Wood v. RutherfordWood v. Rutherford
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Syllabus
The plaintiff patient sought to recover damages from the defendant R, a licensed gynecological oncologist, alleging that R‘s conduct during a certain postoperative examination constituted battery and the negligent infliction of emotional distress. The plaintiff alleged that she underwent a surgical procedure known as a laser ablation of the vulva that was performed by R, and that he, having subsequently discovered during the postoperative examination that the plaintiff‘s labia were agglutinated, digitally separated her agglutinated labia without providing her with any warning or notice. R filed a motion to dismiss, claiming that the plaintiff‘s claims against him were for medical malpractice and, as such, the plaintiff was required by statute (
- The trial court improperly granted R‘s motion to dismiss the plaintiff‘s battery and negligent infliction of emotional distress counts due to the plaintiff‘s noncompliance with
§ 52-190a : the written opinion letter requirement of§ 52-190a did not apply to the plaintiff‘s battery claim, as our Supreme Court has held that the written opinion letter requirement contained in§ 52-190a applies only to claims of medical negligence, and the plaintiff‘s battery claim, which contained no allegations of negligence on the part of R and did not allege any deviation from the applicable standard of care, was predicated on the alleged lack of informed consent and was, thus, not subject to that requirement; moreover, the plaintiff‘s negligent infliction of emotional distress count was not a claim of medical negligence subject to the requirements of§ 52-190a , as that count lacked any allegation that R departed from the applicable standard of care, and it was, instead, derivative of the plaintiff‘s battery claim, as it concerned her general theory that R lacked informed consent to digitally separate her agglutinated labia. - The trial court improperly rendered summary judgment in favor of R on the plaintiff‘s revised complaint: when a substantial and material alteration of the risks, anticipated benefits, or alternatives previously disclosed to the patient occurs during a course of medical treatment, the doctrine of informed consent generally requires an additional informed consent discussion between the physician and the patient, and, in the present case, a genuine issue of material fact existed as to whether R‘s discovery of the plaintiff‘s medical complication during the postopera-tive examination constituted a substantial and material change in circumstances, such that R was obligated to disclose the risks, anticipated benefits, and viable alternatives to the plaintiff before embarking on a course of treatment, as a finder of fact could have concluded on the basis of certain statements in the affidavits of the plaintiff and her mother, which alleged that R, after separating the plaintiff‘s agglutinated labia, informed them that he performed that procedure so that the plaintiff would not have to go to the operating room for surgery, as well as R‘s admission that severely agglutinated labia may require a surgical procedure and evidence from both parties of the significant pain experienced by the plaintiff, that R discovered the medical complication during his initial examination of the plaintiff and then, without her informed consent, made a unilateral decision to pursue a particular course of treatment, namely, digital separation, when another viable alternative existed; moreover, although a physician‘s failure to obtain informed consent may be excused in certain circumstances, such as when the patient has authorized the physician to remedy complications that arise during a course of medical treatment, a genuine issue of material fact existed as to whether the plaintiff had authorized R to remedy unforeseen complications that arose, not during her laser ablation procedure but, rather, during the postoperative examination that occurred weeks later, as the plaintiff‘s signed consent form, when read in the light most favorable to the plaintiff as the nonmoving party, authorized R to take whatever action may be necessary only with respect to unforeseen complications that arose during the laser ablation procedure and did not discuss postoperative care.
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
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 ablation2 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 con-duct 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 [
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
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
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
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
“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
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
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
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
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
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
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
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
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
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
II
Normally, our determination that a motion to dismiss was improperly granted would conclude our inquiry. In the present case, however, the court granted the motion to dismiss without prejudice to the plaintiff‘s pursuit of an action against the defendant for lack of informed consent. After filing a notice of intent to appeal from that dismissal; see footnote 7 of this opinion; the plaintiff then obtained permission from the court to file an amended pleading, on which the court ultimately rendered summary judgment in favor of the defendant. The plaintiff now challenges the propriety of that determination.
