and medical expenses.”
With her complaint, the plaintiff filed a good faith certificate signed by her attorney, who represented therein that he had made a reasonable inquiry into the circumstances of the plaintiff‘s claims and that, on the basis of that inquiry, he believed in good faith that the defendants had been negligent in their treatment of the plaintiff. Additionally, pursuant to
On November 13, 2006, Yaari filed a motion to dismiss the plaintiff‘s complaint on the ground that the written opinion letter submitted by the plaintiff was not written by a “similar health care provider,” as defined by
“Oral argument was heard a second time on February 26, 2007. . . . The defendants move[d] to dismiss the [plaintiff‘s] first amended complaint on the ground that the first written opinion [letter] submitted by the plaintiff was not obtained from a ‘similar health care provider’ as mandated by § 52-190a. They argue[d] that the plain language of § 52-190a (c) indicate[d] that [failure to attach a sufficient written opinion letter was] ground for dismissal of the action. They also contend[ed] that the failure to attach an adequate medical opinion [was] not a curable defect, and, therefore, the plaintiff‘s amended complaint, attaching the opinion of an [obstetrician-gynecologist was] not properly before the court. Furthermore, even if the amendment [was] effective, the defendants argue[d] that the second opinion provided [was] sparse and [was] insufficient to meet the statutory requirement that the opinion ‘include a detailed basis for the formation of such opinion.’ ” (Citations omitted; footnotes omitted.) On April 4, 2007, the court, Jones, J., denied the defendants’ motions to dismiss on the ground that an insufficient opinion letter, as opposed to the absence of an opinion letter, was not a sufficient ground for dismissal.7
On January 19, 2011, the case was called for trial. On January 31, 2011, and February 10, 2011, after our Supreme Court released its opinion in Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 21, 12 A.3d 865 (2011) (holding in cases against specialists, author of written opinion letter pursuant to
On July 28, 2011, Carrese moved for summary judgment as to the plaintiff‘s claims of lack of informed consent on the ground that the plaintiff did not plead lack of informed consent, and, alternatively, to the extent that a lack of informed consent claim was pleaded, no triable issue existed. On August 1, 2011, Yaari also moved for summary judgment. The plaintiff filed separate objections to the defendants’ motions on September 23, 2011. On December 30, 2011, the court granted the defendants’ motions for summary judgment as to the plaintiff‘s alleged claims of lack of informed consent, and, on January 3, 2012, issued a supporting memorandum of decision.10 This appeal and the defendants’ cross appeal followed. See footnote 22 of this opinion. Additional facts will be set forth as necessary.
I
On appeal, the plaintiff first claims that the court improperly dismissed her professional negligence claims because the written opinion letter, authored by a urologist, not an obstetrician-gynecologist, was sufficient to meet the requirements of
A
The plaintiff first claims that the court improperly dismissed her professional negligence claims because the opinion letter, authored by a urologist rather than an obstetrician-gynecologist, was sufficient to meet the requirements of
Our review of a trial court‘s ruling on a motion to dismiss pursuant to
We begin our analysis by setting forth the relevant statutory provisions. Section 52-190a (a) provides that before filing a personal injury action against a health care provider, the attorney or party filing the action must make “a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the
which defines the term “similar health care provider.” Wilkins v. Connecticut Childbirth & Women‘s Center, 135 Conn. App. 679, 686, 42 A.3d 521, cert. granted on other grounds, 305 Conn. 921, 47 A.3d 881 (2012). For health care providers who are board certified or who hold themselves out as specialists, such as the obstetrician-gynecologists who treated the plaintiff in this case,
The plaintiff argues that the opinion letter, authored by a urologist, is sufficient to meet the requirements of
This argument fails for two reasons. First, in the written opinion letter dated September 5, 2006, Motola, the board certified urologist, never suggested that the defendants were diagnosing or treating the plaintiff for a condition not within their specialty. Second, the plaintiff‘s bladder and ureter were damaged when Yaari was performing a hysterectomy, an obstetric-gynecological procedure, because of the plaintiff‘s condition of placenta percreta,
In this regard, the plaintiff‘s claim is governed by Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 1. In Bennett, our Supreme Court concluded that “in cases of specialists, the author of an opinion letter pursuant to
