Basinger v. Roccapriore, No. CV02-0458993S (CT 1/10/2005)

• Decision Date: 10 January 2005
• Docket Number: No. CV02-0458993S,CV02-0458993S
• Court: Connecticut Supreme Court
• Parties: Dorothy Lee Basinger v. David M. Roccapriore, DPM

Page 1

Unpublished Opinion

Dorothy Lee Basinger v. David M. Roccapriore, DPM

No. CV02-0458993S

Superior Court of Connecticut

Judicial District of New Haven at New Haven

January 10, 2005

MEMORANDUM OF DECISION

ARNOLD, JUDGE.

This is a medical malpractice action that was tried to the court between the dates of June 22, 2004 and June 30, 2004. Thereafter, counsel for the plaintiff and the defendant submitted trial briefs. The defendant is a Licensed physician engaged in the practice of Podiatric medicine in the State of Connecticut, with offices in Meriden, Connecticut. The plaintiff is a shuttle bus driver.

A review of the plaintiff's complaint, bearing a return date of January 8, 2002, alleges that the plaintiff presented herself to the defendant's office on December 22, 1999, complaining of a painful bunion and hammertoe deformity of the right foot. After examining the plaintiff the defendant rendered a diagnosis of the plaintiff's right foot which included a hallus abductus valgus deformity, a second hammertoe deformity and an elongated and plantar flexed second metatarsal bone of the right foot, secondary to a dislocated second toe. The defendant agrees that this was, in fact, his medical diagnosis.

The plaintiff further alleged that the defendant recommended to the plaintiff that she undergo surgical procedures as follows: (A) Austin Bunionectomy with adductor tendon transfer; fibular sesamoid excision; partial second metatarsal head resection; and arthroplasty proximal interphalangeal joint right second toe. The defendant agrees that he recommended these surgical procedures.

Thereafter, on December 22, 1999, the plaintiff consented to the recommended surgical procedures being performed on her right foot by the defendant. The parties disagree, as to whether the consent was an informed consent.

On January 19, 2000, surgery was performed at the Midstate Medical Center in Meriden, Connecticut. The defendant performed the following procedures: Austin Bunionectomy with fibular sesamoid excision, a total metatarsal head resection, and an arthroplasty of the second toe by excision of the head of the proximal phalanx.

The plaintiff claims that as a result of the January 19, 2000 surgery, the plaintiff suffered severe, permanent and disabling injuries, including the recurrence of her foot deformity, an overlapping of the hallus, severe and continuing pain, the destruction of the metatarsal parabola, and the necessity for additional joint destructive surgery.

The plaintiff alleges that her injuries and damages were caused by the defendant's negligence in that:

1. The defendant recommended and performed surgical procedures that were inappropriate for the plaintiff's condition;

2. The defendant failed to secure the plaintiff's intelligent and informed consent to the proposed surgical procedures in advance, in that he failed to describe sufficiently, or even mention, alternatives to the proposed procedures for the plaintiff's contemplation.

The plaintiff claims that the procedures were inappropriate in that in the case of the marked metatarsus primus adductus of greater than 15 degrees (as with the plaintiff's right foot), along with a metatarsus adductus deformity and subluxed first metatarso-phanlangeal joint, the surgical procedures would not be adequate to correct the plaintiff's problem. Additionally, the dorsiflexion of second toe and the overlapping of the hallux should have been expected since the second metatarsal head was removed at the time the arthroplasty was performed.

The plaintiff alleges that as a result of the defendant's negligence, she was required to undergo further corrective surgery to her financial loss; suffered a loss of earning capacity; has permanent injuries; and is unable to enjoy her life's activities. The plaintiff claims damages, as well, for physical, mental and emotional suffering. The defendant denies the allegations of medical negligence and that he failed to obtain the informed consent of the plaintiff.

I THE LAW

The court first sets forth the legal principles pertaining to a claim of medical malpractice. These principles guide the court in rendering its decision. "[T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury." Kalams v. Giacchetto, 268 Conn. 244, 264 n.3 (2004) 842 A.2d 1100 (2004); quoting, Gold v. Greenwich Hospital Assn., 262 Conn. 248, 254-55, 811 A.2d 1266 (2002).