On appeal, the plaintiff claims that the court improperly concluded, as a matter of law, that she could not prevail in an informed consent action because the defendant‘s conduct in separating her agglutinated labia was not a separate procedure or course of treatment giving rise to a duty to obtain informed consent. She contends that a substantial change in circumstances occurred when the defendant discovered a complication during the postoperative examination that required medical intervention, which in turn obligated the defendant to obtain her informed consent before proceeding further. The parties agree that this issue is one of first impression in Connecticut. Accordingly, we first review the doctrine of informed consent to determine the proper legal standard by which to measure the plaintiff‘s claim. We then apply that standard to the facts before us, ever mindful of the procedural posture of this case.
A
The doctrine of informed consent traces its origins to the common-law notion that an adult “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.) Schmeltz v. Tracy, supra, 119 Conn. 495–96, quoting Schloendorff v. New York Hospital, 211 N.Y. 125, 129–30, 105 N.E. 92 (1914) (Cardozo, J.), overruled on other grounds by Bing v. Thunig, 2 N.Y.2d 656, 143 N.E.2d 3, 163 N.Y.S.2d 3 (1957); see also Union Pacific Railway Co. v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 35 L. Ed. 734 (1891) (“[n]o right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law“); Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695, 717 (D.C. Cir. 2007) (en banc) (courts have long “recognized with universal acquiescence that the free citizen‘s first and greatest right, which underlies all others, is the right to the inviolability of his person” [internal quotation marks omitted]), cert. denied, 552 U.S. 1159, 128 S. Ct. 1069, 169 L. Ed. 2d 839 (2008). As the United States Supreme Court has recognized, the “notion of bodily integrity [is] embodied in the requirement that informed consent is generally required for medical treatment.” Cruzan v. Director, Missouri Dept. of Health, 497 U.S. 261, 269, 110 S. Ct. 2841, 111 L. Ed. 2d 224 (1990).
The doctrine of informed consent attempts to balance the autonomy of the patient with the professional obligations of the physician.13 In the seminal decision of Canterbury v. Spence, supra, 464 F.2d 780, the United States Court of Appeals for the District of Columbia Circuit explained that “[t]rue consent to what happens to one‘s self is the informed exercise of a choice, and that entails an opportunity to evaluate knowledgeably the options available and the risks attendant upon each. The average patient has little or no understanding of the medical arts, and ordinarily has only his physician to whom he can look for enlightenment with which to reach an intelligent decision. From these almost axiomatic considerations springs the need, and in turn the requirement, of a reasonable divulgence by physician to patient to make such a decision possible.” (Footnotes omitted.) The court continued: “A physician is under a duty to treat his patient skillfully but proficiency in diagnosis and therapy is not the full measure of his responsibility. . . . [T]he physician is under an obligation to communicate specific information to the patient when the exigencies of reasonable care call for it. . . . The context in which the duty of risk-disclosure arises is invariably the occasion for decision as to whether a particular treatment procedure is to be undertaken. To the physician, whose training enables a self-satisfying evaluation, the answer may seem clear, but it is the prerogative of the patient, not the physician, to determine for himself the direction in which his interests seem to lie. To enable the patient to chart his course understandably, some familiarity with the therapeutic alternatives and their hazards becomes essential.” (Footnotes omitted.) Id., 781. For that reason, the court held that “the physician‘s overall obligation to the patient [includes the] duty of reasonable disclosure of the choices with respect to proposed therapy and the dangers inherently and potentially involved.” Id., 782. Accordingly, a physician “must seek and secure his patient‘s consent before commencing an operation or other course of treatment.”14 Id.
