Opinion
No. X10 NNH-CV-04-4016894S CLD
January 5, 2006
MEMORANDUM OF DECISION ON THE DEFENDANTS' MOTIONS TO STRIKE
The defendants have once again filed motions to strike the assault and battery counts of the plaintiff's complaint. The defendants Ronald H. Delfini and Ronald H. Delfini, DDS, P.C. filed a motion to strike count 6 with a memorandum attached. The plaintiff filed a memorandum in opposition. At the time that these were heard by the court, the defendants Dr. Fusi and Connecticut Center for Plastic Surgery, who had filed an answer and special defenses, sought to orally withdraw them on the record and offer an oral motion to strike as to count 3, which is the assault and battery count addressed to them. In the court's discretion they were permitted to do so over the plaintiff's objection.
The motions to strike address the plaintiff's third amended complaint, dated November 21, 2005. The plaintiff's original complaint contained counts claiming assault and battery as to these defendants, which counts were stricken by the court (Dooley, J.) pursuant to a memorandum of decision dated July 28, 2005. Thereafter the plaintiff amended those counts, and defendants again filed motions to strike with accompanying memoranda of law. The plaintiff then made a further amendment to her complaint, to its present state before the court.
The legal standard governing a motion to strike is well established. "A motion to strike challenges the legal sufficiency of a pleading, and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) Fort Trumbull Conservancy, LLC v. Alves, 262 Conn. 480, 498, 815 A.2d 1188 (2003). It tests whether the complaint states a claim on which relief can be granted. Vacco v. Microsoft Corp., 260 Conn. 59, 65, 793 A.2d 1048 (2002); Practice Book § 10-39. The trial court's role is to examine the complaint and construe it in favor of the pleader. Suffield Development Associates Ltd. Partnership v. National Loan Investors, L.P., 260 Conn. 766, 772, 802 A.2d 44 (2002). Specifically, the court must "assume the truth of both the specific factual allegations and any facts fairly provable thereunder" and "read the allegations broadly, rather than narrowly." Craig v. Driscoll, 262 Conn. 312, 321, 813 A.2d 1003 (2003). The requirement of favorable construction does not extend, however, to legal opinions or conclusions stated in the complaint, but only to factual allegations and the facts "necessarily implied and fairly provable under the allegations." (Internal quotation marks omitted.) Forbes v. Ballaro, 31 Conn.App. 235, 239, 624 A.2d 389 (1993). The motion is to be tested by the allegations of the pleading, which allegations cannot be enlarged by the assumption of any facts not therein alleged. Alarm Applications Co. v. Simsbury Volunteer Fire Co., 179 Conn. 541, 549-50, 427 A.2d 822 (1980). The motion is properly granted if the complaint alleges mere conclusions of law unsupported by the facts alleged. Fidelity Bank v. Krenisky, 72 Conn.App. 700, 720, 807 A.2d 968, cert. denied, 262 Conn. 915, 811 A.2d 1291 (2002); Donar v. King Associates, Inc., 67 Conn.App. 346, 349, 786 A.2d 1256 (2001). "If any facts provable under the express and implied allegations in the plaintiff's complaint support a cause of action . . . the complaint is not vulnerable to a motion to strike." Bouchard v. People's Bank, 219 Conn. 465, 471, 594 A.2d 1 (1991).
The plaintiff's complaint is in six counts, alleging professional negligence, lack of informed consent, and battery against the defendants with regard to a series of procedures performed on the plaintiff's mouth and jaw. The defendants, by the present motion, challenge the plaintiff's battery claims only, which are set forth at Count 3 (against the defendants Stephano Fusi, M.D. and Connecticut Center for Plastic Surgery) and 6 (against the defendants Ronald H. Delfini, DDS and Ronald Delfini, DDS, P.C.). Therein, the plaintiff alleges all those facts which comprise her claim for lack of informed consent (which is set forth in Counts 2 and 5) and then adds the following additional allegation: "Defendants . . . assaulted and battered the plaintiff, where they realized or should have realized that the plaintiff did not understand that the above-described procedures as performed by the defendants entailed an unreasonably high risk of failure and a high degree of morbidity."
