Opinion
No. CV 08-5021485-S
February 26, 2009
MEMORANDUM OF DECISION ON MOTION TO DISMISS
Defendant moves to dismiss counts four and six of the amended complaint on the grounds that, pursuant to the requirements of General Statutes § 52-190a, the Court lacks subject matter jurisdiction because the medical opinion letter appended to the plaintiff's complaint (1) was insufficient.
This medical malpractice action was commenced by the plaintiff, Carolyn Theil, against the defendants Dr. Joel Sorosky (the defendant), Dr. Alan Fine and Women's Care Associates, P.C. (WCP). On September 25, 2008, the plaintiff filed an amended six-count complaint with the appended letter from an attesting physician, alleging the following facts.
On or about December 1, 2005, the plaintiff was pregnant and began prenatal care at WCP under the direction and attention of Fine. Fine had been the plaintiff's obstetrician and gynecologist since 1987. During that time, Fine had performed three cesarean sections and a right and left ovarian cystectomy. The abdominal cavity was entered through the same incision for all these procedures. Upon learning of the plaintiff's pregnancy, Fine expressed concern to the plaintiff "about uterine rupture and complications that could arise from another cesarean section surgery for this pregnancy because of prior complications and findings during earlier surgeries." Fine referred the plaintiff to the defendant for further consultation because of these concerns. On December 27, 2005, the plaintiff attended an appointment with the defendant who assured the plaintiff that he could perform the cesarean section surgery and that he believed the plaintiff had minimum risk of uterine rupture or severe complications from the procedure. Following this meeting, the defendant told the plaintiff that she should continue her regular office visits with Fine's private obstetrical practice throughout the pregnancy. He also told the plaintiff to remain in contact with him through his assistant. Based upon the statements of the defendant that day and thereafter, the plaintiff understood that the defendant would be the physician performing the cesarean section surgery.
On July 17, 2006 in a planned, scheduled procedure, Fine performed the cesarean section surgery. The defendant was present and participated as an intra-operative consultant.
The plaintiff alleges that she suffered injuries caused by the defendant's failure to exercise the degree of care and skill ordinarily and customarily used by physicians and surgeons specializing in obstetrics and gynecology. Specifically, count four alleges that the defendant failed to properly obtain informed consent from the plaintiff that Fine would be the physician performing the cesarean section surgery. Count six alleges that the defendant negligently made a misrepresentation of fact to the plaintiff that he would be the physician performing the surgery.
On October 3, 2008, the defendant filed this motion to dismiss counts four and six of the plaintiff's amended complaint on the grounds "that the medical opinion letter appended to the plaintiff['s] complaint fails to address the alleged medical negligence of the defendant in failing to obtain adequate informed consent for the procedure, and fails to address any alleged medical negligence in the representations of the defendant during his discussions with the plaintiff.
II
Plaintiff claims the written opinion attached to her complaint is that of a similar health care provider who opines that there appears to be evidence of medical negligence with a detailed basis for this opinion. The plaintiffs further claim that § 52-190a does not require a medical opinion letter for a claim of lack of informed consent or negligent misrepresentation.
General Statutes § 52-190a(a) provides, in relevant part, that an attorney representing a person filing a complaint alleging injury resulting from the negligence of a health care provider shall "make 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 must contain a good faith certificate by an attorney. Public Act 05-275 amended [§]52-190a to require the attorney to attach to the certificate a copy of a written opinion of a similar health care provider: that there appears to be evidence of medical negligence including a detailed basis for the formation of such an opinion. Public Act 05-275 also added subsection (c) to [§]52-190a, which provides that `[t]he failure to obtain and file the written opinion required by subsection (a) shall be grounds for the dismissal of the action.'"
III
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. Sherwood v. Danbury Hospital, 278 Conn. 163, 181 896 A.2d 777 (2006).