The doctrine of informed consent “is embedded firmly in American jurisprudence, now forming a recognizable basis for physician liability in the [fifty] [s]tates and the District of Columbia.” J. Merz, “On a Decision Making Paradigm of Medical Informed Consent,” 14 J. Legal Med. 231, 231 (1993). In Connecticut, “[i]nformed consent requires a physician to provide the patient with the information which a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy.” (Internal quotation marks omitted.) Janusauskas v. Fichman, supra, 264 Conn. 810; accord Canterbury v. Spence, supra, 464 F.2d 787 (“[a] risk is . . . material when a reasonable person . . . would be likely to attach significance to the risk . . . in deciding whether or not to forego the proposed therapy” [internal quotation marks omitted]). As our Supreme Court held in Logan v. Greenwich Hospital Assn., supra, 191 Conn. 292, “the physician‘s disclosure should include: (1) the nature of the procedure, (2) the risks and hazards of the procedure, (3) the alternatives
At the same time, our Supreme Court has emphasized that the doctrine of informed consent “is a limited one” that requires “something less than a full disclosure of all information which may have some bearing, however remote, upon the patient‘s decision.”15 (Internal quotation marks omitted.) Duffy v. Flagg, supra, 279 Conn. 692–93; see also Munn v. Hotchkiss School, 326 Conn. 540, 605, 165 A.3d 1167 (2017) (Espinosa, J., concurring) (“a physician need not disclose to patients every remote risk potentially associated with a medical procedure but only those deemed sufficiently likely as to be material“); Pedersen v. Vahidy, 209 Conn. 510, 523, 552 A.2d 419 (1989) (disclosure generally unnecessary when “the likelihood of such injury is remote“); Precourt v. Frederick, 395 Mass. 689, 694–95, 481 N.E.2d 1144 (1985) (“The materiality of information about a potential injury is a function not only of the severity of the injury, but also of the likelihood that it will occur. Regardless of the severity of a potential injury, if the probability that the injury will occur is so small as to be practically nonexistent, then the possibility of that injury occurring cannot be considered a material factor in a rational assessment of whether to engage in the activity that exposes one to the potential injury.“). Furthermore, “there is no need to disclose risks that are likely to be known by the average patient or that are in fact known to the patient usually because of a past experience with the procedure in question.” (Internal quotation marks omitted.) Logan v. Greenwich Hospital Assn., supra, 191 Conn. 292. A physician nonetheless is obligated “to advise a patient of feasible alternatives“; id., 287; even when “some involve more hazard than others.” Id., 295.
Under Connecticut law, application of the doctrine of informed consent is not confined to operations and surgical procedures. Rather, it concerns the physician‘s “duty to provide patients with material information concerning a proposed course of treatment.” Downs v. Trias, 306 Conn. 81, 89, 49 A.3d 180 (2012); see also Logan v. Greenwich Hospital Assn., supra, 191 Conn. 292–93 (physician obligated to provide patient with information “material for making a decision whether to embark upon a contemplated course of therapy“). A contemplated course of therapy includes—but is not limited to—a particular procedure, operation, or surgery. See Torres v. Carrese, supra, 149 Conn. App. 622.16 For example, in Curran v. Kroll, 303 Conn. 845, 859–60, 37 A.3d 700 (2012), the patient
1
In the present case, the parties do not dispute that the defendant obtained the informed consent of the plaintiff to perform the laser ablation of her vulva on April 25, 2014. Indeed, her consent was memorialized on the signed consent form. The plaintiff further concedes that she consented, as part of that course of treatment, to the May 14, 2014 postoperative examination.17 The plaintiff nonetheless argues that a substantial and material change in circumstances occurred when the defendant discovered the labial agglutination, which obligated the defendant to obtain her informed consent before embarking on a course of treatment therefor.18 That claim presents an issue of first impression in this state. For his part, the defendant in his appellate brief acknowledges that a “new informed consent” may be required when “a substantial and material change in circumstances” arises during a course of treatment.
The “determination of the proper legal standard in any given case is a question of law subject to our plenary review.” (Internal quotation marks omitted.) Mirjavadi v. Vakilzadeh, 310 Conn. 176, 183, 74 A.3d 1278 (2013). In light of the rationale underlying the doctrine of informed consent, as well as persuasive out-of-state authority, we agree with the parties that, when a substantial and material change in circumstances occurs during the course of medical treatment, a duty may arise on the part of the physician to secure the consent of the patient before proceeding further.
