Opinion
DBDCV196030816S
07-30-2019
Jennifer METCALF v. ADVANCED DERMCARE, P.C.
UNPUBLISHED OPINION
OPINION
Krumeich, J.
Defendant Advanced Dermcare, P.C. has moved to dismiss the complaint for failure to comply with C.G.S. § 52-190a because plaintiff has failed to attach an opinion letter from a similar health care provider stating that it has committed medical malpractice. Plaintiff Jennifer Metcalf has objected on the grounds that her claim is for lack of informed consent and alleges ordinary negligence, not medical malpractice, so that section is inapplicable. For the reasons stated below, the motion to dismiss is denied.
The legislation starts with a simple proposition: to commence a medical malpractice action, plaintiff must first obtain an opinion from a qualified expert that malpractice has occurred and attach a copy to the complaint along with a good faith certificate as required by C.G.S. § 52-190a. See Morgan v. Hartford Hospital, 301 Conn. 388, 396-97 (2011). "[T]he purpose of § 52-190a and its requirement of a good faith certificate was to prevent the filing of frivolous medical malpractice actions." Id. at 398 citing Bennett v. New Milford Hospital, Inc., 300 Conn. 1, 31 (2011). Failure to comply with C.G.S. § 52-190a warrants dismissal of the action for lack of jurisdiction over the person: "Section 52-190a requires that the written opinion letter must have been obtained prior to filing the action and that the good faith certificate and opinion letter must be filed when the action commences. Section 52-190a(c) provides: ‘The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.’" Morgan, 301 Conn. at 397. In Morgan the Supreme Court held: "[t]he failure to provide a written opinion letter, or the attachment of a written opinion letter that does not comply with § 52-190a, constitutes insufficient process and, thus, service of that insufficient process does not subject the defendant to the jurisdiction of the court ... [B]ecause the written opinion letter of a similar health care provider must be attached to the complaint in proper form, the failure to attach a proper written opinion letter pursuant to § 52-190a constitutes insufficient service of process ..." Id. at 401-02.
In ShortelI v. Cavanagh, 300 Conn. 383, 393 (2011), the Supreme Court cited another reason for the requirements of C.G.S. § 52-190a: "[f]urther, we determined that the amendment requiring a written opinion from a similar health care provider; see Public Acts 2005, No. 05-275, § 2(a); ‘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 obtained from the experts.’" Id., quoting Dias v. Grady, 292 Conn. 350, 358 (2009).
In Shortell v. Cavanagh, 300 Conn. 383, 393 (2011), the Supreme Court ruled that a claim of lack of informed consent was not a medical negligence claim subject to the statutory requirements of C.G.S. § 52-190a. The Court based its decision on the different elements of a claim for lack of informed consent and a claim for medical malpractice and the need for medical expert testimony to prove a medical malpractice claim and lay testimony that could prove a lack of informed consent.
"In order to prevail on a cause of action for lack of informed consent, a plaintiff must prove both that there was a failure to disclose a known material risk of a proposed procedure and that such failure was a proximate cause of his injury. Unlike a medical malpractice claim, a claim for lack of informed consent is determined by a lay standard of materiality, rather than an expert medical standard of care which guides the trier of fact in its determination. Logan v. Greenwich Hospital Ass’n, 191 Conn. 282, 293 ... (1983).
In Dias v. Grady, [ 292 Conn. 350] ... at 359 [ (2009) ] ... we determined that the term medical negligence in § 52-190a referred to a breach of the standard of care. In view of the fact that we were defining the term medical negligence, we referred to a medical standard of care and not a lay standard of care. We must interpret § 52-190a so that it does not lead to absurd results. It would not be logical that an opinion from a similar health care provider would be required to commence an action of this nature, when the testimony of a medical expert would not be necessary at trial to prove the standard of care and its breach. We have often recognized that ‘those who promulgate statutes ... do not intend to promulgate statutes ... that lead to absurd consequences or bizarre results.’ (Internal quotation marks omitted.) State v. Harrison, 228 Conn. 758, 765 ... (1994). As we stated in Dias v. Grady, supra, at 361 ... in rejecting a requirement that a similar health care provider give an opinion as to causation because a medical opinion is not required for proving causation, ‘requiring a similar health care provider to give an opinion ... at the pre-discovery stage of litigation pursuant to § 52-190a when a similar health care provider is not required to give such an opinion at trial pursuant to § 52-184c would bar some plaintiffs who could prevail at trial from even filing a complaint. Because this would lead to a bizarre result, we reject this claim.’ Likewise, in an informed consent case, the plaintiff is not required to present the testimony of a similar health care provider regarding the standard of care at trial. Therefore, to require an opinion from a similar health care provider at the inception of the case would lead to a bizarre result, which we cannot countenance.
Indeed, the focus of a medical malpractice case is often a dispute involving the correct medical standard of care and whether there has been a deviation therefrom. Conversely, the focus in an action for lack of informed consent is often a credibility issue between the physician and the patient regarding whether the patient had been, or should have been, apprised of certain risks prior to the medical procedure." 300 Conn. at 387-89.
