Logan v. Greenwich Hosp. Ass'n

• Decision Date: 06 September 1983
• Citation: 191 Conn. 282,465 A.2d 294
• Court: Connecticut Supreme Court
• Parties: , 38 A.L.R.4th 879 Martha LOGAN v. GREENWICH HOSPITAL ASSOCIATION et al.

Page 294

465 A.2d 294

191 Conn. 282, 38 A.L.R.4th 879

Martha LOGAN v. GREENWICH HOSPITAL ASSOCIATION et al.

Supreme Court of Connecticut.

Argued June 3, 1983.

Decided Sept. 6, 1983.

Charles W. Fleischmann, Bridgeport, with whom, on brief, was Keith D. Dunnigan, Bridgeport, for appellant (plaintiff).

Ronald D. Williams, Bridgeport, for appellees (named defendant and defendant Forbes Delany).

Gregory C. Willis, Bridgeport, with whom, on brief, was Bruce M. Killion, Bridgeport, for appellee (defendant Peter Bogdan).

W. Patrick Ryan, Stamford, with whom, on brief, was Charles A. Deluca, Stamford, for appellee (defendant Marc E. Newberg).

Before HEALEY, PARSKEY, SHEA, GRILLO and BIELUCH, JJ.

SHEA, Associate Justice.

In this medical malpractice action the trial court directed a verdict for the defendant hospital and for one of the three doctors whom the plaintiff had named as defendants. The jury returned a verdict for the other two defendant doctors. The plaintiff has appealed, claiming error in the direction of the verdicts and in the charge to the jury. The principal issue raised involves the propriety of the court's instruction that the duty of a physician to advise a patient of possible alternatives in obtaining an informed consent to a contemplated operative procedure does not require the disclosure of a more hazardous alternative. We find error in this instruction and order a new trial limited to the absence of informed consent theory of the complaint. We affirm, however, the direction of a verdict for two of the defendants as well as the verdict reached by the jury for one of the defendants whose request for a directed verdict was denied.

The evidence was that the defendant Marc E. Newberg, a specialist in internal medicine, first met the plaintiff in July, 1971, following the birth of her twin children at the Greenwich Hospital. After her discharge from the hospital on August 4, 1971, the plaintiff continued to consult Newberg because of continued pain, swelling and a decreased range of motion. She was hospitalized for ten days in February, 1972, because of pain in her neck, shoulders, arms, and legs which interfered with her sleeping.

In August, 1972, Newberg advised the plaintiff that she had systemic lupus erythematosis (lupus). In October, 1972, he advised her to undergo a kidney biopsy to determine the extent of lupus involvement in her kidneys. He explained that the biopsy was a simple procedure, which would be carried out under a local anesthetic, that she might suffer some bleeding and discomfort, but that she would be able to leave the hospital in a day or two if there were no complications. Newberg described the operation in a general way as consisting of the insertion of a surgical needle into her back in order to obtain a specimen of kidney tissue. He also indicated that Peter Bogdan, a urologist, would perform the operation and would describe the details more fully. The only complication which Newberg mentioned was the possibility of considerable pain and bleeding for which surgery might be necessary. He did not discuss the alternative of an open biopsy, which would require an incision and would be conducted under general anesthesia, because he did not consider that procedure advisable. He never mentioned the danger that the plaintiff's gall bladder might be punctured during the operation, an injury which did in fact occur.

As the attending physician, Newberg admitted the plaintiff to the Greenwich Hospital on October 31, 1972. On the evening of November 2, 1972, the defendant Peter Bogdan visited the plaintiff in her room at the hospital to discuss the operation to be performed the next morning. He told her that there might be some bleeding and that there was a risk of hemorrhaging and of losing a kidney. The alternative of an open biopsy procedure under a general anesthetic was not mentioned, although Bogdan had performed such operations previously and conceded that it was a more controlled procedure in terms of visualizing the kidney. He did not consider this procedure to be a viable alternative for the plaintiff, however, because there is a greater risk of complications, especially those involving general anesthesia. After Bogdan had departed, the plaintiff, in accordance with the rules of the hospital, signed a written form consenting to the surgical procedure which had been described.