Significantly, our decisions on the doctrine of informed consent do not limit that duty to the actual date that a particular procedure is performed or medical service is rendered. Rather, Connecticut law consistently has delineated that duty as one that applies to a “course of treatment“; see, e.g., Downs v. Trias, supra, 306 Conn. 89; or a “course of therapy” undertaken by a patient. See Logan v. Greenwich Hospital Assn., supra, 191 Conn. 293. While a physician‘s treatment of a patient sometimes begins and ends in a matter of hours or days, a course of treatment often transpires over a much longer period. See, e.g., Curran v. Kroll, supra, 303 Conn. 848 (medical treatment of patient occurred over span of “approximately one month before her death” [internal quotation marks omitted]); Tetreault v. Eslick, 271 Conn. 466, 469, 857 A.2d 888 (2004) (physician “planned to continue [the] course of treatment for a period of at least six months“).
As the Supreme Court of Wisconsin has observed, a patient‘s consent to treatment is not “categorically immutable” once it has been given to a physician. Schreiber v. Physicians Ins. Co. of Wisconsin, 223 Wis. 2d 417, 429, 588 N.W.2d 26, cert. denied, 528 U.S. 869, 120 S. Ct. 169, 145 L. Ed. 2d 143 (1999). When a substantial change of circumstances occurs during the course of medical treatment, it “results in an alteration of the universe of options a patient has and alters the agreed upon course of navigation through that universe.”20 Id., 432. Although a patient previously may have
We find that authority highly persuasive, particularly in light of the underpinnings of the doctrine of informed consent. When consent is provided by a patient in a given case, its scope necessarily is limited to the course of treatment outlined by the medical practitioner, and encompasses only those risks, hazards, alternatives, and anticipated benefits then disclosed. For that reason, when a truly substantial change arises during the course of treatment that meets the standard of materiality under our law,22 we agree that the medical practitioner generally is obligated to obtain consent from the patient before proceeding further. To conclude otherwise would contravene the fundamental purpose of the doctrine of informed consent.
2
At the same time, the circumstances in which substantial changes arise do not always lend themselves to such a dialogue between patient and physician. For that reason, a physician‘s duty to secure informed consent is not an absolute one, but rather is contingent on the particular context in which it arises. To accommodate the exigencies inherent in the practice of medicine, courts have crafted exceptions to the physician‘s general duty that excuse the failure to obtain such consent in certain circumstances.23 See generally
The emergency exception has been recognized by courts across the country. See Shine v. Vega, 429 Mass. 456, 464, 709 N.E.2d 58 (1999) (“[t]he emergency exception to the informed consent doctrine has been widely recognized“); Miller v. Rhode Island Hospital, 625 A.2d 778, 784 (R.I. 1993) (“[e]qually as well established as the informed consent doctrine is the exception to it for emergencies“). As the court in Canterbury explained, the emergency exception “comes into play when the patient is unconscious or otherwise incapable of consenting, and harm from a failure to treat is imminent and outweighs any harm threatened by the proposed treatment. When a genuine emergency of that sort arises, it is settled that the impracticality of conferring with the patient dispenses with need for it.” Canterbury v. Spence, supra, 464 F.2d 788–89. Put simply, “a physician is not required to obtain the patient‘s consent in an emergency situation where the patient is in immediate danger.” Wheeldon v. Madison, 374 N.W.2d 367, 375 (S.D. 1985). Although our appellate courts have not had occasion to circumscribe the precise parameters of the emergency exception, it applies under our state regulations to medical treatment performed in hospitals throughout Connecticut. See
Courts also have recognized that a physician‘s alleged failure to secure informed consent properly is excused by the existence of a valid waiver on the part of the patient. See, e.g., Arato v. Avedon, 5 Cal. 4th 1172, 1189, 858 P.2d 598, 23 Cal. Rptr. 2d 131 (1993) (en banc) (“a patient may validly waive the right to be informed“); Spar v. Cha, 907 N.E.2d 974, 983 (Ind. 2009) (“[m]any jurisdictions recognize either by judicial ruling or statute that a patient may waive her right to informed consent“); cf.
treatment . . .’ to . . . ‘I don’t want to decide; you make the decision as to what should be done.’ Waiver thus permits the patient to be treated without participating in the medical decisionmaking process, or at least without fully participating.’’ (Footnote omitted.) A. Meisel, supra, 1979 Wis. L. Rev. 459.
