Opinion
No. X06 CV05 5001692S
June 21, 2006
MEMORANDUM OF DECISION ON THE DEFENDANTS' MOTIONS TO STRIKE
STATEMENT OF THE CASE
On September 27, 2005, the plaintiff Denise Glover, filed an eighteen-count complaint against the following nine defendants: Griffin Health Services Corporation (Griffin Hospital); Neurological Specialists, P.C. (Neurological Specialists); Neurology Associates of Southern Connecticut (Neurology Associates); Hill Health Corporation (Hill Health); Sybil Cheng, an osteopathic doctor; and Ramin Ahmadi, Seema D'Souza, Christopher Michos, and James Butler, medical doctors. In the complaint, the plaintiff asserts claims of negligence and lack of informed consent against each defendant.
No appearance for the defendant Neurology Associates appears in the file and a motion for default for failure to appear was filed by the plaintiff against this defendant on March 17, 2006.
More specifically, the plaintiff's complaint sets forth the following counts and causes of action: count one against Butler for negligence; count two against Butler for lack of informed consent; count three against Neurological Specialists for negligence; count four against Neurological Specialists for lack of informed consent; count five against Neurology Associates for negligence; count six against Neurology Associates for lack of informed consent; count seven against Ahmadi for negligence; count eight against Ahmadi for lack of informed consent; count nine against D'Souza for negligence; count ten against D'Souza for lack of informed consent; count eleven against Hill Health for negligence; count twelve against Hill Health for lack of informed consent; count thirteen against Michos for negligence; count fourteen against Michos for lack of informed consent; count fifteen against Cheng for negligence; count sixteen against Cheng for lack of informed consent; count seventeen against Griffin Hospital for negligence; and, count eighteen against Griffin Hospital for lack of informed consent.
In her complaint the plaintiff alleges the following facts. On February 10, 2004, the plaintiff went to the Griffin Hospital emergency room complaining of a headache and was seen by defendant Michos. Michos ordered a CT scan of the plaintiff's head and a lumbar puncture. The plaintiff underwent both procedures, and defendant Ahmadi was sent copies of both reports. Although the scan indicated no acute abnormality, the lumbar puncture "demonstrated an elevated opening pressure of 49 cm/water with a closing pressure of 39 cm/water." Later that day, Michos diagnosed the plaintiff with a headache, prescribed Percocet and discharged her from the hospital.
Thereafter, on March 8, 2004, the plaintiff went to her primary care facility, Hill Health, and was seen by defendant D'Souza for headaches and other symptoms. D'Souza recommended a neurological consult and an MRI. On March 12, 2004, the plaintiff underwent the MRI and a copy of the results were sent to Ahmadi. The doctor who performed the MRI reported "a partially empty sella and a posterior fossa cisterna matter or arachnoid cyst." On April 16, 2004, defendant Butler consulted with the plaintiff at Griffin Hospital, reviewed the MRI report, and "prescribed a trial of Neurontin for a right facial spasm."
On April 26, 2004, the plaintiff again went to Hill Health for headaches and other symptoms. D'Souza saw the plaintiff, diagnosed migraines, prescribed Imitrex and told her to return in one month. On April 28, 2004, the plaintiff went back to Griffin Hospital for headaches and was seen by a physician's assistant who prescribed Cafergot and discharged her. On April 30, 2004, the plaintiff returned to Griffin Hospital for headaches and was seen by defendant Cheng. Cheng diagnosed the plaintiff with "opthalmoplegic migraines" and asked for a neurological consult with Butler. Butler also diagnosed the plaintiff with "opthalmoplegic migraines" and he recommended a follow-up. On May 3, 2004, the plaintiff returned to Griffin Hospital for headaches. Sometime thereafter she went blind.
