Godwin v. Danbury Eye Physicians & Surgeons, PC

• Decision Date: 08 August 2000
• Docket Number: (SC 16175)
• Citation: 757 A.2d 516,254 Conn. 131
• Court: Connecticut Supreme Court
• Parties: CLARENCE O. GODWIN v. DANBURY EYE PHYSICIANS AND SURGEONS, P.C., ET AL.

254 Conn. 131

757 A.2d 516

CLARENCE O. GODWIN v. DANBURY EYE PHYSICIANS AND SURGEONS, P.C., ET AL.

(SC 16175)

Supreme Court of Connecticut.

Argued March 22, 2000.

Officially released August 8, 2000.

Borden, Norcott, Katz, Palmer and Vertefeuille, Js. Edward F. Hennessey, with whom was David Thomas Ryan, for the appellant (plaintiff).

Augustus R. Southworth III, with whom was Matthew R. Peterson, for the appellee (defendant Vincent S. Reppucci).

Opinion

VERTEFEUILLE, J.

The plaintiff, Clarence O. Godwin, brought this action against the defendants, Danbury Eye Physicians and Surgeons, P.C., and a physician employed by it, Vincent S. Reppucci, alleging, in four counts: (1) assault and battery; (2) lack of informed consent; (3) medical malpractice; and (4) res ipsa loquitur. The plaintiff's allegations arose out of laser eye treatment administered by Reppucci.¹ The plaintiff appeals from the judgment of the trial court rendered after a jury verdict for the defendant. The plaintiff claims that the trial court improperly: (1) directed a verdict for the defendant with respect to the assault and battery claim; (2) refused to instruct the jury on the doctrine of res ipsa loquitur; and (3) improperly instructed the jury regarding the doctrine of informed consent. We disagree with the plaintiff's first two claims and agree with his third claim. Accordingly, we reverse the judgment of the trial court and order a new trial limited to the plaintiffs claim of lack of informed consent.²

The jury reasonably could have found the following facts. The plaintiff was referred to the defendant, an ophthalmologist and retina vitreous specialist, who diagnosed a macular degeneration of the left eye, an age-related condition that impairs one's vision. The defendant recommended laser photocoagulation, a laser treatment designed to prevent the degeneration. The defendant explained the risks, benefits and alternatives of the treatment to the plaintiff. In particular, the defendant explained that the laser treatment would require the plaintiff to sit in front of a laser machine so that a laser could be directed into his eye. In order to direct the laser accurately and immobilize the eye, the retrobulbar cavity, the area behind the eyeball, would be injected with anesthesia, a procedure known as "retrobulbar anesthesia." The defendant's explanation of the anesthesia procedure included the fact that a significant loss of vision could result. The plaintiff gave his written consent to the procedure, which included a form entitled, "Permission for Operation and/or Procedure and Anesthesia."

On April 10, 1992, the defendant administered the retrobulbar anesthesia. Prior to the procedure, the plaintiff inquired into the use of the retrobulbar needle and was told that it would be used to anesthetize the eye. After the plaintiff's eye was anesthetized, the defendant performed the laser treatment (first procedure). After this first procedure, the plaintiff's condition worsened and, as a result, the defendant recommended a second treatment. The plaintiff orally consented to this treatment and understood that it would be the same as the first procedure, including the administration of the retrobulbar anesthesia. The defendant testified that the plaintiff had signed a written consent form, however, that form was not in the medical file at the time of trial.

On April 28, 1992, the plaintiff came in for the second treatment (second procedure). During the administration of the retrobulbar anesthesia, the needle perforated the globe of the plaintiffs eyeball. As a result, the plaintiffs vision was damaged permanently.

The plaintiff thereafter brought this action. At the conclusion of the plaintiffs case, the trial court granted a directed verdict in favor of the defendant on the first count of the plaintiffs complaint, which alleged assault and battery. After the conclusion of the evidence by both parties, the trial court instructed the jury regarding the second and third counts of the complaint, which alleged lack of informed consent and medical malpractice, respectively. The trial court, however, refused to instruct the jury on the doctrine of res ipsa loquitur, which was alleged in the fourth count of the complaint. The jury returned a general verdict in the defendant's favor. The plaintiff moved to set aside the verdict and for a new trial. The trial court denied this motion and rendered judgment for the defendant. The plaintiff appealed from the judgment of the trial court to the Appellate Court. Thereafter, we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1.