In Logan v. Greenwich Hospital Assn., supra, 191 Conn. 292, our Supreme Court acknowledged an additional exception, noting that ‘‘there is no need to disclose risks that are likely to be known by the average patient or that are in fact known to the patient usually because of a past experience with the procedure in question.’’ (Internal quotation marks omitted.) See also Ranciato v. Schwartz, supra, Superior Court, Docket No. CV-11-6023107-S (plaintiff could not prevail on informed consent claim when ‘‘she knew of [the] risk due to past experience’’); Crain v. Allison, 443 A.2d 558, 562 (D.C. 1982) (‘‘a physician need not advise concerning risks of which the patient already has actual knowledge’’); Spar v. Cha, supra, 907 N.E.2d 984 (physician need not advise of risks known to patient because of past experience with procedure); Sard v. Hardy, 281 Md. 432, 445, 379 A.2d 1014 (1977) (‘‘disclosure is not required where the risk is . . . known to the patient’’); Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d 1, 12–13, 227 N.W.2d 647 (1975) (physician ‘‘should not be required to discuss risks that are apparent or known to the patient’’). The rationale for that exception is that the patient who is aware of the risks that accompany a particular procedure or course of treatment already is an informed patient.
Application of the doctrine of informed consent, therefore, involves more than simply an examination of the communications, or lack thereof, between physician and patient. It also requires consideration of the context in which the physician’s duty arose. That context is crucial to the determination of whether an exception to that duty is implicated. Moreover, in an action predicated on an alleged lack of informed consent, ‘‘[t]he burden of proving an exception to [the] duty’’ rests with the physician. Scott v. Bradford, 606 P.2d 554, 558 (Okla. 1979); see also Canterbury v. Spence, supra, 464 F.2d 791 (‘‘[t]he burden of going forward with evidence pertaining to a privilege not to disclose . . . rests properly upon the physician’’ [footnote omitted]); Cobbs v. Grant, supra, 8 Cal. 3d 245 (physician bears ‘‘the burden of [proving] justification for failure to disclose’’); Shine v. Vega, supra, 429 Mass. 462 (‘‘the [defendant physician and hospital] had the burden of proving that an exception relieved them of tort liability’’).
Accordingly, we conclude that, when a substantial and material alteration of the risks, anticipated benefits, or alternatives previously disclosed to the patient occurs during a course of medical treatment, the doc-trine of informed consent generally requires an additional informed consent discussion between physician and patient. When, however, the context of such alteration implicates an exception to the duty to disclose, the law relieves the physician of that obligation. With that analytical framework in mind, we return our attention to the present case.