In Mason v. Walsh, 26 Conn.App. 225, 230, 600 A.2d 326 (1992), the Appellate Court stated that:
[i]n order to establish the existence of a duty to inform, the plaintiff must show through expert testimony that the customary standard of care of physicians in the same practice as that of the defendant doctor was to obtain the patient's consent prior to performing any operation. Once the existence of the duty to inform has been established, the degree or extent of disclosure necessary to satisfy the duty must be proven in accordance with the lay standard. Where . . . a surgeon engages one or more specialists to perform a portion of a procedure, the issue as to who has the duty to obtain the patient's consent to that portion of the procedure to be performed by the specialist arises. It [is] incumbent upon the plaintiff to establish by expert testimony which of the physicians, if any, owed [the patient] the duty of disclosing sufficient facts to permit him to exercise an informed consent . . .
In Raybeck v. Danbury Orthopedic Associates, P.C., 72 Conn.App. 359, 372-73 n. 5, 805 A.2d 130 (2002), after distinguishing its facts from those of Mason, the Court found that a "lay standard," not established through expert testimony, is the proper standard for determining whether sufficient informed consent was obtained by a patient.
In the present case, as in Raybeck, the plaintiff has alleged that both the defendant and Fine owed her a duty to obtain informed consent. Furthermore, the facts alleged in the complaint indicate that the plaintiff had many interactions with both the defendant and Fine prior to the medical procedure which presented several opportunities for either physician to obtain the plaintiff's informed consent. It appears that the applicable standard for determining whether the plaintiff obtained informed consent is the lay standard used in Raybeck and not the Mason standard requiring the use of experts.
A number of Superior Court decisions have followed this conclusion. Pafka v. Gibson, supra, Superior Court, Docket No. X03 CV 05-5008249 [43 Conn. L. Rptr. 871]; Stevens v. Spector, Superior Court, judicial district of Fairfield, Docket No. CV 06-5001000 (October 25, 2006, Hiller, J.) [42 Conn. L. Rptr. 244]; Landry v. Zborowski, Superior Court, judicial district of Tolland, Docket No. CV 07-6000211 (October 26, 2007, Vacchelli, J.) [44 Conn. L. Rptr. 452].
It is concluded that § 52-190a does not require the similar health care provider opinion author to identify whether there was sufficient informed consent because that issue is measured by a lay standard.
IV
Our Supreme Court has stated:
"Traditionally, an action for negligent misrepresentation requires the plaintiff to establish (1) that the defendant made a misrepresentation of fact (2) that the defendant knew or should have known was false, and (3) that the plaintiff reasonably relied on the misrepresentation, and (4) suffered pecuniary harm as a result." Nazimi v. Patrons Mutual Ins. Co., 280 Conn. 619, 626, 910 A.2d 209 (2006). This tort, based in negligence, subjects the defendant "to liability if, but only if, he has failed to exercise the care or competence of a reasonable man in obtaining or communicating the information." Johnnycake Mountain Associates v. Ochs, 104 Conn.App. 194, 201, 932 A.2d 472 (2007).
The defendant moves to dismiss count six, in which the plaintiff alleges the defendant made a negligent misrepresentation to her that he would be the physician performing the cesarean section. The defendant argues that count six is a veiled medical malpractice claim required to be addressed in the medical opinion letter, citing Votre v. County Obstetrics Gynecology Group, P.C., Superior Court, judicial district of New Haven, Docket No. CV 06-5005430 (May 24, 2007, Holden, J.).
In Votre, The Court concluded that the claim for negligent misrepresentation was in fact a medical malpractice claim and required compliance with § 52-190a.
In the present case however, the plaintiff's negligent misrepresentation claim is distinguishable from that in Votre. In count six the plaintiff alleges that the defendant "made a misrepresentation of fact that he knew or should have known was false to the plaintiff . . . that the defendant . . . would be the physician actually performing the surgery on the plaintiff." This count sounds purely in tort and does not address any procedural aspect of the treatment focusing solely on representations made by the defendant, not the medical treatment he provided.
These representations were made prior to, not during, the surgery and do not concern any medical aspect of that surgery or treatment. Therefore, a preliminary medical opinion as to whether the alleged negligent misrepresentation was inconsistent with the applicable standard of care is unnecessary.
Defendant's motion to dismiss is denied.