Opinion
No. X03 CV05-5008249 S
March 23, 2009
MEMORANDUM OF DECISION
In her amended complaint, dated December 1, 2005, the plaintiff claims that defendant Gibson, an orthopedic surgeon, failed to obtain her informed consent before performing hip replacement surgery on August 8, 2003 and on April 22, 2004.
The amended complaint names Dr. Gibson, Center for Orthopaedics, P.C., and Portland Orthopaedics, Inc. as defendants. Plaintiff's claims against Portland Orthopaedics were withdrawn on May 3, 2008. The complaint alleges — and defendants admit — that Dr. Gibson was employed by Center for Orthopaedics, P.C at all material times. The court will therefore refer to Dr. Gibson as "the defendant."
The matter was tried to the court on November 4 and 5, 2008. The plaintiff did not disclose any expert witness prior to trial, nor did she seek to call an expert at trial. Defendant submits that plaintiff failed to meet her burden of proof because she failed to present expert testimony on the issues of causation and damages. The court agrees with the defendant.
The standard for informed consent in Connecticut was set forth by our Supreme Court in Logan v. Greenwich Hospital Ass'n., 191 Conn. 282, 292 (1983), holding that
[T]he physician's disclosure should include: (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.
Under Connecticut's "lay standard" for evaluating informed consent claims, "[a] physician is obligated 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." Id. at 292, 293.
In order to prevail, the plaintiff did not need expert testimony on the question of whether defendant had a duty to obtain her informed consent prior to performing the two surgeries. Godwin v. Danbury Eye Physicians, 254 Conn. 131, 143-44 (2000); Raybeck v. Danbury Orthopedic Associates. P.C., 72 Conn.App. 359, 373-74 (2002). She was, however, required to present expert testimony to establish the risks of the procedure in question as well as the availability of less risky alternatives to the procedures performed by the defendant.
In Logan v. Greenwich Hospital Ass'n., supra, plaintiff presented an expert witness who testified that there was a reasonable alternative procedure (an open biopsy) to the needle biopsy performed on her. 191 Conn. at 295. This meant that the jury, if it believed this expert, could reasonably find that plaintiff was not made aware of a reasonable alternative. In Levesque v. Bristol Hospital, 286 Conn. 234 (2008), the Court made it even clearer that informed consent plaintiffs must prove through expert testimony "the risks, benefits and hazards" of the medical procedure at issue Id. at 251.
See also, Becea v. Santomauro, No. CV02-0391738 (Fairfield J.D., July 30, 2004) [37 Conn. L. Rptr. 557].
If a plaintiff fails to present such expert testimony, the trier of fact is left to speculate as to two or three of the elements of an informed consent claim. In this case, the court heard no evidence as to the risks of the Margron prosthesis as compared with the risks of available alternatives. There is no basis in the record for a finding that anything which happened to Ms. Patka happened because Dr. Gibson used the Margron product in both surgeries, or that plaintiff would have had a different result if the defendant had used another type of prosthesis.
These would be the second, third and fourth elements of proper informed consent under Logan v. Greenwich Hospital Ass'n., supra, at 292.
One evidentiary issue came up during the trial which the court must address. Plaintiff presented medical records from Dr. Bostrom, the surgeon who performed plaintiff's third hip surgery. These records were offered on the issue of damages. The court admitted the records provisionally, stating specifically that they might be considered on the issue of damages, if plaintiff prevailed on liability. Because the court has determined that plaintiff has not met her burden on liability, these records played no part in this decision.
Trial transcript, p. 207.
Trial transcript, pp. 221-24.
Judgment shall enter in favor of the defendants, David H. Gibson, M.D. and Center for Orthopaedics, P.C., and against the plaintiff, together with costs.
It is so ordered.