Summary
In Landry v. Zborowski, No. TTD CV 07–6000211–S, 2007 WL 4105519, at *3 (Conn.Super.Ct. Oct. 26, 2007), the court observed that “battery claims ordinarily are not medical negligence claims... when such claims rest on facts independent from treatment performance claims, such as when they are based on information communicated before the treatment is provided.
Summary of this case from Gallinari v. KlothOpinion
No. TTD CV 07-6000211-S
October 26, 2007
MEMORANDUM OF DECISION RE DEFENDANTS' MOTION TO DISMISS ON REARGUMENT
By decision dated August 21, 2007 [44 Conn. L. Rptr. 56], the court granted defendants' Motion to Dismiss as to Counts One, Two and Five of the plaintiff's complaint. By decision dated September 19, 2007, the court granted plaintiff's Motion to Reargue as to Count Five only. Reargument was heard on October 15, 2007, and supplemental briefing was permitted. For the following reasons, the court vacates its earlier decision dismissing Court Five, and, instead, denies the Motion to Dismiss as to Count Five.
I
In this case, the plaintiff, Christopher Landry, sues Dr. Robert Zborowski, d/b/a Oral and Maxillofacial Surgery, and staff alleging that Landry was burned during laser hair removal treatments at defendants' office over several years through April 2005, leaving him with permanent injuries. Counts One and Two allege, inter alia, negligence in the treatments, and that defendants "failed to obtain knowing and informed consent to perform the treatments," Count One, para. 8(1), plus that "the treatments performed on the plaintiff were done under the guise of medical treatments, when in fact the defendant and his employees did not have the required medical license to perform such treatments." Count One, para. 8(c). Counts Three and Four allege that the defendants violated the Connecticut Unfair Trade Practice Act by, inter alia, ignoring safety measures for the sake of profits. Count Five, which is the subject of the instant proceeding on reargument, incorporates all of the previous allegations contained in Count One, Two, Three and Four, but it is labeled, "Informed Consent and Battery."
Defendants argues that the court correctly dismissed Counts One and Two because plaintiff failed to append to his complaint an adequately detailed written opinion from a similar health care provider finding medical negligence, as required by General Statutes § 52-190a(a). They argue that the same result should follow as to Count Five because it is, in effect, just another medical negligence claim. Indeed, Count Five does incorporate all of the same allegations as set forth in Counts One and Two. Counts One and Two are labeled "Negligence" and they contain allegations regarding negligent treatment.
Plaintiff argues that Count Five is not just another medical negligence claim; rather, it is an informed consent and battery claim. Indeed, it is clearly labeled "Informed Consent and Battery," and it incorporates the allegations regarding lack of knowing and informed consent and lack of license. Also, plaintiff argues that the claim is based on defendants' misrepresentation that they were licensed to perform the procedure, when they were not. As such, plaintiff argues, Count Five is not a medical negligence claim subject to the written opinion requirement of General Statutes § 52-190a(a). Instead, he argues, it is an informed consent and battery count which is separate and different from the medical negligence counts and not subject to the requirements of General Statutes § 52-190a(a). For the following reasons, the court agrees with the plaintiff.
II
General Statutes § 52-190a(a) provides, in pertinent part, as follows: (a) No civil action . . . shall be filed to recover damages resulting from personal injury . . . whether in tort or in contract, in which it is alleged that such injury resulted from the negligence of a health care provider, unless the attorney or party filing the action . . . 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 . . . 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 health care provider . . . that there appears to be evidence of medical negligence . . . and shall attach a copy of such written opinion . . . to such certificate [required to be included with the complaint].
General Statutes § 52-190a(a) (Emphasis added).
In interpreting this statute, our first resort is to the text. General Statutes § 1-2z. Employing the ordinary rules of the English language, as we must under General Statutes § 1-1(a), it is clear that a plaintiff must attach a written opinion finding evidence of medical negligence in all civil cases against a health care provider, whether it is in tort or contract. Informed consent type claims can sound in either contract or tort, depending on the facts. See, e.g., Logan v. Greenwich Hospital Ass'n., 191 Conn. 282, 288-89, 465 A.2d 294 (1983). A battery, which lies where there is an absence of consent as opposed to lack of informed consent, is an intentional tort. Logan v. Greenwich Hospital Ass'n, supra, 191 Conn. 289; Zabensky v. Lawrence Memorial Hospital, Superior Court, judicial district of New London, No. 545872 (August 5, 1999, Martin, J.); cf. Lambert v. Stovell, 205 Conn. 1, 4-5, 529 A.2d 710 (1987). In this regard, since plaintiff claims lack of informed consent and battery in Count Five against the doctor and his staff, his Count Five involves a civil case against health care providers in tort or contract. As such, the claims come within the purview of the statute. However, there are additional conditions contained in the statute that must be satisfied before it is applicable. As the portions of the statute emphasized above make clear, to be subject to the requirements of the statute, the claims must also concern negligence in the medical care and treatment of the claimant by a health care provider. That this is a requirement is also reflected in the legislative intent: "The purpose of the legislation 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." (Emphasis added.) Bruttomesso v. N.E. Conn. Sexual Assault Crisis Serv., 242 Conn. 1, 15, 698 A.2d 795 (1997). Indeed, in the debates on Public Acts 1986, No. 86-338, it was explained, "[T]his section essentially provides that an attorney, or party, [filing] a negligence action against a health care provider, must satisfy [a] reasonable inquiry standard that there are grounds for [a] good faith belief in the existence of the negligence, and for the bringing of the action." 29 S. Proc., Pt. 10, 1986 Sess., p. 3444, remarks of Senator Richard Johnson. Therefore, before concluding that this statute applies to Court Five, the court must be satisfied that the Count Five is a claim for medical negligence.
