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DOLS v. NEUROSUR. OF CTRL. CONNECTICUT

Connecticut Superior Court Judicial District of Hartford at Hartford
Aug 12, 2010
2010 Ct. Sup. 16186 (Conn. Super. Ct. 2010)

Opinion

No. CV 09 5031277S

August 12, 2010


MEMORANDUM OF DECISION RE DEFENDANTS' MOTIONS TO DISMISS FOR FAILURE TO COMPLY WITH GENERAL STATUTES § 52-190a (##121, 124)


In this action raising claims of lack of informed consent and medical practice, the defendants move to dismiss the case for the plaintiffs' alleged failure to comply with General Statutes § 52-190a, which requires a plaintiff who alleges medical malpractice to attach a good faith certificate to the complaint, accompanied by the opinion of a similar health care provider that indicates there appears to be evidence of medical negligence and includes a "detailed basis" for the opinion. For the reasons set forth below, the motions are denied in part and granted in part.

PROCEDURAL HISTORY

The plaintiffs, Linda Dols and Thomas Dols, filed this action against the defendants, Neurosurgeons of Central Connecticut, P.C. (the practice), Dr. Charles Poletti and Hartford Hospital (the hospital), on July 2, 2009. The six-count complaint alleges the following. Dr. Poletti began treating Linda Dols in November of 2006. On April 4, 2007, Linda Dols underwent surgery to remove an acoustic schwannoma, a benign tumor that was located on her cranial nerve. Dr. Poletti, an agent of both the hospital and the practice, performed the surgery at Hartford Hospital.

The plaintiffs further allege that, prior to the surgery, the defendants failed to advise Linda Dols about the nature and the risks of the procedure. Moreover, the plaintiffs claim that Dr. Poletti lacked the requisite skill and competence to perform the operation, and, negligently performed the operation. As a result, Linda Dols suffered severe left facial nerve damage while her husband, Thomas Dols, has been deprived of his wife's companionship. Additionally, the complaint alleges that the practice and the hospital are vicariously liable for Dr. Poletti's medical negligence.

The plaintiffs attached an opinion letter to their complaint, authored by a board certified surgeon. According to the opinion, "Dr. Poletti took Linda Dols to the operating room at Hartford Hospital on April 4, 2007 to resect an acoustic schwannoma." The author attests that he is familiar with both the surgical management of acoustic schwannoma/neuromas and obtaining consent for such treatment. The author also states that he was informed that Linda Dols was never presented with an informed consent document to sign and was never advised of the risks involved with her surgery. Consequently, the author opined that both Dr. Poletti and the hospital were negligent because they failed to obtain informed consent from Linda Dols.

A schwannoma is defined as a tumor growing from a nerve sheath. See 4 J. Schmidt, Attorneys' Dictionary of Medicine and Word Finder (29th Ed. 1996), p. S-54. A neuroma is a tumor arising from nerve tissue. 3 J. Schmidt, supra, p. N-81.

Dr. Poletti and the practice filed a motion to dismiss on August 20, 2009, on the ground that the plaintiffs failed to comply with General Statutes § 52-190a. That statute requires plaintiffs who allege medical malpractice to attach a good faith certificate to the complaint, accompanied by the opinion of a similar health care provider. The opinion must indicate that there appears to be evidence of medical negligence and include a "detailed basis" for the opinion. See § 52-190a(a). Specifically, Dr. Poletti and the practice argue that the author of the opinion is not a similar health care provider, as defined by the statute. Furthermore, they assert that the opinion is not sufficiently detailed because it only addresses the plaintiffs' informed consent claims, and does not indicate that the defendants were negligent in Linda Dols' treatment. The hospital filed a similar motion to dismiss on August 31, 2009.

This memorandum of decision addresses both of the motions to dismiss.

