Downs v. Trias

• Decision Date: 21 August 2012
• Docket Number: No. 18755.,18755.
• Court: Connecticut Supreme Court
• Parties: Allison DOWNS et al. v. Orlito A. TRIAS et al.

306 Conn. 81

49 A.3d 180

Allison DOWNS et al.

v.Orlito A. TRIAS et al.

No. 18755.

Supreme Court of Connecticut.

Argued April 19, 2012.

Decided Aug. 21, 2012.

David J. Robertson, with whom was Madonna A. Sacco, Bridgeport, for the appellants (defendants).

Peter M. Dreyer, with whom were Richard A. Silver and, on the brief, Jonathan M. Levine and Amanda R. Whitman, Stamford, for the appellees (plaintiffs).

ROGERS, C.J., and NORCOTT, ZARELLA, McLACHLAN, HARPER and VERTEFEUILLE, Js.^*

HARPER, J.

The defendant, Orlito A. Trias,¹ an obstetrician and gynecologist, appeals ² from the judgment of the trial court, after a jury trial, in favor of the plaintiff, Allison Downs,³ with respect to the allegations that the defendant's negligence resulted in the plaintiff developing ovarian cancer. The defendant contends that, because the plaintiff's complaint turned on the defendant's failure to advise her that she should have her ovaries removed due to a family history of cancer, the trial court improperly construed the plaintiff's complaint as arising out of medical negligence rather than a failure to obtain informed consent and that the court consequently improperly admitted certain expert testimony and improperly instructed the jury. The defendant also raises claims with respect to the adequacy of the plaintiff's proof and the propriety of various rulings by the trial court. We conclude that the judgment of the trial court should be affirmed in all respects.

The record reveals the following facts that the jury reasonably could have found. The plaintiff has an extensive family history of breast cancer; prior to 1981, her mother, maternal grandmother and two maternal aunts all had died from that disease. In 1981, although she had not been diagnosed with breast cancer, the plaintiff, who was then twenty-two, acted to reduce her cancer risk by undergoing a bilateral mastectomy. In 2005, the plaintiff underwent an elective partial hysterectomy to remedy a uterine fibroid condition caused by painful, but ordinarily noncancerous, tumors. The defendant, who had treated the plaintiff for the prior twenty years, performed the surgery, which entailed removing the plaintiff's uterus but not her cervix or ovaries. At a preoperative consultation, the defendant explained to the plaintiff that, although she had a significant family history of breast cancer, that history, unless supplemented by genetic testing, which the plaintiff had not undergone,⁴ did not point to an increased risk of ovarian cancer. The defendant further indicated that the plaintiff's ovaries were healthy, that there was no reason to remove them and that removal would result in unpleasant side effects including early menopause and interference with sexual intercourse. No complications resulted from the hysterectomy that followed this consultation. Approximately one year after the surgery, however, the plaintiff was diagnosed with late stage, terminal, ovarian cancer, which had spread to her abdomen. At the time of her hysterectomy, the plaintiff did not have ovarian cancer, and, had her ovaries been prophylacticly removed at that time, she would not have developed the cancer.

The record reveals the following procedural history. The plaintiff brought the present action alleging that her cancer and related injuries were caused by the defendant's negligence. Specifically, the plaintiff alleged that the defendant negligently had: failed to provide proper gynecological care; failed to properly treat her; failed to strongly advise her to have her ovaries removed during the hysterectomy; failed to remove her ovaries; and failed to instruct her that her family history of cancer greatly increased her risk of developing ovarian cancer. Before trial, the defendant moved to exclude expert testimony regarding the professional standards governing the defendant's duty to inform the plaintiff of her cancer risk and to give related advice, contending that such expert testimony was inadmissible because the case solely involved the duty to obtain informed consent, which is governed by a lay standard of care. The trial court denied the motion and subsequently permitted the plaintiff's experts to testify that the defendant had failed to adhere to the applicable medical professional standard of care, which required him to appreciate the plaintiff's elevated risk of ovarian cancer, to warn her of this risk and to recommend that she have her ovaries removed to mitigate this risk, and to document that he had done so. At the close of evidence, the trial court instructed the jury, inter alia, that “the plaintiff has the burden of proving by a fair preponderance of the evidence that [the defendant's] conduct represented a breach of the prevailing professional standard of care.” The jury returned a verdict in favor of the plaintiff, awarding her $4 million in damages. This appeal followed.

