Opinion
No. CV08-5020876
May 4, 2009
MEMORANDUM OF DECISION ON MOTION TO DISMISS
This has been a difficult case for the court to decide. The defendant has filed a motion to dismiss claiming the court lacks subject matter jurisdiction because of the plaintiff's failure to comply with § 52-190a. That statute in relevant part says that in any action claiming that injury "resulted from the negligence of a health care provider" the attorney shall make "a reasonable inquiry as permitted by the circumstances" and thereby determines "that there are grounds for a good faith belief that there has been (such) negligence." The complaint shall have attached to it certificate to the effect that "reasonable inquiry gave rise to a good faith belief." Then the statute says:
To show the existence of such good faith, the claimant or claimant's attorney . . . shall obtain a written and signed opinion of a similar health care provider, as defined in section 52-184c, which similar Health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion . . . The claimant or Claimant's attorney . . . shall retain the original written opinion and shall attach a copy of such written opinion, with the name and signature of the similar health care provider expunged, to such certificate.
The defendant frames his motion in terms of subject matter jurisdiction but Votre v. County Obstetrics, 113 Conn.App. 569 (2009) put an end to that method of an alleged failure to comply with § 52-190a. These motions are disciplinary motions and serve two purposes, to reduce the number of frivolous malpractice claims and to allow defendants as soon as practicable to learn of the nature of the claims against them so they can retain their own experts and prepare for discovery practice expeditiously.
A.
To fully discuss all issues presented by this motion it is necessary to review the complaint at which no request to revise was ever directed. The defendant surgeon operated upon the plaintiff's forehead for removal of a lipoma. He informed her of risks posed by the procedure; he said the procedure would cause nerve damage that would cause numbness on her forehead. And she consented to go forward with it. After the surgery the plaintiff experienced great pain and headaches. The claim is made that during the surgery injury was done to the trigeminal nerve causing the post operative injury complained of by the plaintiff.
Paragraph 11 states the nerve injury "was the proximate result of (the defendant doctor's) deviation from the applicable standard of surgical care" in that:
a. He (the doctor) failed to identify and protect the trigeminal nerve
b. He intraoperatively injured the trigeminal nerve
c. He failed to appreciate the injury to the trigeminal nerve intraoperatively
d. He failed to appreciate the injury to the trigeminal nerve postoperatively.
Paragraph 12 then states: "12. Additionally or in the alternative, the above described injury was the result of the defendant's failure to obtain the plaintiff's informed consent to the procedure in that he failed to advise her of injury to the trigeminal nerve and resulting chronic pain." The complaint goes on to allege debilitating chronic pain.
B.
The motion to dismiss is directed at the entire complaint, both as to the allegation of malpractice in performing the surgical procedure and as to the lack of informed consent claim. An informed consent claim is a form of medical malpractice Logan v. Greenwich Hospital Ass'n., 191 Conn. 282, 288 (1983); Lambert v. Stovell, 205 Conn. 1, 5 (1987). The objection to the motion is based on two grounds in the written brief (1) "Our Supreme Court has repeatedly held that an informed consent claim is evaluated not by the prevailing standard of care as evidenced by expert testimony, but rather an objective lay standard . . . Since expert testimony is not required to prove an informed consent case, there can be no earthly purpose behind requiring an expert's opinion in order to maintain such a claim" (2) if the foregoing is accepted, the malpractice claim cannot be dismissed because the court may dismiss an entire complaint or count but not a paragraph." The action was "brought in a single count, no request to revise has yet been filed, the instant motion is procedurally unripe."
C. (i)
The court will discuss the informed consent claim first. As noted it runs as follows, proposition (1) such a claim is evaluated by a lay standard not by an expert standard of care (2) it follows that since expert testimony is not required to prove such a claim there is no need to supply a § 52-190a certificate setting forth an expert opinion.
This is a difficult case but for reasons it will state the court does not believe proposition (2) follows from or is even necessarily related to proposition (1).
Janusauskas v. Fichman, 264 Conn. 796, 810 n. 12 sets out the four elements that must be addressed in the doctor's "disclosure to the patient in order to obtain valid informed consent . . . (1) the nature of the procedure (2) the risks and hazards of the procedure (3) alternatives to the procedure (4) and the anticipated benefits of the procedure."
But of course as in any tort the plaintiff patient has the burden of proving that the defendant doctor failed to satisfy the four elements which would establish valid informed consent. In Logan v. Greenwich Hospital Ass'n., supra, the "traditional" standard of proof to decide whether these elements have been established was rejected; that had been a standard set by the medical profession, 191 Conn. 289. Instead a "lay standard" was adopted whereby a physician is required "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" id., pp. 292-93.
But it's one thing to say that a reasonable patient or lay standard is to be used to decide whether the physician has given the patient what that patient would have found material to make such a decision and quite another thing to say what information should be communicated for example as to "(2) the risks and hazards of the procedure" (second element of tort.)
