Sherwood-Armour v. Danbury Hospital

• Decision Date: 30 October 2003
• Docket Number: (X02) CV 96-0163786-S.
• Court: Connecticut Superior Court
• Parties: Robin Sherwood-Armour v. Danbury Hospital.

Page 1

Unpublished Opinion

Robin Sherwood-Armour v. Danbury Hospital.

(X02) CV 96-0163786-S.

Superior Court.

Judicial District of Waterbury, Complex Litigation Docket at Waterbury.

October 30, 2003.

RULING ON MOTION FOR SUMMARY JUDGMENT

SCHUMAN, JUDGE.

The plaintiff Robin Sherwood-Armour, alleges in her amended complaint that she became infected with the human immunodeficiency virus (HIV) from untested and contaminated blood administered during a transfusion at the defendant hospital on April 19, 1985, when she underwent elective spinal fusion surgery. The amended three-count complaint alleges, respectively, negligence, breach of fiduciary duty, and fraudulent concealment. The gravamen of the amended allegations is that the defendant failed to inform the plaintiff and her physician of the risks associated with a blood transfusion at that time.

In Sherwood v. Danbury Hospital, 252 Conn. 193, 746 A.2d 730 (2000) (Sherwood I), our Supreme Court reversed the court's decision in this case granting summary judgment to the defendant on statute of limitations grounds. The defendant has again moved for summary judgment, this time primarily on the ground that it has no duty to provide information relating to the process of obtaining informed consent from the patient. Because the existence of a duty is a question of law, see Murillo v. Seymour Ambulance Association, Inc., 264 Conn. 474, 478-79, 823 A.2d 1202 (2003), and summary judgment can enter if "the moving party is entitled to judgment as a matter of law," Practice Book §17-49, the court can adjudicate this matter on summary judgment.

I

In Petriello v. Kalman, 215 Conn. 377, 576 A.2d 474 (1990), the Supreme Court held that the "defendant hospital had no duty to obtain the plaintiff's informed consent for surgery to be performed by a nonemployee physician or to ensure that such consent was in writing . . ." Id., 385. Rather, "it was the responsibility of the [defendant physician], and his responsibility alone, to obtain the informed consent of his patient, prior to commencing any surgical procedure." Id., 387-88. See also id., 385 ("we have never held that [informed] consent must be given by the patient in writing or that a hospital, whose facilities are utilized by independent physicians, as a kind of surety, must guarantee that informed consent is obtained prior to the commencement of any surgical procedure").

In this case, the defendant argues that the plaintiff's repeated allegations in paragraph 10(b) through (h) of the first count that the defendant "failed to warn, inform and/or advise the Plaintiff's physician and/or the Plaintiff" of various risks associated with blood transfusions and various available alternatives to the procedure fall into the category of an informed consent claim under Petriello. (Complaint count one, ¶10(b)-(h).) The plaintiff counters that the issue is more one of a duty to provide crucial information or a failure to warn, which is part of the general duty to exercise reasonable care, and less one of obtaining informed consent prior to surgery.

The court agrees with the defendant's interpretation of the portion of paragraph 10(b) through (h) that alleges that the hospital failed to warn or provide information to the patient directly.¹ While it is true that the hospital, like any actor, has a general duty to exercise reasonable care, on summary judgment the court must evaluate the specific issues set forth in the complaint, which in this case allege a hospital's duty to provide information to the patient. See New Milford Savings Bank v. Roina, 38 Conn.App. 240, 244-45, 659 A.2d 1226, cert. denied, 235 Conn. 915, 665 A.2d 609 (1995). In this situation, the only purpose of providing the information or warning the patient is to assist her in deciding whether to agree to surgery, which is synonymous with the informed consent process. Further, requiring the hospital to warn or provide information directly to a patient under the care of an independent physician poses the same risk of interference with the doctor-patient relationship that informed consent decisions like Petriello seek to avoid. As one court has stated: "[imposing] upon a hospital the duty to inform would be to require a hospital to intervene into the physician/patient relationship [which would be] more disruptive than beneficial to [the] patient." (Internal quotation marks omitted.) Goss v. Oklahoma Blood Institute, 856 P.2d 998, 1007 (Okla.Ct.App. 1990). See also Roberson v. Menorah Medical Center, 588 S.W.2d 134, 137 (Mo.Ct.App. 1979) ("The presentation to the patient of risks involved in prospective surgery cannot but call for some very nice judgments . . . The physician alone is equipped to make the delicate judgments called for.") Thus, the plaintiff has alleged an informed consent claim in paragraph 10(b) through (h).