In Shortell the Supreme Court emphasized that the test for whether a claim alleges medical malpractice is not whether expert medical evidence is required but whether such testimony is required to present the applicable professional standard of care.
"As the plaintiff’s counsel conceded during oral argument before this court, expert testimony is used in many, but not all, informed consent cases. The distinction to be drawn, however, is that the expert testimony elicited in these cases does not relate to the standard of care. It normally relates only to the types of risks of which a patient is customarily apprised, the type of procedure, as well as the hazards, anticipated benefits and alternatives to the procedure, if any ... Further, although it is true that § 52-190a does not explicitly limit the requirement of a written opinion letter to cases that require expert testimony, we have concluded herein that its application in a case that does not require expert testimony regarding the standard of care would lead to an absurd result.
The defendant concedes that § 52-190a applies to actions for the negligence of a health care provider that constitute medical negligence or malpractice, but argues that it does not apply to actions for negligence of a health care provider that constitute ordinary negligence. The defendant further asserts that the determinative question as to whether § 52-190a applies is whether the alleged injury occurred during treatment due to a negligent act or omission that was substantially related to treatment, not whether an expert is required in the case. We disagree. As we explained previously herein, in Dias v. Grady, supra, 292 Conn. at 359, 972 A.2d 715, ‘we conclud[ed] 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.’ ... Thus, if an expert is needed to establish the standard of care, a fortiori, an opinion letter is required from a similar health care provider. It is likewise both consistent and logical to hold that if an expert is not required to establish the medical standard of care, an opinion letter is not required under § 52-190a. This is especially true in an action for lack of informed consent where our case law is so well established that the lay standard of materiality of risk is applicable." 300 Conn. at 393-94.
The same facts may give rise to both a medical malpractice claim and a claim for lack of informed consent. See Downs v. Trias, 306 Conn. 81, 89 (2012).
The complaint consists of a single count that alleges a technician employed by defendant performed a treatment for sunspots known as intense pulsed light ("IPL") on plaintiff without advising her of the known risk of exposure to sunlight prior to IPL treatment and that, as a result, she suffered permanent skin damage. Defendant argues that the allegations sound in medical malpractice because defendant is a "health care provider" within the meaning of C.G.S. § 52-184b, the relationship between the parties was physician-patient for a specialized medical treatment and the alleged negligence required the exercise of medical judgment, "whether it was appropriate for a medical professional to administer IPL treatment- a medical procedure- in light of plaintiff’s alleged recent sun exposure." See Boone v. William W. Backus Hospital, 272 Conn. 551, 562 (2005). Defendant contends the claim raises the issue of whether it was appropriate to administer the IPL treatment given plaintiff’s recent sun exposure and thus implicates the professional standard of care which will require expert testimony. See e.g., Caplin v. Laser Center of Northeast Connecticut, 2009 WL 1424712 *3-6 (Conn.Super. 2009) (Riley, J.) (medical malpractice claim based on performance of dermatological procedure dismissed for lack of timely filing opinion letter; lack of informed consent and breach of contract claims not dismissed because no opinion letter required); Rosenberg v. Langdon, 2009 WL 4682065 *4 (Conn.Super. 2009) (Robinson, J.) (dismissed for lack of opinion letter because breach of contract claim about performance of dermatological procedure "implicated the standard of care" because "the gravamen of the action was the alleged failure by the defendant to provide adequate medical treatment and care").
The gravamen of the complaint is that defendant was negligent in failing to "[a]dvise and obtain plaintiff’s consent about performing IPL services with the known risk of providing IPL treatment after sun exposure ..." Although the performance of IPL after sun exposure is alleged to have caused the alleged damages, the breach of duty alleged is failure to obtain informed consent. The facts alleged could also state a medical malpractice claim for negligent performance of the IPL services, but that is not the claim alleged. No opinion letter under C.G.S. § 52-190a was required.
This case is unlike the cases relied on by defendant that primarily stated medical malpractice claims for negligent performance of services, with lack of informed consent allegation a negligible part of a broader medical malpractice claim. See e.g., Downs, 306 Conn. at 92; O’Dell v. Greenwich Health Care, 2011 WL 4424393 *5 (Conn.Super. 2011) (Jennings, J.).
Defendant asserts that plaintiff has not properly pled a claim of lack of informed consent and points to facts asserted in her affidavit that are not alleged in the complaint. The complaint alleges failure to disclose a known material risk arising out of a medical procedure and that the failure to disclose was the proximate cause of the injury. See Shortell, 300 Conn. at 387. If insufficient facts are alleged to support conclusory allegations that should be addressed in a motion to strike. A motion to dismiss is not the functional equivalent of a motion to strike. Moreover, if a motion to strike were granted, plaintiff would have the right to replead.
Moreover, assuming that merely performing the IPL procedure after recent sun exposure was a known risk and caused plaintiff’s injuries, the allegations relating to performance of the procedure do not implicate medical judgment or standard of care, but rather stem from the foreseeable risk of performing the procedure at all under the circumstances alleged, which is simple negligence not medical malpractice. Compare, Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 358 (2001) ("the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment").
The motion to dismiss is denied.