The next morning the plaintiff was taken to a room in the x-ray department of the hospital where Bogdan and a student nurse were in attendance. The defendant Forbes Delaney, the director of radiology at the hospital, was also present for the purpose of operating the fluoroscopic equipment which was necessary to provide a view of the kidney and the needle while the biopsy was being performed. Bogdan explained the procedure, advising the plaintiff that she would lie prone upon an x-ray table with a pillow under her upper abdomen and that he would give her instructions throughout the procedure.

The fluoroscopic equipment used consisted of a tube underneath the table on which the patient would lie. X-rays would pass through the table and the body of the patient onto a fluoroscent screen augmented by a television system which improved the clarity of the image. Because the screen must be positioned above and rather close to the portion of the body being visualized there is insufficient space to allow for manipulation of the biopsy needle and the screen can be used only intermittently. The fluoroscope is not energized any longer than necessary in order to minimize radiation to the patient and the hands of the surgeon.

After the plaintiff had been placed upon the table, Bogdan injected a local anesthetic into the kidney region by using a small gauge anesthesia needle. He then inserted the biopsy needle and, using the fluoroscopic screen between six and eight times, he located the kidney and extracted a tissue specimen. After examining the specimen he concluded that it was inadequate. He made a second attempt to obtain a piece of kidney tissue, advising the plaintiff beforehand and obtaining her consent. He adjusted the biopsy needle in order to obtain a deeper piece of kidney tissue and once again inserted it. In the course of this procedure the plaintiff suddenly felt pain far more severe than previously experienced and the needle was withdrawn before the tissue specimen could be obtained. During abdominal surgery on November 6, 1972, to determine the cause of the abdominal pain which the plaintiff continued to suffer following the biopsy procedure, it was discovered that her gall bladder had been punctured and it was removed.

The complaint was in two counts, the first being directed against the defendant hospital and the second against the three doctors who in some manner had been connected with the biopsy procedure. One of the specifications of negligence in each count was the failure "to obtain the plaintiff's intelligent and informed consent to the performance of a percutaneous renal biopsy."

I

The plaintiff's first claim of error involves the charge upon the absence of informed consent as alleged in the complaint, particularly with respect to the duty of a physician to advise a patient of feasible alternatives. ¹ The court instructed the jury that the duty to give a patient all information material to the decision to undergo an operation includes the obligation to advise of feasible alternatives. The charge continued: "Now the duty to warn of alternatives exists only when there are feasible alternatives available. An alternative that is more hazardous is not a viable alternative." (Emphasis added.) The plaintiff excepted to the italicized sentence of the charge as removing from the patient the decision of which alternative procedure was the least dangerous. The same charge was repeated in response to a request of the jury, after they commenced deliberations, for a further definition of the standard of care. Again the plaintiff excepted to that part of the instructions.

We have not had previous occasion to consider substantively ² the doctrine of informed consent as a basis for malpractice liability of a physician. In some of our cases, where the claim against the physician was contractual in nature, we have recognized the importance of informing the patient of certain aspects of the contemplated treatment or surgical procedure. See Giambozi v. Peters, 127 Conn. 380, 385, 16 A.2d 833 (1940); Britton v. Hartshorn, 113 Conn. 484, 488, 156 A. 48 (1931). We have approved 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." Schmeltz v. Tracy, 119 Conn. 492, 495-96, 177 A. 520 (1935) (quoting, Cardozo, J., in Schloendorff v. New York Hospital, 211 N.Y. 125, 129-30, 105 N.E. 92 (1914), overruled on other grounds), Bing v. Thunig, 2 N.Y.2d 656, 163 N.Y.S.2d 3, 143 N.E.2d 3 (1957). "[I]f the lack of consent was established, the removal of the moles was in itself a trespass and had the legal result of an assault." Schmeltz v. Tracy, supra, 119 Conn. at 495, 177 A. 520.

The theory of battery as a basis for recovery against a physician has generally been limited to situations where he fails to obtain any consent to the particular treatment or performs a different procedure from the one for which consent has been given, or where he realizes that the patient does not understand what the operation entails. Cobbs v. Grant, 8 Cal.3d 229, 240, 104 Cal.Rptr. 505, 502 P.2d 1 (1972); 4 Restatement (Second), Torts § 892B, comment i; note, "Informed Dissent: A New Corollary to the Informed Consent Doctrine?" 57 Chi.Kent L.Rev. 1119, 1122 n. 18 (1981). The failure to make a sufficient disclosure, which is ordinarily the basis for claiming lack of informed consent, has been regarded by most courts...