B
The plaintiff also claims that, even if the original opinion letter was insufficient,
The following additional facts are relevant. At the hearing on the defendants’ 2011 motions to dismiss,16 the plaintiff argued that the defendants’ motions to dismiss were, in essence, motions to reargue their 2006 motions to dismiss17 that did not comply with the mandatory time requirements set forth in Practice Book § 11-12. The plaintiff further argued that no statute or rule of practice authorized filing a motion to dismiss, not claiming lack of subject matter jurisdiction, five and one-half years after filing an appearance.18 In its memorandum of decision, the court agreed with the plaintiff that the 2011 motions to dismiss were really motions to reargue the 2006 motions to dismiss.19 The court also agreed that the defendants’ motions were untimely because § 11-12 mandates that motions to reargue be filed within twenty days of the decision. The court concluded, however, that it properly could entertain the defendants’ 2011 motions to dismiss because the defendants’ failure to meet the timeliness requirements did not deprive the court of jurisdiction, and it otherwise was within the court‘s discretion to entertain the motions.
1
We first consider whether the trial court properly concluded that the defendants’ 2011 motions to dismiss were functionally motions to reargue their 2006 motions to dismiss. “[T]he interpretation of pleadings is always a question of law for the court and . . . our interpretation of the pleadings therefore is plenary.” (Internal quotation marks omitted.) Dimmock v. Lawrence & Memorial Hospital, Inc., 286 Conn. 789, 799-800, 945 A.2d 955 (2008); see also Sherman v. Ronco, 294 Conn. 548, 554 n.10, 985 A.2d 1042 (2010). “[P]leadings must be construed broadly and realistically, rather than narrowly and technically.” (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education Funding, Inc. v. Rell, 295 Conn. 240, 253, 990 A.2d 206 (2010). Courts
In this case, the defendants’ original 2006 motions to dismiss sought to dismiss the plaintiff‘s complaint on the ground that the plaintiff‘s failure to attach a written opinion letter from a similar health care provider, as mandated by
2
The plaintiff contends that the twenty day filing deadline in Practice Book § 11-12 (a) is a mandatory limitation, and therefore, because the defendants’ 2011 motions were untimely, Judge Levin improperly considered the motions.21 The defendants argue that Judge Levin properly considered their 2011 motions to dismiss.22 We agree with the defendants.
We review the plaintiff‘s claim under the abuse of discretion standard; see, e.g., Chartouni v. DeJesus, 107 Conn. App. 127, 127, 129, 944 A.2d 393 (we review denial of motion to reargue for abuse of discretion), cert. denied, 288 Conn. 902, 952 A.2d 809 (2008); and conclude that the court did not abuse its discretion in considering the defendants’ untimely 2011 functional motions to reargue.
Practice Book § 11-12 (a) provides: “A party who wishes to reargue a
Our determination that the filing deadline in Practice Book § 11-12 is mandatory, however, does not end the inquiry. “Rules of practice are not statutory or constitutional mandates, but they reflect the courts’ authority to prescribe rules to regulate their proceedings and
facilitate the administration of justice . . . . Even if a . . . Practice Book rule must be strictly construed and is mandatory, compliance with its requirements does not necessarily become a prerequisite to a court‘s subject matter jurisdiction.” (Citations omitted; internal quotation marks omitted.) State v. Falcon, 84 Conn. App. 429, 433, 853 A.2d 607 (2004), overruled in part on other grounds by State v. Das, 291 Conn. 356, 368, 968 A.2d 367 (2009); see also Lo Sacco v. Young, supra, 210 Conn. 508 (failure to comply with mandatory time requirement in our rules of practice does not affect subject matter jurisdiction);
After a thorough review of the record, we conclude that the court did not abuse its discretion in considering the defendants’ untimely 2011 motions to dismiss. First, as noted previously, noncompliance with mandatory filing deadlines in our rules of practice does not deprive the court of subject matter jurisdiction to consider the pleading. Second, the defendants, in filing their 2011 motions to dismiss, sought reconsideration because of a newly articulated controlling principle of law set forth by our Supreme Court in Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 1. See Opoku v. Grant, 63 Conn. App. 686, 692-93, 778 A.2d 981 (2001) (“[T]he purpose of a reargument
For the aforementioned reasons we conclude that the court properly considered and granted the defendants’ 2011 motions to dismiss.
