Opinion
No. CV094036711
October 22, 2009
MEMORANDUM OF DECISION RE MOTION TO DISMISS (No. 102)
I. INTRODUCTION.
The question presented by the motion to dismiss now before the court is whether actions alleging lack of informed consent are actions alleging "the negligence of a health care provider" within the meaning of Conn. Gen. Stat. § 52-190a(a) and are thus subject to that statute's requirement of a certificate of good faith. For the reasons set forth below, the answer to this question is No.
II. HISTORY OF THE CASE.
Settimio Pisu, the named plaintiff, alleges that in 2007 he was a patient of co-defendant Joseph Tagliarini, a dentist and an employee of the named defendant, Comprehensive Dental Health, LLC. (The defendants will be jointly referred to as "Tagliarini.") Pisu's complaint further alleges that, "before replacing one of Pisu's teeth with a crown . . . Tagliarini failed to explain . . . that one material risk of the procedure was that . . . Tagliarini could perforate the root of the tooth." Pisu claims that such a perforation occurred, causing various injuries.
Pisu and his civil union partner, Jason Smith, subsequently commenced this action against Tagliarini. The complaint consists of two counts. Count I, asserted by Pisu, alleges lack of informed consent. Count II, asserted by Smith, alleges loss of consortium. The complaint does not contain a certificate of good faith.
On May 29, 2009, Tagliarini filed the motion to dismiss now before the court. The basis of the motion is the asserted failure of the complaint to comply with the requirements of § 52-190a. The motion was argued on October 19, 2009. Supplemental materials were filed by the parties on October 21, 2009.
III. DISCUSSION
Conn. Gen. Stat. § 52-190a(a) provides, in relevant part, that:
No civil action . . . shall be filed to recover damages resulting from personal injury . . . 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. The complaint . . . shall contain a certificate of the attorney or party filing the action . . . 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 health care provider, as defined in section 52-184c . . . that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion . . . The claimant or the claimant's attorney . . . shall retain the original written opinion and shall attach a copy of such written opinion . . . to such certificate.
The question presented by the motion now before the court is whether a claim of lack of informed consent is an allegation of "the negligence of a health care provider" within the meaning of this statute.
Our Supreme Court has recently described the history of the statute: Section 52-190a originally was enacted as part of the Tort Reform Act of 1986. See Public Acts 1986, No. 86-338, § 12. The original version of the statute required the plaintiff in any medical malpractice action 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 file a certificate "that such reasonable grounds exist for an action against each named defendant." General Statutes (Rev, to 1987) § 52-190a(a). The original statute did not require the plaintiff to obtain the written opinion of a similar health care provider that there appeared to be evidence of medical negligence, but permitted the plaintiff to rely on such an opinion to support his good faith belief . . . [T]he purpose of the original version of § 52-190a was to prevent frivolous medical malpractice actions . . .
In 2005, the legislature amended § 52-190a(a) to include a provision requiring the plaintiff in a medical malpractice action to obtain the written opinion of a similar health care provider that "there appears to be evidence of medical negligence" and to attach the opinion to the certificate of good faith to be filed with the complaint. See Public Acts 2005, No. 05-275, § 2(a) ( P.A. 05-275). In addition, the amendment provided that the failure to file the written opinion would be grounds for dismissal of the complaint. See P.A. 05-275, § 2(c), now codified as General Statutes § 52-180a(c). The legislative history of this amendment indicates that it was intended to address the problem that some attorneys, either intentionally or innocently, were misrepresenting in the certificate of good faith the information that they had obtained from experts . . .
With this background in mind, we conclude that the phrase "medical negligence," as used in § 52-190a(a), means breach of the standard of care and was not intended to encompass all of the elements of a cause of action for negligence.
Dias v. Grady, 292 Conn. 350, 357-59, 972 A.2d 715 (2009).
Dias teaches us that the statutory phrase "medical negligence" is a term of art and means "breach of the standard of care." This terminology, thus defined, is not an altogether easy fit when applied to an action claiming lack of informed consent. The Supreme Court has reminded us that, "[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." Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 253, 943 A.2d 430 (2007). (Internal quotation marks and citation omitted.)