I

The plaintiff first contends that the trial court improperly directed a verdict in favor of the defendant on the plaintiffs claim for assault and battery. In particular, the plaintiff claims that the defendant failed to obtain consent for the retrobulbar anesthesia that was administered during the second procedure. We disagree.

"Directed verdicts are not favored.... A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion." (Citation omitted.) Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986); Puro v. Henry, 188 Conn. 301, 303, 449 A.2d 176 (1982); Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979). "In reviewing the trial court's decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff." Petyan v. Ellis, supra, 244.

Considering the evidence in the light most favorable to the plaintiff, the following facts are relevant to this issue. In April, 1992, after examining the plaintiff, the defendant recommended laser photocoagulation treatment. After the defendant explained some of the possible risks and side effects of the procedure, the plaintiff signed a written consent form entitled, "Permission For Operation and/or Procedure and Anesthesia."

When the plaintiff returned on April 10, 1992, for the first procedure, the defendant explained that, in order to prevent the eye from moving and thus maintain the accuracy of the laser, he needed to perform a procedure in which he would insert a needle into the area that surrounds the eyeball and inject anesthesia into that tissue. The defendant then administered the retrobulbar anesthesia and performed the initial laser treatment. After the plaintiffs condition worsened, however, the defendant recommended that the plaintiff undergo the second procedure.

The defendant testified that he obtained a second written consent form from the plaintiff for the second procedure, but could not locate it in his medical records at the time of trial. The plaintiff testified that he remembered consenting orally to the second procedure. He also testified that he knew that the second procedure, including the administration of the retrobulbar anesthesia, would be the same as the first procedure.

We have long recognized the principle that "[e]very human being of adult years and sound mind has a right to determine what shall be done with his own body; and a surgeon who performs an operation without his patient's consent, commits an assault, for which he is liable in damages." (Internal quotation marks omitted.) Logan v. Greenwich Hospital Assn., 191 Conn. 282, 288-89, 465 A.2d 294 (1983). In Logan, this court established that a patient can recover for assault and battery when the physician (1) fails to obtain any consent to the particular treatment, (2) performs a different procedure from the one for which consent has been given, or (3) realizes that the patient does not understand what the procedure entails. Id., 289.³

The evidence established that the defendant, at a minimum, had obtained oral consent for the second procedure. The plaintiff admitted that he had given verbal consent for the second procedure and understood that the second procedure would follow the same process as the first procedure, including the administration of the retrobulbar anesthesia. Therefore, there was no basis upon which a jury reasonably could have found that the defendant had failed to obtain any consent for the second procedure.

We find no merit to the plaintiffs contention that the defendant needed to obtain a separate consent for the retrobulbar anesthesia. The plaintiff hinges this argument on the defendant's testimony that he did not have the plaintiff consent separately and specifically to the retrobulbar anesthesia. Testimony from the defendant and the expert witnesses for both the defendant and the plaintiff established, however, that it was not common practice for ophthalmologists to seek a separate consent for retrobulbar anesthesia when it was used in conjunction with the laser procedure. Furthermore, it is undisputed that the plaintiff already had undergone retrobulbar anesthesia when he consented to the second procedure, and that he had been told that the second procedure would follow the same procedure as the first, including the retrobulbar anesthesia. We also reject the plaintiffs claim that the defendant performed a different procedure than the one to which the plaintiff consented. He argues that, even if he consented to the retrobulbar anesthesia performed in the first procedure, he did not consent to the perforation of his eye during the second procedure. The plaintiffs verbal consent to the second procedure, however, was not negated by the fact that the procedure itself was performed unsuccessfully or that a complication occurred. "The consent must be to the actor's conduct or to substantially the same conduct, rather than to the invasion that results from it." See 4 Restatement (Second), Torts § 892A, comment (e), p. 367 (1979). Thus, the focus of the consent is on the conduct or procedure to be performed, not its consequences, as the plaintiff suggests. See id., § 892A, comments (c) and (e), pp. 365-67; id., § 892B, comment (c), p. 371. Alth...