Opinion
No. (X02) CV 96-0163786-S
October 30, 2003
RULING ON MOTION FOR SUMMARY JUDGMENT
The plaintiff Robin Sherwood-Armour, alleges in her amended complaint that she became infected with the human immunodeficiency virus (HIV) from untested and contaminated blood administered during a transfusion at the defendant hospital on April 19, 1985, when she underwent elective spinal fusion surgery. The amended three-count complaint alleges, respectively, negligence, breach of fiduciary duty, and fraudulent concealment. The gravamen of the amended allegations is that the defendant failed to inform the plaintiff and her physician of the risks associated with a blood transfusion at that time.
In Sherwood v. Danbury Hospital, 252 Conn. 193, 746 A.2d 730 (2000) ( Sherwood I), our Supreme Court reversed the court's decision in this case granting summary judgment to the defendant on statute of limitations grounds. The defendant has again moved for summary judgment, this time primarily on the ground that it has no duty to provide information relating to the process of obtaining informed consent from the patient. Because the existence of a duty is a question of law, see Murillo v. Seymour Ambulance Association, Inc., 264 Conn. 474, 478-79, 823 A.2d 1202 (2003), and summary judgment can enter if "the moving party is entitled to judgment as a matter of law," Practice Book § 17-49, the court can adjudicate this matter on summary judgment.
I
In Petriello v. Kalman, 215 Conn. 377, 576 A.2d 474 (1990), the Supreme Court held that the "defendant hospital had no duty to obtain the plaintiff's informed consent for surgery to be performed by a nonemployee physician or to ensure that such consent was in writing . . ." Id., 385. Rather, "it was the responsibility of the [defendant physician], and his responsibility alone, to obtain the informed consent of his patient, prior to commencing any surgical procedure." Id., 387-88. See also id., 385 ("we have never held that [informed] consent must be given by the patient in writing or that a hospital, whose facilities are utilized by independent physicians, as a kind of surety, must guarantee that informed consent is obtained prior to the commencement of any surgical procedure").
In this case, the defendant argues that the plaintiff's repeated allegations in paragraph 10(b) through (h) of the first count that the defendant "failed to warn, inform and/or advise the Plaintiff's physician and/or the Plaintiff" of various risks associated with blood transfusions and various available alternatives to the procedure fall into the category of an informed consent claim under Petriello. (Complaint count one, ¶ 10(b)-(h).) The plaintiff counters that the issue is more one of a duty to provide crucial information or a failure to warn, which is part of the general duty to exercise reasonable care, and less one of obtaining informed consent prior to surgery.
The court agrees with the defendant's interpretation of the portion of paragraph 10(b) through (h) that alleges that the hospital failed to warn or provide information to the patient directly. While it is true that the hospital, like any actor, has a general duty to exercise reasonable care, on summary judgment the court must evaluate the specific issues set forth in the complaint, which in this case allege a hospital's duty to provide information to the patient. See New Milford Savings Bank v. Roina, 38 Conn. App. 240, 244-45, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). In this situation, the only purpose of providing the information or warning the patient is to assist her in deciding whether to agree to surgery, which is synonymous with the informed consent process. Further, requiring the hospital to warn or provide information directly to a patient under the care of an independent physician poses the same risk of interference with the doctor-patient relationship that informed consent decisions like Petriello seek to avoid. As one court has stated: "[imposing] upon a hospital the duty to inform would be to require a hospital to intervene into the physician/patient relationship [which would be] more disruptive than beneficial to [the] patient." (Internal quotation marks omitted.) Goss v. Oklahoma Blood Institute, 856 P.2d 998, 1007 (Okla.Ct.App. 1990). See also Roberson v. Menorah Medical Center, 588 S.W.2d 134, 137 (Mo.Ct.App. 1979) ("The presentation to the patient of risks involved in prospective surgery cannot but call for some very nice judgments . . . The physician alone is equipped to make the delicate judgments called for.") Thus, the plaintiff has alleged an informed consent claim in paragraph 10(b) through (h).
The court discusses below the significance of paragraphs 10(a) and 10(i) and the allegations in paragraph 10(b) through (h) that the hospital had a duty to provide information to the plaintiff's physician.
There is no factual dispute that the plaintiff's orthopedic surgeon, Dr. Dennis Ogiela, was not an employee of the defendant. Accordingly, in the first instance, under Petriello, it was the duty of Dr. Ogelia rather than the defendant hospital to provide all relevant information to the plaintiff concerning her surgery.
