Torres v. Carrese

• Decision Date: 22 April 2014
• Docket Number: No. 34350.,34350.
• Court: Connecticut Court of Appeals
• Parties: Erika TORRES v. Alexander A. CARRESE et al.

149 Conn.App. 596

90 A.3d 256

Erika TORRES

v.Alexander A. CARRESE et al.

No. 34350.

Appellate Court of Connecticut.

Argued Oct. 18, 2013.

Decided April 22, 2014.

Jonathan Perkins, Woodbridge, with whom were Wendi Kowarik and, on the brief, Karen L. Dowd and Brendon P. Levesque, Hartford, for the appellant-cross appellee (plaintiff).

James F. Biondo, with whom, on the brief, was Audrey D. Medd, Stamford, for the appellee-cross appellant (named defendant).

David J. Robertson, with whom, on the brief, were Madonna A. Sacco and Jeremy P. Chen, Bridgeport, for the appellee-cross appellant (defendant Abraham J. Yaari).

BEACH, BEAR and PETERS, Js.

BEACH, J.

This appeal arises from a medical malpractice action brought by the plaintiff, Erika Torres, against the defendants, Alexander A. Carrese and Abraham J. Yaari, board certified obstetrician-gynecologists. The plaintiff claims: (1) the trial court erred in dismissing her professional negligence claims against both defendants on the ground that the written opinion letter that she attached to her complaint did not satisfy the requirements of General Statutes § 52–190a; and (2) the trial court erred in granting the defendants' motions for summary judgment as to her claims against both defendants alleging lack of informed consent. We affirm the judgment of the trial court.

The following facts, which were undisputed for the purpose of summary judgment, and procedural history are relevant to our disposition of the plaintiff's claims. Carrese was the plaintiff's obstetrician-gynecologist from the time the plaintiff was sixteen years old. Carrese successfully performed two cesarean sections on the plaintiff for her two prior pregnancies. In 2004, the plaintiff became pregnant with her third child. The plaintiff was scheduled to deliver her third child in September, 2004. During her 2004 pregnancy, Carrese and the plaintiff understood that her third child would be delivered by cesarean section. In the fourth or fifth month of her pregnancy, the plaintiff began to experience pain, bleeding, and cramping. Carrese diagnosed the plaintiff to have the condition of placenta previa. ¹ Carrese described the condition as “placenta before baby” and explained to the plaintiff that the placenta was blocking the path out of the womb.

On May 28, 2004, the plaintiff presented at Bridgeport Hospital with signs of vaginal bleeding and was seen by Yaari for the first time. While the plaintiff was dressed and sitting in bed, she informed a nurse that she wanted to leave. The plaintiff signed herself out of the hospital against medical advice.

In August, 2004, prior to leaving Connecticut for a vacation, Carrese arranged for Yaari to cover his patients. On August 5, 2004, while Carrese was on vacation, the plaintiff went into labor. The plaintiff presented at St. Vincent's Medical Center in Bridgeport, thirty-five weeks pregnant with vaginal bleeding and uterine contractions. The plaintiff was seen by Yaari. Sometime after the plaintiff was admitted, Yaari diagnosed the plaintiff to have the condition of placenta previa. Yaari delivered the plaintiff's third child by cesarean section.

As the court related, “After performing the cesarean section, Yaari discovered that the plaintiff in fact had placenta percreta and that the placenta had invaded the wall of the bladder causing substantial bleeding, [and] requiring a hysterectomy. The contemporaneous hospital record signed by Yaari further state[d] that the plaintiff ‘was taken to the operating room and a cesarean section was performed. A live baby girl was delivered.... Because of the severe bleeding that we could not prevent even though the incision on the uterus was in the fundal area, we had to pursue a ... hysterectomy. Because of the location of the placenta at the lower level of the uterus, it penetrated the posterior wall of the bladder and thus was removed with the uterus and we called for intraoperative urology evaluation. The urology team arrived ... and the patient had later on a reconstruction of the bladder’....”

