Shortell v. Cavanagh

• Decision Date: 15 March 2011
• Docket Number: No. 18434.,18434.
• Citation: 300 Conn. 383,15 A.3d 1042
• Court: Connecticut Supreme Court
• Parties: David SHORTELLv.Norman CAVANAGH et al.

300 Conn. 383

15 A.3d 1042

David SHORTELL

v.Norman CAVANAGH et al.

No. 18434.

Supreme Court of Connecticut.

Argued Jan. 11, 2011.Decided March 15, 2011.

James V. Sabatini, Newington, for the appellant (plaintiff).Lorinda S. Coon, with whom were John M. O'Donnell, and, on the brief, Herbert J. Shepardson, Hartford, for the appellee (named defendant).ROGERS, C.J., and NORCOTT, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.EVELEIGH, J.

This appeal arises from an action in which the plaintiff, David Shortell, claims that he sustained injuries as a result of the failure of the named defendant, Norman Cavanagh, a dentist, to obtain his informed consent to a dental procedure.¹ On appeal,² the plaintiff asserts that the trial court improperly dismissed his complaint for failure to comply with General Statutes § 52–190a ³ because he failed to include a good faith certificate and written opinion letter from a similar health care provider. We conclude that § 52–190a does not apply to a claim of lack of informed consent because, pursuant to this court's construction of the phrase “medical negligence” in the statute, as set forth in Dias v. Grady, 292 Conn. 350, 359, 972 A.2d 715 (2009), a claim of lack of informed consent is not a medical negligence claim. Accordingly, we reverse the judgment of the trial court.

In his complaint, the plaintiff alleges the following facts, the truth of which we assume for purposes of this appeal. In December, 2006, the defendant performed a dental implant procedure on the plaintiff and administered anesthesia to the plaintiff. The defendant failed to obtain the plaintiff's informed consent prior to the performance of the implant procedure by failing to disclose the significant risks associated with the procedure. The plaintiff thereafter sustained injuries, including nerve damage, physical pain and suffering, right jaw numbness and mental anguish.

Thereafter, the plaintiff filed a complaint alleging that the defendant had committed negligence by failing to inform him of the significant risks involved in the implant procedure. The plaintiff further alleged that the risks were “significant enough that a reasonable person in the plaintiff's position would have withheld consent to the procedure.” The plaintiff did not attach to the complaint either a good faith certificate or the written opinion of a similar health care provider.

The defendant filed a motion to dismiss the complaint because of the plaintiff's failure to attach a written opinion letter from a similar health care provider as “mandated by [§ 52–190a].” The plaintiff objected to the motion to dismiss on the ground that a “failure to obtain informed consent cause of action does not require a written opinion from a similar health care provider to be attached to the complaint and it does not require a certificate of good faith.” The trial court granted the motion to dismiss on the ground that “[g]iving the information about risk is a necessary part of the appropriate operating procedure and ... failure to give it and proceeding to operate constitutes malpractice.” This appeal followed.

On appeal, the plaintiff contends that § 52–190a is not applicable to his claim of lack of informed consent. Specifically, the plaintiff asserts that because § 52–190a requires a good faith belief that “there has been negligence in the care or treatment of the claimant,” it only applies to claims of medical negligence. The plaintiff further claims that because the failure to obtain informed consent does not relate to medical diagnosis, treatment or the exercise of medical judgment, a failure to obtain informed consent does not constitute medical negligence. The defendant counters that obtaining informed consent is part of “care and treatment” and, therefore, § 52–190a applies to claims for lack of informed consent. We agree with the plaintiff on the basis of our decision in Dias v. Grady, supra, 292 Conn. at 359, 972 A.2d 715, wherein we concluded that the phrase “ ‘medical negligence,’ as used in § 52–190a, means breach of the standard of care and was not intended to encompass all of the elements of a cause of action for negligence.”

The meaning of § 52–190a is a question of law over which our review is plenary. State v. Peters, 287 Conn. 82, 87, 946 A.2d 1231 (2008). In examining the meaning of a particular statute, we are guided by fundamental principles of statutory construction. See General Statutes § 1–2z; see also Testa v. Geressy, 286 Conn. 291, 308, 943 A.2d 1075 (2008) (“[w]hen construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature” [internal quotation marks omitted] ).

We begin our analysis with the language of the statute. Section 52–190a (a) provides in relevant part that, in any medical malpractice action, “[n]o civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant.... [T]he claimant or the claimant's attorney ... shall obtain a written and signed opinion of a similar health care provider, as defined in [General Statutes §] 52–184c, which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion....”

In Dias v. Grady, supra, 292 Conn. at 356, 972 A.2d 715, we noted that § 52–190a (a) does not define the term medical negligence, and the phrase is susceptible to more than one reasonable interpretation. Specifically, we opined that the term negligence may refer “to the cause of action consisting of the elements of duty, breach of the standard of care, causation and damages....” (Internal quotation marks omitted.) Id. Therefore, we examined both the purpose and the history of § 52–190a. We concluded that the initial purpose of the statute “was to prevent frivolous medical malpractice actions.” Id., at 357, 972 A.2d 715. Further, we determined that the amendment requiring a written opinion from a similar health care provider; see Public Acts 2005, No. 05–275, § 2(a); “was intended to address the problem that some attorneys, either intentionally or innocently, were misrepresenting in the certificate of good faith the information that they obtained from the experts.” Dias v. Grady, supra, at 358, 972 A.2d 715. “With this background in mind, we conclude[ed] that the phrase medical negligence, as used in § 52–190a (a), means breach of the standard of care and was not intended to encompass all of the elements of a cause of action for negligence.” (Internal quotation marks omitted.) Id., at 359, 972 A.2d 715.

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. Logan v. Greenwich Hospital Assn., 191 Conn. 282, 293, 465 A.2d 294 (1983).

In Dias v. Grady, supra, 292 Conn. at 359, 972 A.2d 715, we determined that the term medical negligence in § 52–190a referred to a breach of the standard of care. In view of the fact that we were defining the term medical negligence, we referred to a medical standard of care and not a lay standard of care. We must interpret § 52–190a so that it does not lead to absurd results. It would not be logical that an opinion from a similar health care provider would be required to commence an action of this nature, when the testimony of a medical expert would not be necessary at trial to prove the standard of care and its breach. We have often recognized that “those who promulgate statutes ... do not intend to promulgate statutes ... that lead to absurd consequences or bizarre results.” (Internal quotation marks omitted.) State v. Harrison, 228 Conn. 758, 765, 638 A.2d 601 (1994). As we stated in Dias v. Grady, supra, at 361, 972 A.2d 715, in rejecting a requirement that a similar health care provider give an opinion as to causation because a medical opinion is not required for proving causation, “requiring a similar health care provider to give an opinion ... at the prediscovery stage of litigation pursuant to § 52–190a when a similar health care provider is not required to give such an opinion at trial pursuant to § 52–184c would bar some plaintiffs who could prevail at trial from even filing a complaint. Because this would lead to a bizarre result, we reject this claim.” Likewise, in an informed consent case, the plaintiff is not required to present the testimony of a similar health care provider regarding the standard of care at trial. Therefore, to require an opinion from a similar health care provider at the inception of the case would lead to a bizarre result, which we cannot countenance.

Indeed, the focus of a medical malpractice case is often a dispute involving the correct medical standard of care and whether there has been a deviation therefrom. Conversely, the focus in an action for lack of informed consent is often a credibility issue between the physician and the patient regarding whether the patient had been, or should have been, apprised of certain risks prior to the medical procedure.

The defendant contends that this court recently affirmed an Appellate...