There is no factual dispute that the plaintiff's orthopedic surgeon, Dr. Dennis Ogiela, was not an employee of the defendant.² Accordingly, in the first instance, under Petriello, it was the duty of Dr. Ogelia rather than the defendant hospital to provide all relevant information to the plaintiff concerning her surgery.

On the other hand, in Zichichi v. Middlesex Memorial Hospital, 204 Conn. 399, 528 A.2d 805 (1987), the Supreme Court stated that "[t]he delivery of a service, such as a blood transfusion, requires the provider of that service to exercise reasonable care to avoid injury to the consumer of the service." Id., 410. The Court added: "If a plaintiff can show that the defect in the blood could reasonably have been detected or removed, the plaintiff may well be entitled to recover for the supplier's negligent failure to detect or remove the defect." Id. The Supreme Court in Sherwood I relied on these statements to conclude that "a hospital may be liable for negligently failing to inform a patient of the risks associated with the blood it has supplied for a transfusion." Sherwood I, supra, 252 Conn. 206. The Sherwood I court added that "there was a genuine issue of material fact with respect to whether the defendant committed an initial wrong upon the plaintiff by failing to inform her that the blood with which she was transfused had not been screened." Id.

An unqualified application of these statements in Sherwood I would require this court to find that the defendant hospital did have a duty to provide information to the plaintiff concerning the blood transfusion as part of the informed consent process. The difficulty with the language from Sherwood I, however, is that it did not address the holding of Petriello that a hospital has no duty to participate in the informed consent process for a patient of a nonemployee physician. Indeed, an examination of the Supreme Court briefs in Sherwood I reveals that neither party even cited Petriello. Nor did the Court cite Petriello in its opinion.

The central question, then, becomes whether to accept an unqualified application of Sherwood I or to construe it in a more limited fashion. The import of the plaintiff's position favoring an unqualified application of Sherwood I is that the Supreme Court overruled Petriello implicitly or limited it to procedures other than blood transfusions. Such action seems most unlikely. "A court should not overrule its earlier decisions unless the most cogent reasons and inescapable logic require it." Burger & Burger, Inc. v. Murren, 202 Conn. 660, 662, 522 A.2d 812 (1987). There are no cogent reasons for overruling or limiting Petriello here. As stated, the policy basis behind decisions like Petriello is the attempt to prevent interference with the doctor-patient relationship. This policy applies fully to blood transfusions. "A physician cannot inform a patient of all of the material risks of a surgical or operative procedure without also informing him of the risks involved with a blood transfusion where a transfusion is a potential part of the procedure." Jones v. Philadelphia College of Osteopathic Medicine, 813 F.Sup. 1125, 1130 (E.D.Pa. 1993). Accord Goss v. Oklahoma Blood Institute, supra, 856 P.2d 1007. Thus, there are no convincing reasons to hold that Petriello does not apply to blood transfusions.

Contrary to the position that the Supreme Court implicitly oven-tiled or limited Petriello, it is possible to reconcile Petriello, on the one hand, and Sherwood I and Zichichi on the other.³ The key to resolving the conflict between the cases lies in a close review of the Sherwood I opinion. Just prior to stating that a hospital has a duty to inform a patient of the risks associated with a blood transfusion, the Court recited three facts that it labeled "undisputed." Those facts were:

(1) prior to the plaintiff's transfusion, the Food and Drug Administration approved the ELISA test for screening units of blood for HIV antibodies; (2) Kranwinkel [the director of the hospital's blood bank] testified that he assumed that the plaintiff had been administered untested blood; and (3) no one from the hospital blood bank informed the plaintiff, prior to surgery, that the ELISA test was available for screening blood for the presence of HIV antibodies.

Sherwood I, supra, 252 Conn. 206. Of these three facts, the critical one is the third. Clearly, the import of the third fact is that the ELISA test was available to the hospital to test blood at the time that the hospital provided untested blood to the plaintiff. Indeed, the Appellate Court has interpreted Sherwood I in this fashion. In Nieves v. Cirmo, 67 Conn.App. 576, 787 A.2d 650, cert. denied, 259 Conn. 931, 793 A.2d 1085 (2002), the Appellate Court recounted the facts of Sherwood I as follows: "A test for screening blood existed prior to the plaintiff's receiving the transfusion, the defendant's employees assumed that the blood given to the plaintiff had not been tested, and no one associated with the defendant hospital informed the plaintiff that the blood had not been tested and that it could have been. (...