II
The plaintiff also claims that the court erred in rendering summary judgment as to her claims of lack of informed consent against Carrese and Yaari. Specifically, the plaintiff argues that the court (1) erred in concluding that Carrese had no duty to obtain the plaintiff‘s informed consent, and (2) erred in concluding that Yaari had no obligation to disclose to the plaintiff that the cesarean hysterectomy24 could perhaps be more safely performed at another health care facility. We address these claims separately.
”
“[T]he lack of informed consent claim is a different cause of action from [a] claim of [medical] negligence. . . .”26 Goral v. Kenney, 26 Conn. App. 231, 237 n.7, 600 A.2d 1031 (1991). “In order to prevail on a cause of action for lack of informed consent, a plaintiff must prove both [1] that there was a failure to disclose a known material risk of a proposed procedure and [2] that such failure was a proximate cause of his injury.”27 (Emphasis added.) Shortell v. Cavanagh, 300 Conn. 383, 388, 15 A.3d 1042 (2011). In order to obtain valid informed consent, the physician‘s disclosure to the patient must include four factors: (1) the nature of the procedure; (2) the risks and hazards of the procedure; (3) the alternatives to the procedure; and (4) the anticipated benefits of the procedure. Logan v. Greenwich Hospital Assn., 191 Conn. 282, 292, 465 A.2d 294 (1983).
Our Supreme Court has adopted an objective lay standard for determining the materiality of risk. See, e.g., Shortell v. Cavanagh, supra, 300 Conn. 388 (“[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“); see also Logan v. Greenwich Hospital Assn., supra, 191 Conn. 292 (adopting lay standard for lack of informed consent claims). “[T]he lay standard of informed consent requires a physician to provide the patient with that information which a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy.” (Emphasis in original; internal quotation marks omitted.) Duffy v. Flagg, 279 Conn. 682, 692, 905 A.2d 15 (2006). “Materiality may be said to be the significance a reasonable person, in what the physician knows or should know is his patient‘s position, would attach to the disclosed risk or risks in deciding whether to submit or not to submit to surgery or treatment.” (Internal quotation marks omitted.) Logan v. Greenwich Hospital Assn., supra, 291. Our Supreme Court has also
A
The plaintiff claims that the court erred in concluding that Carrese had no duty to obtain the plaintiff‘s informed consent. The plaintiff argues, essentially, that, because Carrese was providing her prenatal care and anticipated that he would be the physician to perform the eventual cesarean section, he had an obligation to provide the plaintiff, and any subsequent substitute treating physician, with information about the plaintiff‘s condition and the nature of her pregnancy “such that she could make knowing consent to treatment.”28 We disagree.
The following additional facts and procedural history are relevant. In count one of her April 21, 2011 revised complaint, the plaintiff alleged that Carrese (1) “failed to advise the plaintiff in timely fashion of her options with respect to complete bed rest, early delivery or other means of dealing with potentially life threatening complication of placenta percreta in a timely and appropriate fashion“; (2) “failed to advise the plaintiff of the possibility of complications during delivery due to her condition(s) of placenta previa, placenta accreta and/or placenta percreta“; and (3) “failed to advise the plaintiff of the risk that her bladder would be injured during the cesarean [hysterectomy] . . . .”
On July 28, 2011, Carrese moved for summary judgment on the grounds that the plaintiff did not allege lack of informed consent29 or alternatively, to the extent that a lack of informed consent claim was pleaded, no genuine issue of fact existed. In support of his motion, Carrese submitted his affidavit. In its January 3, 2012 memorandum of decision, the court granted the motion and explained its decision: “The plaintiff does not dispute that Carrese neither performed nor participated in the plaintiff‘s cesarean hysterectomy.