In the counts alleging lack of informed consent, the plaintiff alleges that the defendants did not explain other test or study options, the risks or benefits of performing additional tests or studies, or the risks or benefits of monitoring her condition. The plaintiff further alleges that the ways in which the defendants failed to obtain informed consent included: failure to inform the plaintiff of the results of the lumbar puncture, failure to explain the significance of the lumbar puncture and its findings, failure to explain the significance of the MRI findings, failure to inform the plaintiff of the risks and benefits of additional tests or studies, failure to inform the plaintiff of the limitations of the neurological and other examinations that she underwent, failure to provide the correct diagnosis, failure to inform the plaintiff that they had not identified the cause of the plaintiff's headaches, and failure to inform the plaintiff of the benefits of having her condition monitored. The plaintiff alleges that this conduct caused a delayed diagnosis leading to her permanent blindness, and had she been properly informed, she would have undergone additional tests, studies and monitoring. The plaintiff also alleges that she would have explored other options to identify the source of her headaches, thereby preventing her blindness.
On December 20, 2005, Butler and Neurological Specialists filed a motion to strike the lack of informed consent claims contained in counts two and four, with a memorandum of law in support (Butler motion). On January 9, 2006, Griffin Hospital, Michos and Cheng filed a motion to strike the plaintiff's lack of informed consent claims contained in counts fourteen, sixteen and eighteen (Griffin motion), along with a memorandum of law in support. On February 10, 2006, Ahmadi and D'Souza filed a motion to strike counts eight and ten, requesting permission to join the Griffin motion and memorandum in support. On February 13, 2006, the plaintiff filed a memorandum of law in opposition to the Griffin motion and a memorandum in opposition to the Butler motion. Arguments were heard during short calendar on March 20, 2006.
Accordingly, reference made in this memorandum to the Griffin motion includes these five defendants, Griffin Hospital, Michos, Cheng, Ahmadi and D'Souza. As no motion to strike has been filed by Neurology Associates and Hill Health against counts six and ten, respectively, those lack of informed consent claims are not affected by this decision.
DISCUSSION
"The purpose of a motion to strike is to contest . . . the legal sufficiency of the allegations of any complaint . . . to state a claim upon which relief can be granted." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). The role of the trial court in ruling on a motion to strike is "to examine the [complaint], construed in favor of the [plaintiff], to determine whether the [pleading party has] stated a legally sufficient cause of action." (Internal quotation marks omitted.) Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378, 698 A.2d 859 (1997). "In ruling on a motion to strike, the court is limited to the facts alleged in the complaint." (Internal quotation marks omitted.) Faulkner v. United Technologies Corp., 240 Conn. 576, 580, 693 A.2d 293 (1997).
In support of the Butler motion, defendants Butler and Neurological Specialists argue that a cause of action for lack of informed consent requires the plaintiff to allege that a physician performed or recommended a procedure, and that because there was no procedure alleged for which a physician would have been required to obtain consent in this case, the lack of informed consent claim is not legally sufficient.
In the Butler motion, the defendants assert that they "move to strike the second and fourth counts of the plaintiff's complaint for the reason that these claims do not state a claim upon which relief may be granted." The motion itself does not provide any reason for the insufficiency and relies on the attached memorandum of law. Practice Book § 10-41 provides that each motion to strike "shall distinctly specify the reason or reasons for each claimed insufficiency." Moreover, our Supreme Court has stated that "a motion to strike that does not specify the grounds of insufficiency is fatally defective . . . and that Practice Book § 155, [now § 10-42] which requires a motion to strike to be accompanied by an appropriate memorandum of law citing the legal authorities upon which the motion relies, does not dispense with the requirement of [Practice Book] § 154 [now § 10-41] that the reasons for the claimed pleading deficiency be specified in the motion itself." (Citation omitted; internal quotation marks omitted.) Morris v. Hartford Courant Co., 200 Conn. 676, 683 n. 5, 513 A.2d 66 (1986). The plaintiff, however, has not objected to the form of the motion and, therefore, the court will consider the motion in the form presented. See id.; see also Bouchard v. People's Bank, 219 Conn. 465, 468 n. 4, CT Page 11305 594 A.2d 1 (1991).
Similarly, in support of the Griffin motion, defendants Griffin Hospital, Michos and Cheng argue that the informed consent claim should fail because the plaintiff has not alleged that she submitted to a procedure that she would not have otherwise consented to had she been adequately informed. Additionally, these defendants argue that informed consent requires disclosure of information prior to a procedure and because the plaintiff alleges a failure to disclose information that developed after and as a result of her CT scan, lumbar puncture and MRI procedures, the claim must fail. Finally, in the Griffin motion, the defendants also argue that the plaintiff's informed consent allegations fail because they arc indistinguishable from the allegations set forth in the plaintiff's negligence claims.
