Opinion
No. CV 06 500 10 00 S
October 25, 2006
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The issue before the court is whether to grant the defendant's motion to dismiss the plaintiff's amended complaint on the grounds that the plaintiff did not comply with the requirements concerning the filing of a good faith certificate in a medical malpractice action. The defendant claims that the plaintiff's complaint was not submitted with a written opinion of a similar healthcare provider stating that there appeared to be evidence of medical malpractice.
On April 24, 2006, the plaintiff, Tyrone Stevens, filed an amended one-count complaint, alleging that the LASIK procedure performed by the defendant, doctor Scott M. Spector, was done without his informed consent. The plaintiff claims that he was not adequately advised of the relative probabilities of the development of corneal ectasia as a result of the operation.
On May 31, 2006, the defendant filed a motion to dismiss the amended complaint, arguing that it was not in compliance with General Statutes § 52-190a(a), as amended by No. 05-275, § 2(a) of the 2005 Public Acts. The defendant maintains that the plaintiff is alleging medical malpractice on the grounds that the defendant failed to obtain the plaintiff's informed consent, and that, as a result, the requirements of § 52-190a are implicated. The plaintiff argues that his amended complaint does not allege medical negligence, but that it alleges that the defendant failed to obtain informed consent, a distinct cause of action that should not require compliance with § 52-190a.
General Statutes § 52-190a(a), as amended, provides that "[n]o civil action . . . shall be filed to recover damages resulting from person injury . . . whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a healthcare provider, unless the attorney has made 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 certificate of the attorney . . . that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant . . . To show the existence of such good faith, the claimant or the claimant's attorney . . . shall obtain a written and signed opinion of a similar healthcare provider . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion." (Emphasis added.)
A motion to dismiss is the proper procedural vehicle in this case, under § 52-190a(c), which provides that "[t]he failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action." "A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court . . . A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction." (Internal quotation marks omitted.) Cox v. Aiken, 278 Conn. 204, 210-11, 897 A.2d 71 (2006). "When a . . . court decides a jurisdictional question raised by a pretrial motion to dismiss, it must consider the allegations of the complaint in their most favorable light . . . In this regard, a court must take the facts to be those alleged in the complaint, including those facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader." (Internal quotation marks omitted.) Id., 211.
The defendant argues that a claim asserting a lack of informed consent is considered medical malpractice under General Statutes § 52-584, which provides the statute of limitations period for medical malpractice claims. The defendant argues that this, in turn, implicates the requirements of § 52-190a. Also, the defendant contends that the fact that the plaintiff is basing his claim on an alleged failure to disclose the probabilities of different outcomes of the LASIK procedure indicates a need for expert testimony, which triggers the requirements in § 52-190a. The court disagrees.
The defendant cites Lambert v. Stovell, 205 Conn. 1, 5, 529 A.2d 710 (1987), for the proposition that a case alleging a lack of informed consent falls under the category of medical malpractice, under § 52-584, the statute describing the statute of limitations in a medical malpractice action. The defendant argues that it follows from that proposition that § 52-190a should also apply here, because it applies to all medical malpractice cases. The context in which informed consent arises in this case is, however, different. In Lambert, the issue concerned the applicable statute of limitations in a case concerning the difference between a tortious battery and medical negligence. Id., 3. The plaintiff in that case was making an effort to utilize the longer limitations period for battery cases rather than the shorter limitations period for medical negligence cases. Id., 4. Although the court may have used language to the effect that an informed consent action was a form of malpractice action, the statute at issue in this case, § 52-190a, is different from § 52-584 in that § 52-190a does not use the general term "malpractice" when describing when good faith certificates and written second opinions of similar healthcare providers are required. Instead, § 52-190a uses the words "negligence in the care or treatment" of the claimant to prompt these requirements.