The plaintiff argues that because Carrese provided her prenatal care and anticipated that he would be the physician to perform the eventual cesarean section, he had an obligation to provide the plaintiff with information about the plaintiff‘s condition and the nature of her pregnancy “such that she could make knowing consent to treatment.” The plaintiff also argues that Carrese had an obligation to provide any subsequent substitute treating physician with information about her condition such that she could give informed consent to treatment. We disagree.
Our case law regarding the issue of a physician‘s obligation to obtain a patient‘s informed consent focuses on the decision “to embark upon a contemplated course of therapy,” such as a “procedure,” “operation,” or “surgery.” (Internal quotation marks omitted.) Logan v. Greenwich Hospital Assn., supra, 191 Conn. 290-94 (examining our informed consent case law). Carrese provided the plaintiff prenatal care. It is undisputed that Carrese did not perform the plaintiff‘s cesarean section and was on vacation with his family at the time of the plaintiff‘s surgery. Although he may have anticipated performing a cesarean section some-time in the future, the operation was not imminent and there was no immediate reason for specific informed consent. Unlike performing a cesarean section, providing prenatal care is not a “procedure,” “operation,” or “surgery.”
Under the current state of the law of informed consent, Carrese did not have an obligation to provide the plaintiff, or any subsequent substitute treating physician, with information regarding the increased risks the plaintiff might face when undergoing a cesarean section due to her condition of placenta previa.30
The plaintiff makes much of the fact that Carrese intended at some point to perform the cesarean section. Under our law, however, a physician‘s obligation to obtain informed consent turns on the performance of a procedure and not the intent to perform a procedure. Consequently, we find that the plaintiff‘s arguments are unavailing. See, e.g., Sherwood v. Danbury Hospital, 278 Conn. 163, 171 n.8, 192, 194, 896 A.2d 777 (2006) (obligation to inform patient of risks of blood transfusion is owed by physician performing surgery and him “alone” [emphasis omitted]).
B
The plaintiff‘s final claim is that the court erred in concluding that Yaari had no obligation to disclose to the plaintiff, in order to ensure that consent was informed, that the procedure could be better performed at another health care facility. The plaintiff argues that Yaari had an obligation to advise the plaintiff of the option of having a cesarean hysterectomy at another health care facility, more specifically, a “tertiary facility” with other specialists present, because Yaari reasonably anticipated that the procedure would require expertise beyond his specialty.31
The following additional facts and procedural history, as recited by the trial court, are relevant. “Sometime after the plaintiff was admitted to the hospital on August 5, [2004], Yaari suspected and subsequently confirmed that she had placenta previa. . . . Yaari also suspected that the plaintiff had placenta accreta. Yaari tried to stop the contractions and, according to the contemporaneous hospital record, he ‘explained to the [plaintiff] that there [was] a good chance that we might need to remove the uterus and there might be damage to the bladder during this kind of operation because of the location of the previous uterine incisions. The [plaintiff] consented. This was also explained to her husband.’
“In her affidavit in opposition to the defendants’ motions for summary judgment, however, the plaintiff state[d] that ‘Yaari . . . did not advise me of the risks associated with undertaking a cesarean section in the presence of placenta accreta or placenta percreta nor did he tell me anything about my alternatives at that time (or in May 2004), including that of having my cesarean delivery take place at an appropriate tertiary facility and of having it handled by a team of specialists experienced in dealing with very difficult, potentially life-threatening lower abdominal surgery. . . . Yaari did not tell me that he suspected that I had placenta accreta or placenta percreta nor did he mention anything about my bladder or my ureters potentially being damaged should he go ahead with the surgery.’ . . .