"The standard of care to be exercised by a physician in diagnosis and treatment, and thus the scale by which courts and juries weigh malpractice claims, is well established. `A physician is under a duty to his patient to exercise that degree of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases.'" Fitzmaurice v. Flynn, 167 Conn. 609, 616, 356 A.2d 887 (1975); quoting, Snyder v. Pantaleo, 143 Conn. 290, 292, 122 A.2d 21; Horton v. Vickers, 142 Conn. 105, 113, 111 A.2d 675; Marchlewski v. Casella, 141 Conn. 377, 380, 106 A.2d 466; Ardoline v. Keegan, 140 Conn. 552, 556, 102 A.2d 352.

"Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard." (Internal quotation marks omitted.) Carusillo v. Assoc. Women's Health Specialists, 79 Conn.App. 649, 654, 831 A.2d 255 (2003); Harlan v. Norwalk Anesthesiology P.C., 75 Conn.App. 600, 613, 816 A.2d 719, cert. denied, 264 Conn. 911, 826 A.2d 1155 (2003). "Usually, proof of the breach of this duty must rest upon the testimony of an expert witness qualified to state what the particular standard of care requires and to express an opinion that the treatment accorded the patient failed to meet this standard." Fitzmaurice v. Flynn, supra, 167 Conn. 609, 616, 356 A.2d 887 (1975); Snyder v. Pantaleo, supra, 143 Conn. 290, 292. Additionally, no mater how negligent a party may have been, if his negligent act bears no relation to the injury, it is not actionable. (Citations omitted; internal quotation marks omitted.) Sherman v. Bristol Hospital, Inc., 79 Conn.App. 78, 91 n.6, 828 A.2d 1260 (2003); Gordon v. Glass, 66 Conn.App. 852, 855-56, 785 A.2d 1220 (2001), cert. denied, 259 Conn. 909, 789 A.2d 994 (2002).

The legal principles regarding a lack of informed consent are also well-settled. In Logan v. Greenwich Hospital Assn., 191 Conn. 282, 289, 465 A.2d 294 (1983), our Supreme Court established the standard by which a physician necessarily obtains informed consent from a patient. Favoring a lay standard, informed consent requires a physician "to provide the patient with the information which a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy." (Internal quotation marks omitted.) Janusauskas v. Fichman, 264 Conn. 796, 810-11 (2003) 826 A.2d 1066 (2003); Godwin v. Danbury Eye Physicians & Surgeons, P.C., 254 Conn. 131, 143, 757 A.2d 516 (2000); Logan v. Greenwich Hospital Assn., 191 Conn. 282, 292-93, 465 A.2d 294 (1983).

In adopting the lay standard, namely that a physician has "a duty to disclose such information as a reasonable patient would consider material to the decision whether or not to undergo treatment or diagnosis," (Internal quotation marks omitted.) Logan v. Greenwich Hospital Assn., supra, 191 Conn. 292, the court also considered a physician's duty to disclose information about alternative treatments. The court noted that "[t]he standard has been further delineated by specifying various elements which the physician's disclosure should include: (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." (Internal quotation marks omitted.) Id. "Under Logan, the elements of a physician's duty of disclosure under the doctrine of informed consent include the duty to disclose alternative medical procedures." Wright v. Hutt, 50 Conn.App. 439, 447-48 (1998) 718 A.2d 968 (1998). The duty to inform is, therefore, a crucial aspect of the principle of informed consent. "The duty to inform is, therefore, a crucial aspect of the principle of informed consent. That principle, in turn, arises out of a patient's common-law right of self-determination and constitutional right to privacy." Pekera v. Purpora, 80 Conn.App. 685, 692, 836 A.2d 1253 (2003). Regarding informed consent, it is a duty of a doctor or surgeon to give a patient all the information that is material to the decision that the patient will make in undergoing the proposed procedure. Under this duty the plaintiff must prove that the doctor did not disclose all known material risks peculiar to a proposed procedure. Wright v. Hutt, supra, 50 Conn.App. 454.

In 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 a surgical procedure. Godwin v. Danbury Eye Physicians & Surgeons, supra, 254 Conn. 144-45; See also, Raybeck v. Danbury Orthopedic Associates, P.C., 72 Conn.App. 359, 372, 805 A.2d 130 (2002).

"[A]lthough a malpractice complaint may include claims both for failure to perform and for failure to inform, the two claims are not identical." Pekera v. Purpora, supra, 80 Conn.App. 691, "The distinction between a duty to exercise due care in the performance of requisite medical procedures and a duty to exercise due care in informing a patient of medical risks is not merely linguistic. It reflects, instead, the fundamental difference between the appropriate performance of professional skills and the proper engagement of a patient in decision making about his or her professional care." Id.

II FACTUAL FINDINGS

The plaintiff...