It has been held that informed consent and battery claims ordinarily are not medical negligence claims subject to the statute when such claims rest on facts independent from treatment performance claims, such as when they are based on information communicated before the treatment is provided. Such claims are distinct and different from medical negligence claims. See, e.g. Pafka v. Gibson, Superior Court, judicial district of Hartford, No. CV 03-55008249 (August 6, 2007, Langenback, J.) [43 Conn. L. Rptr. 871] and Stevens v. Spector, Superior Court, judicial district of Fairfield, No. CV 06-5001000 (October 25, 2006, Hiller, J.) [42 Conn. L Rptr. 244] both citing Sherwood v. Danbury Hospital, 278 Conn. 163, 181, 896 A.2d 777 (2006) ("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"); see also Bones v. New Britain, No. CV 01-508597 (March 26, 2002, Wiese, J.) [31 Conn. L. Rptr. 613] (Battery claim is an intentional tort not subject to the statute).
This court agrees. Additionally, in most medical negligence cases, a plaintiff must present medical expert testimony to prove the requisite standard of care, deviation therefrom, and causation. (Citation omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005). Unlike medical negligence claims, informed consent claims, and battery claims based on the absence of consent, are tested by lay standards, i.e., whether the physician provided the patient with that information which a reasonable patient would have found material for making a decision on whether to embark upon a contemplated course of therapy. Logan v. Greenwich, supra, 191 Conn. 292-93. In such cases, a medical expert is not required to prove certain aspects. Stevens v. Spector, supra, citing Godwin v. Danbury Eye Physicians Surgeons, P.C., 254 Conn. 131, 137, 757 A.2d 516 (2000); DeGennaro v. Tandon, 89 Conn.App. 183, 190 n. 3, 873 A.2d 191 (2005); Reybeck v. Danbury Orthopedic Assoc., 72 Conn.App. 359, 373, 805 A.2d 130 (2002). It would be incongruous to construe General Statutes § 52-190a(a) to require a plaintiff to obtain, in advance of suit, a written opinion from a medical expert on a point on which medical expert testimony is not required at trial. The rules of statutory construction compel us to avoid such incongruous results. Loughlin v. Loughlin, 280 Conn. 632, 644, 910 A.2d 963 (2006). On the other hand, it has been held that where the claims are based on, or incident to, the same allegations in the medical malpractice count, then the claims should be treated as medical negligence claims subject to the written opinion requirements of the statute. See, e.g. Bruno v. Guelakis, Superior Court, judicial district of New Haven, No. CV 06-5000424 (July 24, 2006, Weise, J.) [41 Conn. L. Rptr. 695].
Defendants concede that the statutory written opinion requirements do not apply to bona fide informed consent and battery claims that are separate and different from the medical negligence claims. They argue that this case does not present such a circumstance. They argue that Count Five is just another medical malpractice claim because it incorporates the same allegations as in the medical negligence counts — Counts One and Two — and because it does not even spell out a cause of action for either informed consent or battery.
Informed consent is lacking unless the physician discloses (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. (Citation omitted.) Alswanger v. Smego, 257 Conn. 58, 67-68, 776 A.2d 444 (2001).
A patient can recover for battery when the physician (1) fails to obtain any consent to the particular treatment, (2) performs a different procedure from the one for which consent has been given, or (3) realizes that the patient does not understand what the procedure entails. (Citation omitted.) Godwin v. Danbury Eye Physicians Surgeons, 254 Conn. 131, 137, 757 A.2d 516 (2000).
The court does not agree. As the plaintiff points out, Count Five incorporates claims of lack of knowing and informed consent, and lack of license. Those allegations are distinct and different from the medical negligence claims. The facts do not involve the adequacy of the performance of the health care professionals in the procedure used or treatment rendered. Whether the facts alleged in Count Five are legally sufficient to spell out a cause of action for informed consent and battery, or whether they contain additional allegations unnecessary to the informed consent and battery claims, are issues that are not appropriately tested in this Motion to Dismiss. Those types of challenges may be tested in a Request to Revise, Practice Book § 10-35 or Motion to Strike, Practice Book § 10-39. In this Motion to Dismiss, the issue is whether the court lacks jurisdiction to hear the case because plaintiff has failed to append an adequate opinion letter to his medical negligence claims as required by the statute. On this Motion to Dismiss, and for the reasons expressed above, the court finds that Count Five contains informed consent and battery type claims, not medical negligence type claims, and, therefore, General Statutes § 52-190a(a) does require attachment of a written opinion of a similar health care provider to the complaint.
III
For all of the foregoing reasons, the court's previous decision dismissing Count Five is vacated, and, following reargument, Motion to Dismiss as to Count Five is denied.