Opinion
No. X03 CV 05 5008249 S
August 6, 2007
MEMORANDUM OF DECISION ON MOTION TO DISMISS
The defendants, David H. Gibson, M.D. and Center for Orthopaedics, P.C., filed a motion to dismiss count one of the plaintiff's amended complaint pursuant to General Statutes § 52-190a(c) for her failure to file with the original complaint a good faith certificate and a written opinion by a similar health care provider that there appears to be evidence of medical negligence on the part of the defendants. The plaintiff argues that the count against these defendants is based upon a lack of informed consent, not medical malpractice, so a good faith certificate and written opinion of a similar healthcare provider are not required.
General Statutes § 52-190a(a) provides, in relevant part, that an attorney for a person filing a complaint alleging injury or death resulting from the negligence of a health care provider shall "make 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 claimant." The complaint shall contain a good faith certificate by the attorney. Public Act 05-275 amended section 52-190a to require the attorney to attach to the certificate a copy of a written opinion of a similar health care provider: "To show the existence of such good faith, the 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 an opinion." Public Act 05-275 also added subsection (c) to section 52-190a, which provides that "[t]he failure to obtain and file the written opinion required by subsection (a) shall be grounds for the dismissal of the action."
The defendants argue that the count against them "undeniably sounds in medical malpractice." (Defendant's memorandum, p. 7.) In support of this conclusion, the defendants claim that counsel for the plaintiff petitioned the court pursuant to General Statutes § 52-190a(b) for a ninety-day extension of the statute of limitations to allow for a reasonable inquiry into a claim of medical malpractice against the defendants in connection with medical care and treatment rendered to the plaintiff. The defendants further argue that the plaintiff's claim is one for malpractice because she will need to present the expert testimony of a physician familiar with the standard of care of orthopedic surgeons that perform hip replacement surgeries to prove that the customary standard of care among orthopedic surgeons was to obtain the patient's informed consent regarding the type of prosthesis that would be utilized prior to the surgeries performed on the plaintiff.
The plaintiff argues that the cause of action asserted in count one of the amended complaint is for failure to inform. In count one, the plaintiff alleges that the defendant Gibson did not discuss choice of prosthesis for use during the initial hip replacement surgery or the hip revision surgery. All of the claims against the defendants are based upon an alleged failure to provide adequate information to the plaintiff before her surgeries with regard to the design and type of prosthesis chosen by defendant Gibson, his experience and track record in using this type of prosthesis, and the existence of other types of prostheses that could be used for each of the surgeries, so as to allow the plaintiff to make an informed choice before both the initial surgery and the later revision surgery. As pointed out by the plaintiff, the amended complaint contains no allegations that the defendants were negligent in recommending surgery, in performing the surgery, or in providing post-operative care.
The court agrees with the rationale of the decision in Stevens v. Spector, Superior Court, judicial district of Fairfield at Bridgeport, Docket No. CV 06 5001000 (October 25, 2006, Hiller, J.) (42 Conn. L. Rptr. 244). In Stevens, the court concluded that the requirements of General Statutes § 52-190a do not apply to claims alleging a negligent failure to obtain informed consent.
"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." 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 1253 (2003), aff'd. 273 Conn. 348, 869 A.2d 1210 (2005).
A claim for failure to obtain informed consent is measured by an objective lay standard. Duffy v. Flagg, 279 Conn. 682, 692, 905 A.2d 15 (2006). "[T]he lay standard for informed consent requires a physician to provide the patient with that information which a reasonable patient would have found material for making a decision whether to embark on a contemplated course of therapy." (Emphasis in original; internal quotation marks omitted.) Id. "[I]nformed consent involves four specific factors: (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.) Id.
The typical basis for claiming a lack of informed consent is a failure to make a sufficient disclosure of the risks or alternatives to a certain medical procedure or treatment. Caron v. Adams, 33 Conn.App. 673, 687, 638 A.2d 1073 (1994). The allegations of count one of the plaintiff's amended complaint are based upon the claim that the defendants failed to adequately provide information related to the risks or alternatives regarding the prosthesis to be used for the plaintiff's hip replacement surgery and hip revision surgery. As the court concluded in Stevens v. Spector, supra, 42 Conn. L. Rptr. 244; actions seeking relief for the failure to obtain informed consent do not require expert testimony, they are judged by a lay standard and they do not require proof of the applicable standard of care through expert testimony. General Statutes § 52-190a explicitly applies only where "there has been negligence in the care or treatment of the claimant." Id. "It is not applicable to claims alleging merely a negligent failure to obtain informed consent." Id.
Finally, the court considers that the fact that the plaintiff in this case filed a petition for the automatic extension of the statute of limitations to allow for a reasonable inquiry into a claim of medical malpractice against the defendants is of no significance with respect to determining the nature of the claims actually asserted by the plaintiff in the original or amended complaint. Just because a plaintiff petitions for an extension to make a reasonable inquiry into a claim of medical malpractice does not mean that the action that is ultimately filed must be considered a claim of medical malpractice, when the allegations clearly show that the plaintiff's claim is for lack of informed consent.
The court finds that because the plaintiff's claims against the defendants in count one of her amended complaint are based upon a lack of informed consent and not medical malpractice, she was not required to attach to her original complaint a good faith certificate or written opinion by a similar health care provider as required by General Statutes § 52-190a. Accordingly, the motion to dismiss is denied.