The Logan case in adopting the "lay standard" relied very heavily on what it described as "the leading case" of Canterbury v. Spence, 464 F.2d 772 (D.C.Ar., 1972), noting eight states now to be followed by Connecticut adopted its position by 1983 when Logan was written, 191 Conn. p. 292, fn. 3. In Canterbury v. Spence, referring to informed consent cases in general the court at 464 F.2d p. 791 said: "In the context of trial of a suit claiming inadequate disclosure of risk information by a physician, the patient has the burden of going forward with evidence tending to establish prima facie the essential elements of the cause of action, and ultimately the burden of proof — the risk of non-persuasion — on those elements. These are the normal impositions on moving litigants, and no reason why they should not attach in nondisclosure cases is apparent."
The court went on to say at pp. 791-92 that although lay testimony can be relied on in such cases to ascertain extent and as to certain matters:
There are obviously important roles for medical testimony in such cases, and some roles which only medical evidence can fill. Experts are ordinarily indispensable to identify and elucidate for the factfinder the risks of therapy and the consequences of leaving existing maladies untreated. They are normally needed on issues as to the cause of any injury or disability suffered by the patient and, where privileges are asserted, as to the existence of any emergency claimed and the nature and seriousness of any impact upon the patient from risk-disclosure. Save for relative infrequent instances where questions of this type are resolvable wholly within the realm of ordinary human knowledge and experience, the need for the expert is clear. (Emphasis by this court.)
(ii)
In Votre v. County Obstetrics Gynecology Group, 113 Conn.App. 509 (2009) at one point the court referred to New Jersey statutory and case law in deciding the issue of whether the claim before it lay in medical malpractice rather than tort or breach of contract all on the way to deciding whether a § 52-190a certificate was necessary. A New Jersey Supreme Court case is cited, Couri v. Gardner, 801 A.2d 1134 (2002) where a complaint was dismissed for lack of the attachment of an affidavit of merit under that state's statute which is of similar import to § 52-190a. The court read that case and discovered New Jersey Appellate Division cases cited in Couri involving informed consent claims. It should be noted that New Jersey's Supreme Court adopted the "lay standard" of Canterbury v. Spence in 1988, Largey v. Rothman, 540 A.2d 504, 505.
In any event the Appellate Division of that state made the following comment which mirrors the previously quoted language in Canterbury v. Spence. In Febus v. Barot, 616 A.2d 933, 935-36 (1992) the court said:
[T]he sufficiency of disclosure under the prudent patient standard requires that the disclosure be viewed through the mind of the patient, not the physician. Implicit in this shift of emphasis is the recognition that expert testimony is no longer required in order to establish the medical community's standard for disclosure and whether a physician failed to meet that standard.
In our view, however, the prudent patient standard does not always dispense entirely with the need for expert medical testimony in an informed consent case. Although, under this doctrine, no medical expert is required to prove that an undisclosed risk would have been material to the patient's consent, it must first be shown that the risk was one of which the physician should have been aware, and that it was recognized within the medical community. (Emphasis by court).
Also see Calabrese v. Trenton State College, 413 A.2d 315 (1980), (N.J.App. Div.); cf. Darwin v. Gooberman, 772 A.2d 399 (N.J.App. Div., 2001) which held an affidavit of merit must be attached to an informed consent claim.
Based on the foregoing case law, and its reasoning, the court concludes as to the informed consent claim a § 52-190a certificate was necessary. None has been filed or any articulated reasons given why, given the nature of the claim here, none was necessary. On the contrary this single-count complaint in its malpractice claim as to surgical procedure cites errors regarding the surgery as it affected the trigeminal nerve. In the next paragraph in addition to surgical negligence it states alternatively there was a failure to obtain informed consent as to the possibility of injury to this nerve. How can the expert testimony necessary to establish negligence as to the surgical procedure as to damage to this nerve be separated out from whether or not the defendant as the surgeon should have known of the alleged risk presented by the procedure, and the consequent harm that might result? Who defines that but an expert and any such information by application of the lay standard should have been told to the patient, yet the predicate for the communication is expert testimony defining the risk.
In any event the complaint is dismissed as to the surgical malpractice claim and the informed consent claim.
As to whether a request to revise should have been filed that point seems moot since the court has determined the informed consent claim required a § 52-190a certificate. But if the court is incorrect on this the surgical negligence aspect of the claim should still be stricken. Votre has ruled a § 52-190a motion to dismiss does not raise an issue of subject matter jurisdiction, such a motion is not a motion to strike with all its 18th century requirements in force to the effect that the demurrer must attack the whole complaint or entire count within the complaint. Why a request to revise is necessary to enforce the legislature's will which is recognized as a desideratum in Votre is not clear to the court. Section 52-190a(c) does use the word "action" but it does not require a complete abandonment of the common usage of the English language to interpret this word as meaning a claim. Also Section 1-2Z of the General Statutes sets forth the "plain meaning rule," but the rule need not be followed where to do so would lead to absurd results. The legislature has spoken, why should a common-law burden of a request to revise preliminary to enforcing its will be placed by the courts on the enforcement of that legislative goal?