Dr. Ogiela is the defendant in a companion case filed by the plaintiff.
On the other hand, in Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 528 A.2d 805 (1987), the Supreme Court stated that "[t]he delivery of a service, such as a blood transfusion, requires the provider of that service to exercise reasonable care to avoid injury to the consumer of the service." Id., 410. The Court added: "If a plaintiff can show that the defect in the blood could reasonably have been detected or removed, the plaintiff may well be entitled to recover for the supplier's negligent failure to detect or remove the defect." Id. The Supreme Court in Sherwood relied on these statements to conclude that "a hospital may be liable for negligently failing to inform a patient of the risks associated with the blood it has supplied for a transfusion." Sherwood I, supra, 252 Conn. 206. The Sherwood I court added that "there was a genuine issue of material fact with respect to whether the defendant committed an initial wrong upon the plaintiff by failing to inform her that the blood with which she was transfused had not been screened." Id.
An unqualified application of these statements in Sherwood I would require this court to find that the defendant hospital did have a duty to provide information to the plaintiff concerning the blood transfusion as part of the informed consent process. The difficulty with the language from Sherwood I, however, is that it did not address the holding of Petriello that a hospital has no duty to participate in the informed consent process for a patient of a nonemployee physician. Indeed, an examination of the Supreme Court briefs in Sherwood I reveals that neither party even cited Petriello. Nor did the Court cite Petriello in its opinion.
The central question, then, becomes whether to accept an unqualified application of Sherwood I or to construe it in a more limited fashion. The import of the plaintiff's position favoring an unqualified application of Sherwood I is that the Supreme Court overruled Petriello implicitly or limited it to procedures other than blood transfusions. Such action seems most unlikely. "A court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it." Burger Burger, Inc. v. Murren, 202 Conn. 660, 662, 522 A.2d 812 (1987). There are no cogent reasons for overruling or limiting Petriello here. As stated, the policy basis behind decisions like Petriello is the attempt to prevent interference with the doctor-patient relationship. This policy applies fully to blood transfusions. "A physician cannot inform a patient of all of the material risks of a surgical or operative procedure without also informing him of the risks involved with a blood transfusion where a transfusion is a potential part of the procedure." Jones v. Philadelphia College of Osteopathic Medicine, 813 F. Sup. 1125, 1130 (E.D. Pa. 1993). Accord Goss v. Oklahoma Blood Institute, supra, 856 P.2d 1007. Thus, there are no convincing reasons to hold that Petriello does not apply to blood transfusions.
Contrary to the position that the Supreme Court implicitly oven-tiled or limited Petriello, it is possible to reconcile Petriello, on the one hand, and Sherwood I and Zichichi on the other. The key to resolving the conflict between the cases lies in a close review of the Sherwood I opinion. Just prior to stating that a hospital has a duty to inform a patient of the risks associated with a blood transfusion, the Court recited three facts that it labeled "undisputed." Those facts were:
The defendant initially posits that the Court in Sherwood I may have used the failure to inform language because of the possibility that Dr. Ogelia was an employee of the hospital. In such a case, the hospital would be liable for failure to provide informed consent under traditional respondeat superior principles. See Mather v. Griffin Hospital, 207 Conn. 125, 136, 540 A.2d 666 (1988). This construction of Sherwood I is not plausible. It suggests that the Supreme Court merely assumed, without any discussion, the somewhat unlikely fact that the plaintiff's treating orthopedic surgeon was a hospital employee. It also suggests that the Court took the risk that, if Dr. Ogelia were not a hospital employee, its strong language concerning the hospital's duty to provide information concerning its blood supply would become mere surplusage in this case. This result seems most unlikely.
(1) prior to the plaintiff's transfusion, the Food and Drug Administration approved the ELISA test for screening units of blood for HIV antibodies; (2) Kranwinkel [the director of the hospital's blood bank] testified that he assumed that the plaintiff had been administered untested blood; and (3) no one from the hospital blood bank informed the plaintiff, prior to surgery, that the ELISA test was available for screening blood for the presence of HIV antibodies.
