Opinion
No. CV-09-6005343S
December 31, 2009
RULING ON MOTION TO DISMISS (#101)
The plaintiff Kelly O'Connell (O'Connell) brought this action in one count against the defendants Raymond J. Gambardella, D.M.D. and the Hamden-Shoreline Oral and Maxillofacial Surgery Associates, P.C. (defendants) with a return date of October 20, 2009. On October 30, 2009, the defendants filed a Motion to Dismiss (#101) the complaint "on the ground that the Plaintiff has failed to comply with the requirements of Connecticut General Statutes § 52-190a in failing to append an expert opinion to the complaint as required by the statute." O'Connell opposes the defendants' motion on the ground that her cause of action is not governed by the requirements of General Statutes § 52-190a because it is based solely on Dr. Gambardella's failure to obtain her informed consent.
Appellate case law recognizes a distinction between claims sounding in medical negligence and those alleging a lack of informed consent. "Informed consent requires a physician to provide the patient with the information which a reasonable patient would have found material for making a decision to embark upon a contemplated course of therapy." (Internal quotation marks omitted.) Janusauskas v. Fichman, 264 Conn. 796, 810-11, 826 A.2d 1066 (2003). "A claim against a physician for negligence based on lack of informed consent is separate from a claim based on negligence in medical treatment because it is based on information communicated by the physician to the patient before the procedure or treatment." 61 Am.Jur.2d 267, Physicians, Surgeons, Etc., § 152 (2002), as quoted in Sherwood v. Danbury Hospital, 278 Conn. 163, 181, 896 A.2d 777 (2006). "The distinction between a duty to exercise due care in the performance of requisite medical procedures and a duty to exercise due care in informing a patient of medical risks is not merely linguistic. It reflects, instead, the fundamental difference between the appropriate performance of professional skills and the proper engagement of a patient in decision making about his or her professional care." Pekera v. Purpora, 80 Conn.App. 685, 691, 836 A.2d 1252 (2003), aff'd, 273 Conn. 348, 869 A.2d 1210 (2005). A claim of lack of informed consent is based on the objective adequacy of the information communicated to the patient before a procedure is conducted. See Logan v. Greenwich Hospital Assn., 191 Conn. 282, 292-93, 465 A.2d 294 (1983) (adopting a lay standard to measure the adequacy of a medical provider's explanation to the patient). When a claim of lack of informed consent is made against a single medical provider, expert testimony is not required to establish what information the provider was required to give the patient to permit her to make an informed decision. Godwin v. Danbury Eye Physicians and Surgeons, 254 Conn. 131, 145, 757 A.2d 516 (2000).
In this case, contrary to the defendants' assertions, O'Connell's claims against Dr. Gambardella are premised solely on the information he did and did not provide to her prior to undertaking a surgical placement of a dental implant. Thus, the cause of action that O'Connell has brought alleges only a lack of informed consent. In Pisu v. Comprehensive Dental Health, LLC, Superior Court, Judicial District of New Haven, Docket No. 09-4036711 (Oct. 22, 2009) [ 48 Conn. L. Rptr. 688], Judge Jon Blue engaged in a thoughtful analysis in rejecting the applicability of General Statutes § 52-190a to actions alleging a lack of informed consent. Rather than reinventing the wheel, this court adopts Judge Blue's reasoning. It is noteworthy that a number of other Superior Court decisions have also concluded that the statute's requirements do not apply to informed consent claims such as this one involving only one medical provider and allegations similar to those set forth in footnote 1, supra. See e.g., Ribeiro v. Elfenbein, Superior Court, Judicial District of Danbury, Docket No. CV 09-5006155 (Oct. 16, 2009, Shaban, J.); Caplin v. Laser Center of Northeastern Connecticut, Superior Court, Judicial District of Windham, Docket No. CV 09-5003976 (April 17, 2009, Riley, J.) and cases cited therein; Rodriguez v. Yale New Haven Hospital, Superior Court, Judicial District of New Haven, Docket No. CV 08-5021657 (March 12, 2009, Robinson, J.). Accordingly, the motion to dismiss is denied.
Her allegations, as set forth in ¶ 10 of the complaint, are: a failure to inform her of the following: "that the implant procedure could take more than one sitting," "that she may require a bone grafting procedure to facilitate the anchorage of the implant" "about his experience with the type of implant chosen . . . and his estimated success rate," "that the surgery could take multiple steps and require several months for sufficient osseointegration to occur," ¶ 10(a)(b)(h)(j); a failure to obtain O'Connell's consent "for a bone grafting procedure," "to utilize synthetic bone graft material," and "to allow [another provider] to perform any part of the . . . procedure," ¶ 10(c)(e)(i); a failure to discuss "the different types of bone grafting material that were available to allow her to make an informed choice about what type, if any, was best for her surgery," and "all reasonable alternatives to the dental implant procedure," ¶ 10(d)(g); and, finally, that Dr. Gambardella "improperly assured [her] that she was an excellent candidate for the procedure and had `plenty' of bone to facilitate the anchorage of the implant without need for a bone grafting procedure," ¶ 10(f).
In their reply memorandum dated December 9, 2009, the defendants asserted a new ground for dismissal that was not contained in the original motion (#101), namely that the action is barred by the statute of limitations. The court declines to consider this newly raised ground.