B
In her revised complaint, the plaintiff alleges a cause of action for lack of informed consent. Distilled to its essence, her claim is that, upon discovering a complication that required medical intervention, the defendant unilaterally proceeded with a course of treatment without obtaining her informed consent. The court
Summary judgment is appropriate when ‘‘the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’’
The following additional facts, as gleaned from the pleadings, affidavits, and other proof submitted when viewed in a light most favorable to the plaintiff; Martinelli v. Fusi, 290 Conn. 347, 350, 963 A.2d 640 (2009); are relevant to the plaintiff’s claim. We begin by noting what is not in dispute. Years prior to the medical treatment at issue in this appeal, the defendant performed a laser ablation of the plaintiff’s vulva to remove precancerous growths. Prior to performing that procedure on August 25, 2011, the defendant discussed the procedure with the plaintiff and she signed a consent form so indicating. After the procedure concluded, the plaintiff was provided lidocaine gel as a preventative measure to avoid labial agglutination.28 The defendant
When precancerous growths later returned, the plaintiff again consulted with the defendant. The defendant discussed the laser ablation treatment with the plaintiff, who then signed a standardized consent form. That form stated in relevant part that the defendant ‘‘has explained to me in a way that I understand: (a) the nature and purpose of the procedure(s); (b) the potential benefits and risks of the procedure(s) including bleeding, infection, accidental injury of other body parts, failure to permanently improve my condition or, death, as well as the potential risks and benefits of the medications that may be administered to me as part of the procedure; and (c) the alternative(s) to the procedure(s) and their potential risks and benefits, including the option of not having the procedure.’’ The consent form also authorized the defendant ‘‘to do whatever may be necessary if there is a complication or unforeseen condition during my procedure.’’
The defendant performed a second laser ablation to remove precancerous growths on the plaintiff’s vulva on April 25, 2014. When that procedure concluded, the plaintiff again was provided with lidocaine gel and was advised to schedule a postoperative examination ‘‘so that [the defendant] could examine the surgical site andmake sure that it was healing properly.’’ The defendant conducted that examination approximately three weeks later, on May 14, 2014. Four individuals were present at that examination: the plaintiff, the defendant, Andersen, and an unidentified nurse. It is undisputed that the plaintiff consented to the postoperative examination. See footnote 17 of this opinion.
After arriving at the Yale University Gynecologic Center, the plaintiff undressed and placed her legs in stirrups. The defendant began his examination with a visual inspection of the plaintiff and then informed her that ‘‘everything looked fine.’’ The parties disagree as to precisely what happened next.
In her operative complaint, the plaintiff alleged that the defendant discovered the labial agglutination ‘‘during’’ the postoperative examination; the defendant admitted the truth of that allegation in his answer. The plaintiff further alleged that the defendant at that time embarked on a course of treatment for that complication without first obtaining her informed consent. More specifically, the plaintiff alleged that the defendant ‘‘forcefully inserted his fingers through [her] agglutinated labia’’ without informing her of ‘‘the nature of the procedure,’’ its ‘‘risks and hazards,’’ its ‘‘anticipated benefits,’’ and ‘‘any alternatives [when] other procedures were available . . . .’’
In his November 4, 2016 affidavit, the defendant described what transpired during the postoperative examination as follows: ‘‘I informed [the plaintiff] that I was going to examine her vagina. . . . In order to observe the surgical site, I had to separate [her] labia. As I did so, she yelped in pain. At that moment, I realized that her labia had become agglutinated. I apologized for causing her pain, and I continued with the examination. . . . Agglutination, which is the partial fusing of skin, can occur after laser ablation surgery. It occurs at the surgical site, which in [the
In opposing the motion for summary judgment, the plaintiff provided a different account of those events. In her sworn affidavit, she stated: ‘‘[W]hen the defendant entered the room, he said that he was going to take a look at me, and further stated that everything looked fine. . . . Then, without warning, [he] forcefully inserted his fingers into my vagina, separating an agglutination . . . of my labia, which caused me severe pain. . . . I cried out in pain as a result of the defendant inserting his fingers through the agglutination, and [he] expressed his concern that I may pass out as a result. . . . The defendant stated that he performed this procedure so that I would not have to go to the operating room for surgery.’’ The plaintiff further stated that the defendant provided ‘‘no warning or notice to [her] . . . at any time before’’ he remedied the labial agglutination. In her affidavit, Andersen likewise averred that the defendant ‘‘expressed concern that the plaintiff may pass out as a result of the separation of her agglutinated labia’’ and then ‘‘stated that he performed [the] procedure so that the plaintiff would not have to go to the operating room for surgery.’’