Sherwood I, supra, 252 Conn. 206. Of these three facts, the critical one is the third. Clearly, the import of the third fact is that the ELISA test was available to the hospital to test blood at the time that the hospital provided untested blood to the plaintiff. Indeed, the Appellate Court has interpreted Sherwood I in this fashion. In Nieves v. Cirmo, 67 Conn. App. 576, 787 A.2d 650, cert. denied, 259 Conn. 931, 793 A.2d 1085 (2002), the Appellate Court recounted the facts of Sherwood I as follows: "A test for screening blood existed prior to the plaintiff's receiving the transfusion, the defendant's employees assumed that the blood given to the plaintiff had not been tested, and no one associated with the defendant hospital informed the plaintiff that the blood had not been tested and that it could have been. (Emphasis added.) Id., 585.
The defendant concedes that, under these unique facts, it would indeed have a duty to inform the plaintiff that the blood with which she was transfused had not been screened. The defendant describes this duty as "a duty to warn patients and/or physicians that it uses untested blood when tested blood is available." (Emphasis in original.) (Defendant's reply brief, p. 7.) This duty is presumably part of the rule, established in Zichichi, that "[i]f a plaintiff can show that the defect in the blood could easily have been detected or removed, the plaintiff may well be entitled to recover for the supplier's negligent failure to detect or remove the defect." Zichichi, supra, 204 Conn. 410. Although the CT Page 11978 Zichichi Court described the duty in terms of detecting or removing the defect in the blood, it logically follows that, if a hospital did not remove the defect, it would have a duty to warn patients and/or physicians that the defect existed.
It would have been better if the Court in Sherwood I had explicitly stated that a hospital's duty to provide information to a patient arises only under facts similar to those that it recited. But this limitation appears to be what the Court contemplated. Such an interpretation of the Court's opinion is the only meaningful way to reconcile Sherwood I and Petriello.
To be sure, even this interpretation erodes Petriello to some extent because a hospital's duty to inform a patient about the availability of tested blood will interfere with the doctor-patient relationship. The Supreme Court simply failed to address this dilemma. But without this interpretation, the critical language of Sherwood I would have no meaning at all. This court, of course, is bound by the decisions of the Supreme Court, see Jolly, Inc. v. Zoning Board of Appeals, 237 Conn. 184, 195, 676 A.2d 831 (1996), and is not free whimsically to disregard its language as surplusage.
Since the time of the Sherwood I opinion in February 2000, much discovery has taken place. As a result of this discovery, it is now undisputed that, as of April 19, 1985, the defendant did not have the ELISA test available to it and did not knowingly provide the plaintiff with untested blood despite the availability of tested blood. Accordingly, the duty to warn or provide information to the patient described in Sherwood I simply did not arise. The defendant is therefore entitled to summary judgment with respect to paragraph 10(b) through 10(h) insofar as these specifications allege a duty to warn or provide information directly to the patient.
Insofar as these specifications allege a duty of the hospital to provide information to the plaintiff's physician, however, the analysis is different. The Court in Sherwood I did not address this issue. The court can decide this issue on a clean slate.
It is true, on the one hand, that there is no interference with the doctor-patient relationship if the hospital merely provides relevant information concerning the state of its blood supply to an independent doctor with privileges at the hospital. The doctor can screen this information and decide how, if at all, to present it to the patient. On the other hand, there seems little reason to impose this duty on a hospital when the treating physician is perfectly capable of inquiring on his own about the status of a hospital's blood supply. Indeed, the physician has every reason to do so because he has a direct duty to the patient. As an analogy, the defendant points to cases holding that a pharmacist has no duty to notify a physician of the dangerous propensities of a prescription drug. See, e.g., Jones v. Irvin, 602 F. Sup. 399, 402 (S.D.Ill. 1985); Pysz v. Henry's Drug Store, 457 So.2d 561 (Fla.Dist.Ct.App. 1984). In such a situation, "it is the physician who has the duty to know the drug that he is prescribing and to properly monitor the patient." Pysz v. Henry's Drug Store, supra, 457 So.2d 562. The plaintiff offers no authority for a contrary rule that a hospital has a duty to notify a patient's treating physician concerning the status of its blood supply. The court accordingly holds that the defendant had no duty to provide warnings or information to the plaintiff's physician in this case as of April 19, 1985. Summary judgment shall therefore enter for the defendant on the entirety of the allegations in paragraph 10(b) through (h) of the first count. See Practice Book § 17-51 (judgment for part of claim).