“The plaintiff signed a consent form giving Yaari permission to perform a ‘repeat C-Section, Possible Hysterectomy, Possible [illegible].’ Specifically, the form state[d]: ‘My condition, the nature of the above procedure, risks and hazards of the procedure, the benefits of the procedure, any problems related to recuperation, the likelihood of success of the procedure, all viable alternatives to the procedure and the same type of information regarding such alternatives have been explained to my satisfaction by . . . Yaari.’ Yaari also signed the consent form, affirming that he had provided the information to the plaintiff.
“After performing the cesarean section, Yaari discovered that the plaintiff in fact had placenta percreta and that the placenta had invaded the wall of the bladder causing substantial bleeding, requiring a hysterectomy. The contemporaneous hospital record signed by Yaari further states that the plaintiff ‘was taken to the operating room and a cesarean section was performed. A live baby girl was delivered. . . . Because of the severe bleeding that we could not prevent . . . we had to pursue a cesarean hysterectomy. Because of the location of the placenta at the lower level of the uterus, it penetrated the posterior wall of the bladder and thus was removed with the uterus and we called for intraoperative urology evaluation. The urology team arrived, headed by Dr. [Jeffrey] Small, and the patient had later on a reconstruction of the bladder and reimplantation of the one of the ureters.‘”
On August 1, 2011, Yaari filed a motion for summary judgment, arguing that he was entitled to judgment as a matter of law because there was no genuine issue of
We note initially that the plaintiff‘s “informed consent” claim has little to do with any known material risk of a cesarean hysterectomy and thus falls outside the usual rubric of informed consent. The plaintiff conceded, and our review of the record confirms, that there is no genuine issue of material fact that the plaintiff would have undergone a cesarean hysterectomy in any event—the plaintiff‘s counsel so indicated.33 Further, the record
None of our courts have addressed a claim closely analogous to the plaintiff‘s—that is, whether a physician has an obligation to inform his or her patient that a procedure may be better performed at another health care facility.35 We hold that on the facts presented in this case, Yaari had no such obligation. Our holding is informed primarily by binding precedent such as Shortell v. Cavanagh, supra, 300 Conn. 383, and Logan v. Greenwich Hospital Assn., supra, 191 Conn. 282, which suggest that the gravamen of informed consent is a discussion of the material risks of the procedure itself. The procedure itself does not necessarily extend to the place where the procedure is to be performed; in the circumstances of this case, the alleged fact that the facility was not a tertiary facility was not, as a matter of law, a material risk.36
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
“[The Plaintiff‘s Counsel]: Thank you, Your Honor. Your Honor, as to the—just addressing quickly the informed consent form that the defendant, Dr. Yaari has provided a copy of . . . all it says is repeat [cesarean] section and possible hysterectomy. It says something else, possible greater, I can‘t read the words, but it says nothing, Your Honor, and the testimony is . . . at no time did Dr. Yaari tell [the plaintiff] that because she‘d had multiple prior [cesarean] sections and had a placenta previa, she was at a substantially increased risk of suffering from placenta percreta and/or placenta accreta. Placenta percreta is a more advanced or complicated version. And in fact, she did suffer from placenta percreta. And he never had a percreta or accreta discussion with her ever, Your Honor. . . .
“The Court: What would have changed if she had? . . .
“[The Plaintiff‘s Counsel]: What would have changed, Your Honor, firstly, in May of 2004, she was at Bridgeport Hospital. Dr. Yaari was again covering for Dr. Carrese and was the responsible physician. . . . And the hospital [record] says . . . suspected placenta previa, will tell Dr. Yaari when he calls in an hour, something to that effect.
“And so, that he knew so months before the delivery, it is our position, and it certainly is an issue of fact on this, at least that she had a placenta previa condition, and he knew about her prior [cesarean] sections. Under those circumstances . . . [w]hat . . . we‘re saying is that, well, certainly she should have been given the risks and the alternatives to that. . . .
“The Court: This is alternatives to what?