In opposition, the plaintiff argues that the duty to obtain informed consent includes a duty to inform, and in this case, the plaintiff has adequately alleged that the defendants' failure to inform deprived her of the right and opportunity to make prudent decisions about the course of her treatment. The court concludes that as a matter of law, the complaint fails to allege the elements of the cause of action of lack of informed consent as defined by Connecticut case law, and therefore, the motions to strike are granted.
"The informed consent doctrine derives from 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 . . . Informed 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 . . . [When considering] an alleged lack of informed consent, [the court's] inquiry [is] confined to whether the physician has disclosed: (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 . . . Thus, [u]nlike the traditional action of 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." (Citations omitted; internal quotation marks omitted.) Sherwood v. Danbury Hospital, 278 Conn. 163, 180, 896 A.2d 777 (2006).
More importantly, as explained by the Appellate Court, "[a]ll the informed consent cases in Connecticut have involved the adequacy of information disclosed regarding the procedure and treatment to be performed. See, e.g., Fabrizio v. Glaser, 237 Conn. 25, 26, 675 A.2d 844 (1996) (alleging lack of informed consent for extraction of wisdom teeth); Pedersen v. Vahidy, 209 Conn. 510, 512, 552 A.2d 419 (1989) (alleging lack of informed consent for failure to disclose risks associated with lipoma removal); Shelnitz v. Greenberg, 200 Conn. 58, 60, CT Page 11300 509 A.2d 1023 (1986) (alleging lack of informed consent for failure to disclose spinal headache as risk of myelogram procedure); Logan v. Greenwich Hospital Ass'n., 191 Conn. 282, 284, 465 A.2d 294 (1983) (alleging lack of informed consent for failure to disclose alternatives to percutaneous renal biopsy)." Alswanger v. Smego, 257 Conn. 58, 67, 776 A.2d 1066 (2003). Thus, Connecticut cases in this area uniformly involve claims for lack of informed consent rising from risks associated with the treatment or procedure itself, not from risks associated with failure to properly diagnose or to provide treatment or testing.
See also Sherwood v. Danbury Hospital, supra, 278 Conn. 181 (lack of informed consent claim based on blood transfusion); DeGennaro v. Tandon, 89 Conn.App. 183, 186, 873 A.2d 191 (lack of informed consent claim based on replacing an old tooth filling with a new medicated filling), cert. denied, 275 Conn. 914, 879 A.2d 892 (2005); Duffy v. Flagg, supra, 88 Conn.App. 485 (lack of informed consent claim based on vaginal birth after cesarean section); Pekera v. Purpora, 80 Conn.App. 685, 687, 836 A.2d 1253 (2003) (lack of informed consent claim based on endotrachial intubation), aff'd, 273 Conn. 348, 869 A.2d 1210 (2005); Alswanger v. Smego, 257 Conn. 58, 60, 776 A.2d 1066 (2003) (lack of informed consent claim based on surgical procedure); Janusauskas v. Fichman, 264 Conn. 796, 810-11, 826 A.2d 1066 (2003) (lack of informed consent claim based on radial keratotomy); Godwin v. Danbury Eye Physicians Surgeons, P.C., 254 Conn. 131, 134, 757 A.2d 516 (2000) (lack of informed consent claim based on laser eye surgery with retrobulbar anesthesia); Wright v. Hull, 50 Conn.App. 439, 448, 718 A.2d 969 (lack of informed consent claim based on oral surgery), cert. denied, 247 Conn. 939, 723 A.2d 320 (1998); Gemme v. Goldberg, 31 Conn.App. 527, 529-33, 626 A.2d 318 (1993) (same); Mason v. Walsh, 26 Conn.App. 225, 230-31, 600 A.2d 326 (1991) (lack of informed consent claim based on administration of general anesthesia), cert. denied, 221 Conn. 909, 602 A.2d 9 (1992); Petriello v. Kalman, 215 Conn. 377, 380, 576 A.2d 474 (1990) (lack of informed consent claim based on procedure to remove fetus); Pedersen v. Vahidy, 209 Conn. 510, 512, 552 A.2d 419 (1989) (lack of informed consent claim based on operation to remove lipoma); Lambert v. Stovell, 205 Conn. 1, 2-3, 529 A.2d 710 (1987) (lack of informed consent claim based on ankle fusion); Shenefiled v. Greenwich Hospital Ass'n., 10 Conn.App. 239, 241, 552 A.2d 829 (1987) (lack of informed consent claim based on performance of vasectomy and prostatectomy instead, of retropubic prostatectomy and cystoscopy).