The plaintiffs filed an objection to the first motion on February 19, 2010, and an objection to the second motion on February 26, 2010. The plaintiffs assert that the author of their opinion qualifies as a similar heath care provider because there is more than one board certification that specializes in the type of surgery performed by Dr. Poletti. In addition, they assert that the letter satisfies the statute because it opines that the defendants were negligent when they failed to obtain informed consent. They argue that this suffices because § 52-190a does not require the opinion to address all of their allegations of medical negligence prior to the completion of full discovery. The parties were heard at short calendar on May 24, 2010.

DISCUSSION

The issue before the court is whether to dismiss the plaintiffs' complaint for failure to comply with § 52-190a, which provides that the failure to obtain a written and signed opinion of a similar health care provider in any "civil action . . . in which it is alleged that . . . injury or death resulted from the negligence of a health care provider" shall be grounds for dismissal of the action. See General Statutes § 52-190a(a), (c). Our appellate courts have established that the action must be dismissed if the opinion letter is not from a similar health care provider or does not give a detailed basis for the opinion. Bennett v. New Milford Hospital, Inc., 117 Conn.App. 535, 543, 979 A.2d 1066, cert. granted, 294 Conn. 916, 983 A.2d 849 (2009). Accordingly, the court must first determine whether the plaintiffs' claims fall within the scope of § 52-190a, and if so, whether they comply with the statute. Votre v. County Obstetrics Gynecology Group, P.C., 113 Conn.App. 569, 571, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).

I. Whether the Plaintiffs' Claims are Governed by § 52-190a

There is no dispute that the plaintiffs' complaint raises two distinct types of claims: (1) allegations that the defendants deviated from the standard of care with regard to Linda Dols' treatment and (2) allegations that they failed to obtain informed consent for the surgical procedure. It is well settled that a claim that a medical provider deviated from the standard of care in the provision of medical care sounds in medical malpractice and is governed by § 52-190a. Id., 585 (claims of medical malpractice require compliance with § 52-190a).

The question, therefore, is whether a claim of failure to obtain informed consent also requires compliance with the statute. The hospital argues that although distinct from claims of "traditional medical malpractice," informed consent claims fall within the scope of § 52-190a because they allege negligence by the physician. This court is not persuaded.

Although there is no appellate authority, the majority of Superior Court opinions addressing the issue have held that a plaintiff need not obtain a written and signed opinion letter pursuant to § 52-190a to bring a lack of informed consent claim. Compare Pisu v. Comprehensive Dental Health, LLC, Superior Court, Judicial District of New Haven, Docket No. CV 09 4036711 (Oct. 22, 2009, Blue, J.) ( 48 Conn. L. Rptr. 688, 690) (allegation of failure to obtain informed consent does not require compliance with § 52-190a), Ribeiro v. Elfenbein, Superior Court, Judicial District of Danbury, Docket No. CV 09 5006155, (Oct. 16, 2009, Shaban, J.) (same), Caplin v. Laser Center of Northeastern Connecticut, Superior Court, Judicial District of Windham, Docket No. CV 09 5003976 (April 17, 2009, Riley, J.) (same); Rodriguez v. Yale New Haven Hospital, Superior Court, Judicial District of New Haven, Docket No. CV 08 5021657 (March 12, 2009, Robinson, J.); with Bruno v. Guelakis, Superior Court, judicial district of New Haven at Meriden, Docket No. CV 06 5000424 (July 24, 2006, Wiese, J.) ( 41 Conn. L. Rptr. 695, 697) (claim for failure to obtain informed consent requires compliance with § 52-190a); Hoog v. Chicarilli, Superior Court, judicial district of New Haven, Docket No. CV 08 5020876 (May 4, 2009, Corradino, J.) [ 47 Conn. L. Rptr. 607] (same). The court agrees with the majority view.