“[The Plaintiff‘s Counsel]: . . . [T]o having Dr. Carrese and/or Dr. Yaari perform this cesarean section, cesarean section hysterectomy. A lot of them are saying, and most—certainly all the plaintiff‘s experts and a number of the defendants’ experts, that it would have been preferable to have an experienced general pelvic surgeon. It‘s [a] very unusual occurrence, this placenta accreta, in the life of an . . . obstetrician-gynecologist. And it‘s—it‘s the plaintiff‘s position that she would have liked to have known that she was in an elevated risk of suffering lower urinary tract injury and that she could have gone and she would like to have known the alternative of going to, and having present, an experienced, let‘s say, gynecological oncologist to this procedure on her.
“The Court: Gynecological oncologist, did you say?
“[The Plaintiff‘s Counsel]: Yes. Yes, Your Honor, in other words, a doctor who specializes in complicated lower urinary tract surgeries, for example. So, rather—and she could have, if she‘d known, if this had been brought to her attention . . . you know, she could have had an alternative of having somebody who specializes in this kind of complicated condition deal with it. In fact, she was told nothing about it. She only found [out] about placenta percreta, placenta accreta, after the delivery. They told her nothing about it.
“And, in fact, Dr. [Frank] Boehm, Dr. Yaari‘s expert, says that Dr. Yaari knew ahead of time or suspected strongly that she had an accreta. And . . . Dr. [Jeffrey] Richardson, one of the plaintiff‘s experts, testified that, in fact, he suspected that she—oh, testified that Dr. Yaari did anticipate on August 5, before the delivery was attempted, there was a placenta accreta and/or percreta present, and that urologic injury could occur during the procedure.
“And that because of knowing about it ahead of time, he, quote, he had the luxury of time. In other words, we don‘t accept that there is an emergency exception, Your Honor. I believe that all that the defendant has cited to on this issue is a state regulation, it‘s not a statute, that simply says that hospitals should make sure that doctors get informed consent. That‘s essentially what that regulation says. It doesn‘t say anything about doctors don‘t have to get informed consent if there‘s an emergency.
“But beyond that, it‘s our position, Your Honor, that there was not an emergency, that . . . there was sufficient time for [the plaintiff] to give informed consent, to have a discussion about possible bladder injury, about possible urethral injury, about an option of having a urologist or a gynecological oncologist deal with the procedure. She wasn‘t given any of these options. She was not told the risks. She was not told the alternatives. And, Your Honor, it‘s the plaintiff‘s position that that‘s exactly what informed consent is about. She should have been told of these risks and alternatives, and she was not . . .
“The Court: What other alternatives were there, again, other than you mentioned an experienced pelvic surgeon or gynecological oncologist?
“[The Plaintiff‘s Counsel]: She would have, Your Honor, have had to undergo an operation where her uterus was removed. She would have had to undergo a hysterectomy. But, Your Honor, it is our view that had she been given this option of going with someone who knew what he was doing and did this as a specialist, she would not be permanently unable to use the bathroom today. She wasn‘t given that option because she wasn‘t told about it.” (Emphasis added.)
“Q. And in reviewing all the records, have you developed any opinions as to whether or not . . . Yaari conformed to the standard of care in his care and treatment of [the plaintiff] in this particular situation?
“A. I believe that . . . Yaari did conform to the standard of care in this very difficult situation. . . . I don‘t think he had any choice but to proceed with the operation, perform the cesarean hysterectomy, and then manage the bleeding and urologic issues after the hysterectomy.
“Yaari submitted a portion of an uncertified deposition transcript of Dr. Jeffrey Richardson, an obstetrician-gynecologist, who testified that the hysterectomy saved the plaintiff‘s life. The pertinent deposition testimony is as follows:
“Q. Okay. Did the hysterectomy that was done in this case save [the plaintiff‘s] [life]?
“A. I would say the hysterectomy saved her [life].”
“Additionally, the plaintiff submitted a portion of a certified deposition transcript of Dr. Frank Boehm, an obstetrician-gynecologist, who testified that the circumstances of the plaintiff‘s case constituted a life-threatening situation. The pertinent deposition testimony is as follows:
“A. [T]his is a life-threatening situation, placenta percreta with a previa. The amount of blood loss was obviously enormous; the [plaintiff] received nine units of blood.” (Emphasis omitted.)