The defendant has also argued that the plaintiff will need to present expert testimony, which would make this a malpractice suit, and that such testimony triggers the provisions of § 52-190a that require the good faith certificate and the written opinion from a similar healthcare provider. Malpractice and failure to obtain informed consent are, however, distinct and different grounds for claims against physicians. See Sherwood v. Danbury Hospital, 278 Conn. 163, 180-81, 896 A.2d 777 (2006). General Statutes § 52-184c, in essence, codifies the common-law definition of medical malpractice, providing that in a malpractice claim against a healthcare provider, the plaintiff "shall have the burden of proving . . . that the alleged actions of the healthcare provider represented a breach of the prevailing professional standard of care for that healthcare provider." "Generally, the plaintiff must present expert testimony in support of a medical malpractice claim because the requirements for proper medical diagnosis and treatment are not within the common knowledge of laypersons." (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 656, 904 A.2d 149 (2006).
By contrast, a claim for failure to obtain informed consent is judged by a lay standard. Duffy v. Flagg, 279 Conn. 682, 692, 905 A.2d 15 (2006). "[U]nder 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 . . . [The court's] standard of disclosure for informed consent in this state is an objective standard that does not vary from patient to patient based on what the patient asks or what the patient would do with the information if it were disclosed . . . [T]he lay standard of 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 upon a contemplated course of therapy." (Emphasis in original, citations omitted, internal quotation marks omitted.) Id., 691-92. "[T]he cases on informed consent require something less than a full disclosure of all information which may have some bearing, however remote, upon the patient's decision." (Internal quotation marks omitted.) Id., 692.
Additionally, in an action for failure to obtain informed consent in which only one physician treats the patient, as is the case here, "it is not necessary to establish through expert testimony that the physician had a duty to inform the patient prior to a surgical procedure." Godwin v. Danbury Eye Physicians Surgeons, P.C., 254 Conn. 131, 145, 757 A.2d 516 (2000); Reybeck v. Danbury Orthopedic Associates, P.C., 72 Conn.App. 359, 373, 805 A.2d 130 (2002). Thus, for claims alleging a negligent failure to obtain informed consent expert testimony is not required, either for establishing that the defendant had a duty to inform or for making the determination that such a duty was met. See DeGennaro v. Tandon, 89 Conn.App. 183, 190 n. 3, 873 A.2d 191 (2005).
As to the lay standard of informed consent, there are "four elements that must be addressed in the physician's disclosure to the patient in order to obtain valid informed consent. [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.) Duffy v. Flagg, supra, 279 Conn. 692. "Thus, [u]nlike the traditional action of negligence, a claim for lack of informed consent focuses not on the level of skill exercised in the performance of the procedure itself but on the adequacy of the explanation given by the physician in obtaining the patient's consent." (Internal quotation marks omitted.) Sherwood v. Danbury Hospital, supra, 278 Conn. 180. "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 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." (Emphasis added, internal quotation marks omitted.) Sherwood v. Danbury Hospital, supra, 278 Conn. 181 (quoting 61 Am.Jur.2d 267, Physicians, Surgeons, Etc., § 152 (2002)). The claim alleging the defendant's failure to obtain informed consent in the present case directly points to the defendant's failure to fulfill the second requirement, to disclose the risks and hazards of the procedure. The plaintiff does not claim that he was injured due to the "negligence in the care or treatment" of the plaintiff, as required by § 52-190a. Rather, he has amended his complaint to allege only that the LASIK procedure was performed without his informed consent, before the "care or treatment" occurred. The express language of the statute recognizes the distinction between these causes of action. The plaintiff is not bringing a claim for negligence in his medical care or treatment. He is, rather, bringing a claim that directly alleges a negligent failure to obtain informed consent. Put simply, this is a negligence claim, but it is not a medical malpractice claim.
The court concludes, therefore, that actions seeking relief for a physician's failure to obtain informed consent do not require expert testimony, that such actions are judged by a lay standard, and that they do not require proof of the applicable standard of care through expert testimony. The court finds that § 52-190a, as amended, is explicitly applicable when "there has been negligence in the care or treatment of the claimant." (Emphasis added.) It is not applicable to claims alleging merely a negligent failure to obtain informed consent. As such, the claims in this action do not require either the good faith certificate or the written opinion of a similar healthcare provider that are required in negligence cases under § 52-190a. The defendant's motion to dismiss is denied.