"Enacted originally as part of the Tort Reform Act of 1986 . . . the purpose of § 52-190a is to inhibit a plaintiff from bringing an inadequately investigated cause of action, whether in tort or in contract, claiming negligence by a health care provider . . . The statute originally required a plaintiff to conduct a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the [plaintiff] and to document this inquiry by filing a certificate that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant . . . This certificate requirement . . . serves as an assurance to a defendant that a plaintiff has in fact made a reasonable precomplaint inquiry giving him a good faith belief in the defendant's negligence." Wilcox v. Schwartz, 119 Conn.App. 808, 813-14, 990 A.2d 366, cert. granted, 296 Conn. 908, 993 A.2d 469 (2010).

Moreover, the legislature has determined that, in order to make such inquiry, a plaintiff must obtain the opinion of a professional familiar with the applicable standard of care. Id., 814. Thus § 52-190a is primarily concerned with ensuring that, prior to instituting suit, there is some evidence that the medical provider did not exercise due care in the performance of his professional skills.

Claims of informed consent, on the other hand, do not fall within the scope of § 52-190a because they do not allege medical malpractice. "[T]he relevant considerations in determining whether a claim sounds in medical malpractice are whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical professional-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment." (Internal quotation marks omitted.) Votre v. County Obstetrics Gynecology Group, P.C., supra, 113 Conn.App. 576.

Claims for lack of informed consent do not sound in medical malpractice because they are concerned with the information provided to the patient, and not diagnosis or treatment. For instance, in order to obtain valid informed consent, a medical provider must inform the patient of "(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." (Internal quotation marks omitted.) Duffy v. Flagg, 279 Conn. 682, 692, 905 A.2d 15 (2006). Thus, a patient may still have a valid informed consent claim in the absence of any negligence in her actual treatment. "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 . . . 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." (Citations omitted; internal quotation marks omitted.) Sherwood v. Danbury Hospital, 278 Conn. 163, 180-81, 896 A.2d 777 (2006).

Additionally, because such claims are not concerned with the negligent provision of medical treatment, expert opinion is not required at trial. "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 . . . [Accordingly], we adopted a ` lay' standard and stated that under the doctrine of informed consent, 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." (Citations omitted; emphasis added; internal quotation marks omitted.) Duffy v. Flagg, supra, 279 Conn. 691.

Under the doctrine of informed consent, the ultimate issue to be determined at trial is whether the medical practitioner disclosed all of the information that would have had some bearing upon the patient's decision. Id., 692. Therefore, it would be illogical to require a medical professional's opinion as a threshold matter when, ultimately, that determination must be made under the "lay standard" articulated above. See, e.g., Logan v. Greenwich Hospital Ass'n., 191 Conn. 282, 290, 465 A.2d 294 (1983) (rejecting "[t]he incongruity of making the medical profession the sole arbiter of what information was necessary for an informed decision to be made by a patient concerning his own physical well-being"). Accordingly, a claim for the failure to obtain informed consent does not require compliance with § 52-190a.

The hospital argues that the plaintiffs cannot allege in good faith that it did not obtain informed consent because Linda Dols signed a treatment authorization. As evidence, they point to language in that document indicating that she was aware of the risks and consequences of her treatment. The hospital's arguments, however, go to whether the plaintiffs may prove their case, and are beyond the scope of this motion to dismiss.

II. Whether the Plaintiff's Medical Malpractice Claims Comply with § 52-190a

The next question is whether the plaintiffs satisfied the requirements of § 52-190a with respect to their allegations of medical malpractice. The court finds that the opinion letter does not comply with the statute because it fails to provide a "detailed basis" for any belief that there is evidence of malpractice. In fact, the opinion does not mention or discuss any of the plaintiff's malpractice claims. "The requirement [of] the written opinion . . . was introduced into the statute by amendment in 2005 . . . Section 52-190a(a) now requires claimants, in order to show the existence of . . . good faith, to obtain a written and signed opinion of a similar health care provider . . . that there appears to be evidence of medical negligence and [include] a detailed basis for the formation of such opinion." (Citations omitted; internal quotation marks omitted.) Wilcox v. Schwartz, supra, 119 Conn.App. 814.