In paragraph 10(a) of the first count, the plaintiff alleges that the defendant failed to take measures to determine whether the blood it provided to the plaintiff had been tested for HIV. In paragraph 10(i) of the first count, the plaintiff alleges that the defendant failed to remain educated as to the status of HIV testing in blood. The defendant claims that these allegations ultimately allege a failure of the defendant to provide warnings or information to the plaintiff or her physician and therefore fail for the reasons discussed above. The court, however, accepts the plaintiff's view that these specifications make the different claim that, if the hospital had made greater efforts, it would have been able to prevent the distribution of untested blood in this case. These specifications therefore fall within the holding of Zichichi that "[i]f a plaintiff can show that the defect in the blood could reasonably have been discovered or removed, the plaintiff may well be entitled to recover for the supplier's negligent failure to detect or remove the defect." Zichichi, supra, 204 Conn. 410.
The defendant also argues that there is no genuine factual dispute that the defendant could not have prevented the distribution of untested blood. It is true that the ELISA test was not available to the hospital as of April 19, 1985. The defendant also relies on the testimony of Dr. Elizabeth Donegan, one of the plaintiff's experts, that the defendant "had no way of knowing which [blood] was tested and which was not. I'm sure of that." In other parts of her deposition, however, Dr. Donegan testified that: "The hospital had an obligation through the blood bank to be up to date with the status of their blood supply. Which I don't believe they were. I think that if they had fulfilled their responsibility, they would have known that they had tested and untested blood in their blood bank." It is simply unclear from this testimony if there are factual issues concerning whether the hospital could have prevented the distribution of untested blood. Conceivably, the hospital could have withheld blood in cases of elective surgery, such as the present one, pending imminent further developments. Unfortunately, neither side filed affidavits from experts who might have more directly addressed the issues of standard of care and causation. See Practice Book § 17-45. In this situation, the court must rely on the rule that "[s]ummary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case." (Internal quotation marks omitted.) Doty v. Shawmut Bank, 58 Conn. 427, 431, 755 A.2d 219 (2000). Further, this court must view the evidence in a light most favorable to the nonmoving party. Id. Applying these standards, the court denies the motion for summary judgment as to paragraphs 10(a) and (i) of the first count.
II
In count two of the complaint against the defendant hospital, the plaintiff alleges that the defendant's actions and omissions during and after the surgery breached a special or fiduciary duty to the plaintiff. "[A] fiduciary or confidential relationship is characterized by a unique degree of trust and confidence between the parties, one of whom has superior knowledge, skill or expertise and is under a duty to represent the interests of the other . . ." (Internal quotation marks omitted.) Murphy v. Wakelee, 247 Conn. 396, 400, 721 A.2d 1181 (1998). The attorney-client relationship, for example, imposes a fiduciary duty on the attorney. Beverly Hills Concepts, Inc. v. Schatz Schatz, Ribicoff Kofkin, 247 Conn. 48, 56, 717 A.2d 724 (1998). Breach of the fiduciary relationship generally involves matters such as fraud, self-dealing or conflict of interest. See Murphy v. Wakelee, supra, 247 Conn. 400. While professional negligence implicates a duty of care, breach of fiduciary duty implicates a duty of loyalty and honesty. See Beverly Hills Concepts, Inc. v. Schatz Schatz, Ribicoff Kofkin, supra, 247 Conn. 57.
In this case, the plaintiff has supplied no binding or persuasive authority establishing that a hospital can owe a fiduciary duty to a patient. This case is not one involving matters such as fraud, self-dealing, or conflict of interest. Accordingly, the court grants the defendant's motion for summary judgment on count two.
III
The plaintiff alleges in count three that the defendant fraudulently concealed the plaintiff's cause of action for negligence set forth in count one. The plaintiff seeks the protection of General Statutes § 52-595, which provides: "If any person, liable to an action by another, fraudulently conceals from him the existence of the cause of such action, such cause of action shall be deemed to accrue against such person so liable therefore at the time when the person entitled to sue thereon first discovers its existence."
The plaintiff conceded at oral argument that the fraudulent concealment statute does not create a separate cause of action but rather serves as a basis for a reply or matter in avoidance of the affirmative defense of statute of limitations. See Connell v. Colwell, 214 Conn. 242, 243, 571 A.2d 116 (1990); Practice Book §§ 10-50, 10-57. Accordingly, the court grants the defendant's motion for summary judgment on count three but also grants plaintiff leave to amend her reply and matters in avoidance to allege fraudulent concealment.
IV
The defendant's summary judgment motion is granted with respect to the paragraph 10(b) through (h) of the first count. The court also grants the motion with respect to counts two and three. The court denies the summary judgment motion with regard to paragraph 10(a) and (i).
It is so ordered.
Carl J. Schuman Judge, Superior Court