In this regard, the Appellate Court has also expressly stated that the typical "basis for claiming a lack of informed consent is a failure to make a sufficient disclosure of the risks or alternatives to a certain medical procedure or treatment." (Emphasis added.) Caron v. Adams, 33 Conn.App. 673, 687, 638 A.2d 1073 (1994). The case law on this issue demonstrates that informed consent claims require allegations that a patient has undergone a particular treatment or procedure and that the lack of information regarding the risks or alternatives was directly associated therewith. For example, in Logan v. Greenwich Hospital Ass'n., supra, 191 Conn. 285, the lack of informed consent claim involved a failure to inform a patient that an open incision biopsy was an alternative to the needle biopsy that the plaintiff patient actually underwent. Similarly, in Gemme v. Goldberg, 31 Conn.App. 527, 528, 626 A.2d 318 (1993), the plaintiff's lack of informed consent claim originated from an orthodontist and an oral surgeon's failure to discus the risks and alternatives to the oral surgery performed. In Shelnitz v. Greenberg, 200 Conn. 58, 60-61, 509 A.2d 1023 (1986), the lack of informed consent claim involved a neurosurgeon's failure to inform the patient of any of the risks involved with undergoing a myelogram, an invasive diagnostic procedure. Also, in Lambert v. Stovell, 205 Conn. 1, 3, 529 A.2d 710 (1987), the plaintiff's informed consent claim was premised on the allegation that he underwent an ankle fusion and the defendant physician did not sufficiently inform him about the material risks and consequences of the fusion, or about the fact that the plaintiff's preoperative x-rays had revealed an essentially normal ankle. In addition, in Wright v. Hutt, 50 Conn.App. 439, 441, 718 A.2d 969, cert. denied, 247 Conn. 939, 723 A.2d 320 (1998), the lack of informed consent claim was based on a breach of a duty to inform a patient of the risks associated with the temporomandibular joint implant surgery which the plaintiff underwent. Accordingly, these cases indicate that an element of an informed consent claim includes an alleged lack of information regarding the risks or alternatives of a treatment or procedure that the plaintiff actually underwent.
This point was recently reiterated in DeGennaro v. Tandon, 89 Conn.App. 183, 873 A.2d 191, cert. denied, 275 Conn. 914, 879 A.2d 892 (2005), where the Appellate Court characterized the plaintiff's informed consent claim as one in which the information that the defendant failed to supply related to the risks of and alternatives to a certain treatment or procedure. In that case, the court stated that the plaintiff's informed consent claim was one that "rested solely on the defendant's failure to inform the plaintiff of her lack of experience with the equipment she used on the plaintiff, her lack of readiness to treat the plaintiff and her lack of staff to aid her in [replacing an old tooth filling with a new medicated filling]." Id., 188. The court concluded that the evidence at trial was sufficient for the jury to find that the defendant failed to inform the plaintiff of these risks. Id., 189. Thus, DeGennaro further clarifies and exemplifies how a lack of informed consent claim involves a failure to inform a patient about the particular risks or alternatives associated with undergoing a certain treatment or procedure.