Connecticut measures the adequacy of a health care provider's explanation by a lay standard. "[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 [on] a contemplated course of therapy." Levesque, supra, 286 Conn., at 253. (Internal quotation marks and citation omitted.) Consequently, "[i]n a case where only one physician treats the patient, it is not necessary to establish through expert testimony that the physician had a duty to inform the patient prior to the surgical procedure." Godwin v. Danbury Eye Physicians Surgeons, P.C., 254 Conn. 131, 145, 757 A.2d 516 (2000).
Godwin provides an important clue to the puzzle presented by the motion now before the court. The trial court in Godwin had instructed the jury "that the doctrine of informed consent did not apply unless the plaintiff proved though expert testimony that the medical community's standard of care required an ophthalmologist to obtain the patient's consent before performing retrobulbar anesthesia." 254 Conn., at 141. Because of the lay standard imposed by Connecticut courts in informed consent cases, that instruction was held to be harmful error. Id., at 144-45. This approach differentiates Connecticut from other jurisdictions which have required the local equivalent of a good faith certificate in the pleading stage of informed consent cases. Those jurisdictions, like the trial court in Godwin, require plaintiffs in informed consent cases to prove their cases "on the basis of expert testimony demonstrating the extent of information given by reasonably careful physicians practicing the same specialty." Espander v. Cramer, 903 P.2d 1171, 1174 (Colo. Ct.App. 1995). See Darwin v. Gooberman, 772 A.2d 399, 407-08 (N.J. Super.Ct.App.Div.), cert. denied, 782 A.2d 426 (N.J. 2001). If expert evidence is required to prove a deviation of this description, a requirement of a certificate of good faith to prove the plaintiff's due diligence in deciding to file the action makes perfect sense. Connecticut, however, does not impose this requirement. As Levesque succinctly explains, a claim of lack of informed consent is "[u]nlike the traditional action of negligence." 286 Conn., at 253.
Lambert v. Stovell, 205 Conn. 1, 529 A.2d 710 (1987), provides another clue to the puzzle. Although Tagliarini heavily relies on Lambert, this authority does not, on careful examination, support the proposition that he advocates. Lambert addresses the question of which of two competing statutes of limitations is applicable in informed consent cases. Conn. Gen. Stat. § 52-577 provides that, "No action founded upon a tort shall be brought but within three years from the date of the act or omission complained of." The plaintiff in Lambert argued that, because § 52-577 applies to cases alleging intentional torts such as battery and because surgery without informed consent has historically been treated as a form of battery, it is this statute which controls in informed consent eases. The defendant in Lambert, in contrast, relied on Conn. Gen. Stat. § 52-584, which provides, in relevant part, that, "No action to recover damages for injury to the person . . . caused by negligence . . . or by malpractice of a physician . . . shall be brought within two years from the date when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered . . ."
Lambert holds that § 52-584 is the controlling statute of limitation in informed consent cases. The exact words of the decision are important. Lambert explains that the Connecticut law of informed consent "imposes upon the physician a duty, the breach of which constitutes malpractice. Consequently, where a patient seeks recovery against a physician based upon a lack of informed consent, he is bringing a ` malpractice' action as contemplated by § 52-584." 205 Conn., at 5. (Emphasis added.) The import of this language becomes clear when the text of § 52-584 is carefully examined. Sec. 52-584 applies to actions seeking recovery for injuries "caused by negligence . . . or by malpractice of a physician." (Emphasis added.) If Lambert had concluded that informed consent actions were " negligence" actions, within the meaning of § 52-584, an argument that actions of this description are also "negligence" actions within the meaning of § 52-190a(a) would be forceful. That is not, however, what Lambert concludes. Lambert concludes that informed consent actions are " malpractice" actions within the meaning of § 52-584. This holding dovetails nicely with Levesque's observation that an informed consent action is "[u]nlike the traditional action of negligence." 286 Conn., at 253.
For these reasons, actions alleging the lack of informed consent are not actions alleging "the negligence of a health care provider" within the meaning of Conn. Gen. Stat. § 52-190a(a), and that statute's requirement of a certificate of good faith does not apply to this action.
The motion to dismiss is denied.