The defendants argue that the plaintiff's battery counts should be stricken because the plaintiff has failed to cure the defects that led to those counts being stricken previously. The defendants further contend that those counts, despite being couched as battery claims, constitute nothing more than additional claims for lack of informed consent and as such should be stricken.
The law in Connecticut regarding battery in the context of the doctor-patient relationship was set out by our Supreme Court in the seminal case of Logan v. Greenwich Hospital, 191 Conn. 282, 465 A.2d 294 (1983).
The theory of battery as a basis for recovery against a physician has generally been limited to situations where he fails to obtain any consent to the particular treatment or performs a different procedure from the one for which consent has been given, or where he realizes that the patient does not understand what the operation entails. Cobbs v. Grant, 8 Cal.3d 229, 240, 502 P.2d 1 (1972); 4 Restatement (Second), Torts 892B, comment i; note, "Informed Dissent: A New Corollary to the Informed Consent Doctrine?" 57 Chi.-Kent L. Rev. 1119, 1122 n. 18 (1981). The failure to make a sufficient disclosure, which is ordinarily the basis for claiming lack of informed consent, has been regarded by most courts as presenting the question, not whether there was an effective consent which would preclude an action for battery, but whether the physician had fulfilled his duty of informing the patient under the appropriate standard. Cobbs v. Grant, supra, 241; Natanson v. Kline, 186 Kan. 393, 402, 350 P.2d 1093, reh. denied, 187 Kan. 186, 354 P.2d 670 (1960); Wilkinson v. Vesey, 110 R.I. 606, 621, 295 A.2d 676 (1972); 4 Restatement (Second), Torts 892B, comment i.
Logan v. Greenwich Hospital Association, supra, 191 Conn. 282.
It is the plaintiff's position that Logan allows for a claim of assault and battery where the allegation asserts that the doctor has so inadequately explained the risks of a given procedure or operation that the doctor realized or should have realized that the plaintiff did not understand the risks described. Seizing upon the language of Logan, the plaintiff argues that the risks of a procedure are so inextricably wound up in what the procedure is that it is a part of the explanation of, and the patient's understanding of, what the procedure "entails."
The plaintiff's argument is plausible only if the word "entail" is considered in a vacuum, isolated from the Logan court's reasoning and authorities. In Logan, the court was confronted with the issue of whether claims involving the sufficiency of disclosure should be treated as an intentional tort, i.e., battery, or as negligence claim, i.e., lack of informed consent. In the passage quoted above, the Logan court aligned itself with those jurisdictions that treat the sufficiency of disclosure as an issue not of whether sufficient consent has been given, but rather of "whether the physician had fulfilled his duty of informing the patient under the appropriate standard." Id. 289. The court made a bright-line doctrinal distinction between battery, which is predicated upon an unwanted invasion of the sanctity of one's body, and informed consent claims, which concern the sufficiency of disclosure to a procedure otherwise consented to. In light of this distinction, it simply does not make sense to construe the word "entail" as encompassing claims of insufficient disclosure, whether of risks or otherwise, where the patient has consented to the procedure itself. Instead, it is apparent that the word "entail" as used in Logan contemplates situations where the mechanics of the procedure itself, or some part thereof, are not sufficiently disclosed.
Some jurisdictions continue to hold that informed consent claims sound in battery, rather than negligence. See e.g., Valles v. Albert Einstein Medical Center, 569 Pa. 542, 805 A.2d 1232 (Pa. 2002).
The court in Logan quoted Schmeltz v. Tracy, 119 Conn. 492, 495-96 (1935), which in turn quoted then-Judge Cardozo in Schloendorff v. New York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92 (1914), overruled on other grounds, Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3 (1957), for the proposition that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body; a surgeon who performs an operation without his patient's consent commits an assault, for which he is liable in damages."
This is confirmed by an examination of the authorities upon which Logan relied, one of which was the decision of the California Supreme Court in Cobbs v. Grant, 8 Cal.3d 229, 502 P.2d 1 (1972). Significantly for present purposes, the court in that case stated:
Where a doctor obtains consent of the patient to perform one type of treatment and subsequently performs a substantially different treatment for which consent was not obtained, there is a clear case of battery . . . However, when an undisclosed potential complication results, the occurrence of which was not an integral part of the treatment procedure but merely a known risk, the courts are divided on the issue of whether this should be deemed a battery or negligence.