In the present case, the plaintiff's claims differ from the descriptions of the cause of action for lack of informed consent as articulated in these cases. Here, there is no allegation that the defendants failed to inform the plaintiff of the particular risks or alternatives associated with a certain treatment or procedure. Instead, the plaintiff's claims are based on allegations that the defendants failed to inform her of the limitations, results, findings, or significance of her CT scan, MRI, lumbar puncture and examinations, and that the defendants failed to inform her of additional tests or studies that were available. The plaintiff does not allege any failure to inform the plaintiff of the risks or alternatives associated with undergoing the CT scan, MRI or lumbar puncture, but rather, she alleges a failure to inform her of other test or study options, the risks or benefits of performing additional tests or studies, and the risks or benefits of monitoring her condition. Thus, the plaintiff's informed consent claims are devoid of any allegations of a failure to inform her of the risks or alternatives associated with a particular treatment or procedure that she received, and as such, fail to assert the requisite elements of this cause of action as set forth by Connecticut cases.
Moreover, inextricably linked to the plaintiff's informed consent claim is the allegation that the defendants failed to inform her about the appropriate or correct treatment, test or diagnosis. This allegation distorts the informed consent claim because it would require the court to extend the informed consent doctrine to require a physician to inform a patient of conditions which a doctor either fails to diagnose or diagnoses incorrectly. Such a claim creates a legal anomaly which has not yet been addressed by our appellate courts, but which has been addressed in other jurisdictions. See Backlund v. University of Washington, 137 Wash.2d 651, 661 n. 2, 975 P.2d 950 (1999) (doctor may be liable pursuant to negligence theory for misdiagnosis but cannot also be liable pursuant to lack of informed consent statute).
For example, in Washington state, where the common law of informed consent has been codified, the Washington Supreme Court stated: "Where a physician arguably misdiagnoses the patient's condition and recommends a course of treatment for the patient based on that misdiagnosis, the physician is properly liable in negligence for the misdiagnosis if such diagnosis breaches the standard of care. But the physician should not be additionally liable under . . . [the informed consent statute] for a condition unknown to the physician. For example, a physician who misdiagnosed a headache as a transitory problem and failed to detect a brain tumor may be guilty of negligence for the misdiagnosis, but it seems anomalous to hold the physician culpable under . . . [the informed consent statute] for failing to secure the patient's informed consent for treatment for the undetected tumor." Backlund v. University of Washington, 137 Wash.2d 651, 661 n. 2, 975 P.2d 950 (1999).
Similarly, in Roukounakis v. Messer, 63 Mass.App. 482, 487, 826 N.E.2d 777 (2005), the Massachusetts Appellate Court held that the trial judge was correct in refusing to charge the jury on the plaintiff patient's lack of informed consent claim because the doctor's failure to properly diagnose the plaintiff gave rise to a cause of action sounding in negligence but not one based on the principles of informed consent. In Roukounakis, the plaintiff underwent a mammogram and the radiologist indicated that everything was normal. Id., 482. Subsequently, the plaintiff underwent a second mammogram which revealed a suspicious mass. Id., 482-83. Thereafter, the plaintiff underwent an ultrasound and a surgical biopsy which also showed a mass. Id., 483. The plaintiff then underwent a mastectomy and four of her lymph nodes proved to be cancerous. Id. Subsequently, she was treated with chemotherapy. Id.
The trial judge determined that a lack of informed consent claim had not been properly asserted and refused to permit the jury to consider the issue. In making this decision, the judge weighed the need to accommodate the plaintiff's right to know, fairness to the physician, and society's interest that medicine be practiced without placing unrealistic or unnecessary burdens on practitioners. Id., 484. On appeal, the Massachusetts Appellate Court affirmed, concluding that the "crux of the plaintiff's claim was [the defendant radiologist's] failure properly to diagnose and to recognize the need for further tests"; id., 487; and the court found persuasive the reasoning of those courts that disallowed a joining of a lack of informed consent claim with a misdiagnosis claim.
In the present case, as previously stated, the plaintiff's lack of informed consent claims are essentially premised on the allegation that the defendants failed properly to test for or to make a diagnosis of a condition which led to her blindness. As such, although the plaintiff may have properly set forth claims of negligence in other counts of her complaint, her allegations are legally insufficient to support the counts asserting lack of informed consent.
CONCLUSION
Therefore, for the foregoing reasons, the defendants' motions to strike counts two, four, eight, ten, fourteen, sixteen and eighteen of the plaintiff's complaint alleging lack of informed consent are hereby granted.
So ordered.