On appeal, the defendant has marshaled a host of grievances into a list of no less than seven separate issues. We begin, therefore, with what appears to be the primary dispute in this case, which turns on the proper characterization of the plaintiff's cause of action, and we address the defendant's additional claims in turn.

I

The defendant contends that the trial court improperly permitted expert testimony and instructed the jury in a manner consistent with a claim of traditional medical negligence. Both claims arise from the defendant's foundational assertion that the plaintiff's complaint necessarily sounded exclusively in informed consent, rather than in medical malpractice. The plaintiff responds that the trial court's decisions were proper because her complaint properly alleged medical negligence. We agree with the plaintiff.

We begin by addressing the standard of our review. Although the defendant's specific complaints concern the admission of expert testimony and instructions to the jury, the propriety of the trial court's actions depends upon the proper interpretation of the case as pleaded by the plaintiff. “[T]he interpretation of pleadings is always a question of law for the court.... Our review of the trial court's interpretation of the pleadings therefore is plenary.” (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 559, 864 A.2d 1 (2005).

For purposes of this case, the chief salient distinction between a claim based on lack of informed consent and one based on medical negligence may be summarized as follows: “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.” Shortell v. Cavanagh, 300 Conn. 383, 388, 15 A.3d 1042 (2011). Under this lay standard, “material” information that must be disclosed refers to “that 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.) Duffy v. Flagg, 279 Conn. 682, 692, 905 A.2d 15 (2006). By contrast, to find for the plaintiff in a medical negligence claim, the jury must determine that the defendant fell short of the prevailing professional standard of care. Boone v. William W. Backus Hospital, supra, 272 Conn. at 567, 864 A.2d 1; see General Statutes § 52–184c (a). As a result of these differing standards, expert testimony establishing the professional standard of care is ordinarily required to prove medical negligence, but such testimony regarding professional norms is not relevant to the question of whether a physician's disclosure satisfies the lay “materiality” test.⁵Shortell v. Cavanagh, supra, at 390–91, 15 A.3d 1042. As recitation of these two potential sources of liability indicates, a physician has both a duty to exercise medical care in accordance with prevailing professional standards and a duty to provide patients with material information concerning a proposed course of treatment. The issue in the present case concerns the relationship between these two obligations. Specifically, may a physician, in failing to provide a patient with information, incur liability for falling short of the professional standard of care? The answer to this question plainly is yes. In such a case, physician has a professional duty to possess or obtain certain medical knowledge as well as an additional “lay” duty to communicate a subset of that information to the patient. A physician who fails to apprise a patient of a certain fact may therefore, in appropriate circumstances, be held liable for failing to know the fact in the first place (medical negligence) and for failing to convey the fact to the patient for his or her consideration in making medical treatment decisions (lack of informed consent).⁶

A review of this court's prior cases illustrates the fact that although medical negligence and lack of informed consent are clearly distinct causes of action with different elements that must be proven; see Shortell v. Cavanagh, supra, 300 Conn. at 388, 15 A.3d 1042; the same set of facts may give rise to both causes of action. In DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 998 A.2d 730 (2010), for example, we recently rejected a contention that medical negligence and informed consentwere necessarily mutually exclusive causes of action.⁷ In DiLieto, testimony supported a conclusion that “but for [the defendant physician's] negligent failure to obtain the [Yale] tumor board's findings with respect to the results of the analysis of [the plaintiff's] tissue specimens, [the physician] would have learned that [the plaintiff] may not have had cancer, and, upon so informing [the p...