(Emphasis added.) Id., 239.
The court went on to follow those courts that hold that the failure to disclose a known risk to be a matter of negligence (i.e., informed consent), rather than battery. See id. at 240.
Tellingly, the court in Logan also cited to the Restatement (Second) of Torts, § 892A, comment i, which states the following regarding the doctrine of informed consent:
Some courts have taken this principle and applied it also to the case in which the surgeon obtains consent to an operation without disclosing all of the significant risks that may be involved in the operation. Under a broad application of this sort, an action of battery would lie for failure to disclose the risks regardless of whether the operation was performed negligently or not. A substantial majority of the courts correctly decline to treat this problem in terms of lack of effective consent, but instead treat the question of what risks should be spelled out to the patient in terms of professional negligence and the application of a professional standard of conduct.
(Emphasis added.) 4 Restatement (Second) of Torts, § 892A, comment i.
It is worth noting that modern appellate decisions from other jurisdictions have likewise held that the failure to disclose a risk is a matter of informed consent, rather than one of battery. See Christman v. Davis, 2005 Vt. 119 (2005) (Noting that "generally, battery occurs only when a physician performs an operation for which there was no consent. If the patient does provide consent for the procedure employed, but receives inadequate disclosures of the alternatives and foreseeable risks and benefits of the alternatives, liability must be based on lack of informed consent, and a claim of medical malpractice in failing to provide the necessary disclosures"); Duncan v. Scottsdale Medical Imaging LTD., 205 Ariz. 306, 70 P.3d 435 (Ariz. 2003) (Same under Arizona law); Brzoska v. Olson, 668 A.2d 1355, 1366 (Del. 1995) (Same under Delaware law) Lackey v. Bressler, 86 N.C.App. 486, 358 S.E.2d 560 (N.C.Ct.App. 1987) (Same under North Carolina law).
In light of the foregoing, the court rejects the plaintiff's argument that the risks of a procedure are part of what the procedure "entails" under Logan. The plaintiff's argument, if accepted, would forever blur the line between a claim grounded in lack of informed consent and a claim for medical battery. Taken to its logical conclusion, the result urged by the plaintiff would permit all issues of disclosure to be shoehorned into a battery claim merely by alleging that they implicate what the procedure "entails," thereby eviscerating the holding of Logan that claims concerning the sufficiency of disclosure must be made as informed consent claims, rather than battery claims. Moreover, the authorities upon which Logan relied, as well as the decisions of other jurisdictions cited above, clearly indicate that claims pertaining to the disclosure of risks must be made under the guise of informed consent. Because the plaintiff's allegations all relate to issues of disclosure of risks and complications, rather than to the procedures themselves, the plaintiff has not stated a cognizable claim for battery under Logan.
Further, the plaintiff's argument is at odds with well-established doctrinal principles governing the law of consent. In analyzing whether consent constitutes an affirmative defense to battery, "the focus of the consent is on the conduct or procedure to be performed, not its consequences, as the plaintiff suggests." Godwin v. Danbury Eye Physicians Surgeons, P.C., 254 Conn. 131, 138, 757 A.2d 516 (2000); see also 4 Restatement (Second) Torts, § 892A, comment e ("The consent must be to the actor's conduct or to substantially the same conduct, rather than to the invasion that results from it"); id., § 892B, comment c ("As stated in § 892A, the consent that is legally important is consent to the conduct of the actor or to substantially the same conduct, rather than consent to its consequences").
In the present case, counts three and six, even when read in the light most favorable to the plaintiff, clearly focus not on the conduct or procedures that were performed, but rather upon the (unfavorable) results. Nowhere has it been alleged that the plaintiff did not consent to the procedures themselves. Nor has it been alleged that some aspect of the procedures was not disclosed or explained. Instead, it is alleged (albeit implicitly) that the consent to the procedures was effectively vitiated by the failure of the defendants to disclose the risks of complications and morbidity. These allegations plainly relate to the results, rather than the nature, of the procedures performed. Therefore, counts three and six do not state a legally sufficient cause of action for battery. See Godwin v. Danbury Eye Physicians Surgeons, P.C., supra, 254 Conn. at 138.
For the foregoing reasons, the defendants' motion to strike the third and sixth counts of the plaintiff's complaint is granted.