Although the defendant claims that he ‘‘did not know that [the plaintiff’s] labia were agglutinated until [he] separated them,’’ the affidavits of the plaintiff and Andersen, read in the light most favorable to the plaintiff as the nonmoving party; see Brooks v. Powers, 328 Conn. 256, 259, 178 A.3d 366 (2018); suggest otherwise. Those affidavits allege that the defendant, after separating her agglutinated labia, informed them that he ‘‘performed [the] procedure so that the plaintiff would not have to go to the operating room for surgery.’’29 (Emphasis added.) Viewed in a manner most favorable to the plaintiff, the finder of fact could construe that purported statement, in light of the defendant’s admission that ‘‘severely agglutinated labia may require a surgical procedure’’ and the significant pain experienced by the plaintiff,30 as an admission that the defendant
native existed.32
In light of the foregoing, we conclude that a genuine issue of material fact exists as to whether the discovery of the medical complication during the postoperative examination constituted a substantial and material change in circumstances, such that the defendant was obligated to disclose the risks, anticipated benefits, and viable alternatives to the plaintiff before embarking on a course of treatment therefor.
That determination does not end our inquiry, as a physician’s failure to obtain informed consent may be excused in certain circumstances, such as when the patient has authorized the physician to remedy complications that arise during a course of medical treatment. See, e.g., Hageny v. Bodensteiner, supra, 316 Wis. 2d 250–51. In rendering summary judgment, the court concluded that the materials submitted in connection with the motion for summary judgment demonstrated that the defendant’s conduct in remedying the labial agglutination was treatment ‘‘for which [the defendant] received the written consent of the plaintiff.’’ We disagree.
It is undisputed that, in the spring of 2014, the plaintiff, in consultation with the defendant, embarked on a course of treatment for precancerous growths on her vulva. That course of treatment included both the laser ablation procedure that the defendant performed on April 25, 2014, and the postoperative examination on May 14, 2014.
The plaintiff’s informed consent is memorialized on the consent form, a copy of which was submitted as an exhibit to the defendant’s reply to the plaintiff’s objection
Undoubtedly, that signed consent vested the defendant with discretion to deal with any complications or unforeseen conditions that arose during the laser ablation procedure performed on April 25, 2014. That consent form nevertheless is silent as to postoperative care. It confirms only that the plaintiff had discussed the CO2 laser ablation procedure and ‘‘other options’’ with the defendant. The consent form contains no indication that the parties discussed the possibility of labial agglutination or various medical treatments for thatcomplication. Indeed, in his November 4, 2016 affidavit, the defendant attested that, as a matter of practice, he does ‘‘not warn patients that their labia might be agglutinated because most do not have agglutinated labia.’’
Furthermore, paragraph 3 of the standardized consent form begins by stating: ‘‘My responsible practitioner has explained to me in a way that I understand: (a) the nature and purpose of the procedure(s); (b) the potential benefits and risks of the procedure(s) including bleeding, infection, accidental injury of other body parts, failure to permanently improve my condition or, death, as well as the potential risks and benefits of the medications that may be administered to me as part of the procedure; and (c) the alternative(s) to the procedure(s) and their potential risks and benefits, including the option of not having the procedure.’’ It then states: ‘‘I understand that some possible complications of the procedure(s) include’’ followed by several blank lines. That part of the consent form was left blank, with no possible complications identified.
Read literally, and in the light most favorable to the plaintiff as the nonmoving party, the consent form authorized the defendant ‘‘to do whatever may be necessary’’ only with respect to unforeseen complications that arose during the April 25, 2014 laser ablation procedure. The defendant has provided no evidence, such as affidavit testimony indicating otherwise. Accordingly, we conclude that a genuine issue of material fact exists as to whether the plaintiff had authorized the defendant to remedy unforeseen complications that arose not during the April 25, 2014 laser ablation procedure, but during the postoperative examination weeks later.
III
In sum, we conclude that the court improperly granted the defendant’s motion to dismiss the battery and negligent infliction of emotional distress counts of the August 25, 2015 amended complaint due to noncompliance with
In this opinion the other judges concurred.