Following the 2005 amendment to § 52-190a, there was a lack of consensus within the Superior Court regarding the level of detail necessary for the opinion. Some justices required minimal detail, while others set a higher bar. The Appellate Court has recently provided some guidance and clarified that, while the opinion letter does not have to address causation, at a minimum, it "must indicate that there appears to be evidence of a breach of the standard of care." Id., 815. Moreover, contrary to the plaintiffs' position, the opinion must specifically address the allegations in the complaint. The court explained that "[t]he ultimate purpose of [the written opinion] requirement is to demonstrate the existence of the claimant's good faith in bringing the complaint by having a witness . . . state in written form that there appears to be evidence of a breach of the applicable standard of care. So long as the good faith opinion sufficiently addresses the allegations of negligence pleaded in the complaint . . . the basis of the opinion is detailed enough to satisfy the statute and the statute's purpose." (Emphasis added.) Id., 816.

Compare, e.g., Narowski v. Reilly, Superior Court, judicial district of Ansonia-Milford, Docket No. CV 08 4010517 (December 30, 2008, Tyma, J.) ( 46 Conn. L. Rptr. 866) ("`The requirement that a good faith certificate be supported by a written opinion of a similar health care provider does not amount to supplying the defendants or their attorneys with every single detail that one would normally obtain after conducting discovery'") with Doe v. Priority Care, Inc., 50 Conn.Sup. 385, 396, 933 A.2d 755 (2007) (opinion stating that defendants "deviated from the applicable standard of care causing injury to the plaintiff" was not sufficiently detailed).

In this case, the letter is deficient even under the most liberal standards. The complaint alleges in part that the defendants were negligent because they failed to properly care for, treat, diagnose, monitor and supervise Linda Dols. The complaint also alleges that the hospital and practice group were negligent because they failed to hire competent practitioners and failed to establish appropriate treatment standards. Nevertheless, the letter fails to provide any opinion regarding medical malpractice separate and distinct from the claim regarding a lack of informed consent. In fact, the opinion's only reference to treatment is that "Dr. Poletti took Linda Dols to the operating room at Hartford Hospital on April 4, 2007 to resect an acoustic schwannoma." Without more, the opinion does not adequately address the allegations pleaded in the complaint and does not satisfy the requisites of § 52-190a. Consequently, the court does not have to address the issue of whether the opinion letter is authored by a similar health care provider.

As a procedural matter, the court notes that the plaintiffs have combined their informed consent claims in the same counts as their allegations of medical malpractice. Technically, there is no procedural mechanism to dismiss paragraphs contained within a count. In this case, the better practice would have been for the defendants to file a request to revise the complaint to force the plaintiffs to allege the informed consent claims separately. However, given the uncertainty in the case law regarding the requirements of § 52-190a, and the court's conclusion that the medical malpractice claims cannot be maintained because the plaintiffs failed to comply with § 52-190a, the court orders the plaintiffs to amend their complaint consistent with this opinion, and delete all allegations of medical malpractice.

CONCLUSION

For the foregoing reasons, the court grants in part and denies in part the defendants' motions to dismiss for failure to comply with § 52-190a.


Summaries of

DOLS v. NEUROSUR. OF CTRL. CONNECTICUT

Connecticut Superior Court Judicial District of Hartford at Hartford
Aug 12, 2010
2010 Ct. Sup. 16186 (Conn. Super. Ct. 2010)
Case details for

DOLS v. NEUROSUR. OF CTRL. CONNECTICUT

Case Details

Full title:LINDA DOLS ET AL. v. NEUROSURGEONS OF CENTRAL CONNECTICUT, P.C. ET AL

Court:Connecticut Superior Court Judicial District of Hartford at Hartford

Date published: Aug 12, 2010

Citations

2010 Ct. Sup. 16186 (Conn. Super. Ct. 2010)