In September, 2006, the plaintiff served this medical malpractice action on the defendants, Carrese and Yaari.² The complaint alleged that each defendant was “a duly licensed physician engaged in the practice of medicine in the State of Connecticut and a specialist in the field of obstetrics and/or gynecology.” ³ The complaint alleged that the defendants were negligent in their obstetric care of the plaintiff. Specifically, count one alleged that Carrese, who had been the plaintiff's obstetrician since she was sixteen and had provided her with prenatal care for several months prior to August 5, 2004, was negligent in providing prenatal care to the plaintiff because he (1) “failed to maintain adequate medical records pertaining to the plaintiff's condition of placenta previa,” (2) failed to detect the plaintiff's condition of placenta previa and/or placenta accreta, (3) “failed to convey to other treating doctors the fact that the plaintiff suffered from [placenta previa and/or placenta accreta],” (4) “failed to undertake necessary diagnostic testing such as ultrasounds,” (5) “failed to advise the plaintiff of the risk that her bladder would be injured during the cesarean section and/or related procedures,” and (6) failed to recognize that the plaintiff's condition required the intervention of a urologist and, in failing-refusing to procure the services of a urologist during the prenatal period, undertook to provide medical services which were within the specialty of a urologist. The plaintiff claimed that as a result of Carrese's negligent conduct she sustained damage to her bladder and uterus that has rendered her permanently incontinent, caused her pain and suffering, and prevented her from obtaining gainful employment, and incurred medical expenses.

Count two alleged that Yaari, the obstetrician who performed the plaintiff's cesarean section, was negligent in his obstetric care of the plaintiff because he (1) “failed to take the proper precautions during the plaintiff's cesarean section and/or related procedures as to avoid injuring her bladder (including arranging for the delivery to occur in the appropriate facility and arranging for a urologist to deal with the potential placenta accreta condition),” (2) “failed to undertake the appropriate investigations to determine whether the plaintiff suffered from placenta previa and/or placenta accreta,” (3) “caused injury to the plaintiff's bladder,” and (4) “undertook to perform medical services which were within the specialty of a urologist.” Count two also alleged that Yaari “failed to advise the plaintiff of the risk that her bladder would be injured during the cesarean sectionand/or related procedures....” The plaintiff claimed that as a result of Yaari's negligent conduct, she was “forced to undergo a hysterectomy and can no longer bear children,” her “bladder is damaged and she is incontinent,” she has “undergone anguish, pain and suffering” and incurred medical expenses, she has been unable to obtain gainful employment and to participate in many of life's activities, and she will “in the future undergo further debilitating and painful treatments and undergo further anguish, pain and suffering and medical expenses.”

With her complaint, the plaintiff filed a good faith certificate signed by her attorney, who represented therein that he had made a reasonable inquiry into the circumstances of the plaintiff's claims and that, on the basis of that inquiry, he believed in good faith that the defendants had been negligent in their treatment of the plaintiff. Additionally, pursuant to § 52–190a (a), the plaintiff submitted a written opinion letter of a medical expert, dated September 5, 2006, who had reviewed the defendants' care of the plaintiff and rendered his opinion as to that care as well as to the care of the plaintiff's treating urologists.⁴ Jay Motola, a board certified urologist, concluded that the plaintiff's urologists had provided her good care. With respect to the defendants, Motola opined in relevant part: “On the other hand, the obstetricians involved in the care of this case need to be further scrutinized. Clearly the root cause of the subsequent urinary fistula does not lie with the urologic care that was provided, but rather the original injury to the urinary tract that the obstetricians created. It is my opinion to a reasonable degree of medical certainty, that the obstetricians, Drs. Carrese and Yaar[i] breached the standard of care due to the [plaintiff] by causing the original injury to her urinary tract. It is this injury that has rendered the [plaintiff] in the state that she is presently in and therefore the liability lies on the part of the treating obstetricians.... It is also my opinion that ... Carrese breached the prevailing standard of care by failing to maintain adequate medical records [while] taking care of [the plaintiff].”

On November 13, 2006, Yaari filed a motion to dismiss the plaintiff's complaint on the ground that the written opinion letter submitted by the plaintiff was not written by a “similar health care provider,” as defined by General Statutes § 52–184c and as mandated by § 52–190a, and therefore, dismissal was proper pursuant to § 52–190a (c).⁵ On November 15, 2006, counsel for Carrese filed a motion to dismiss on similar grounds. ⁶ According to the court, “Oral argument was heard on January 2, 2007, at which time the court, Jones, J., granted Yaari's motion because it was unopposed ... [and] Carrese's motion was marked off because the plaintiff's counsel was absent. On the same day, the plaintiff filed an objection to ... Yaari's motion. The plaintiff then, on January 3, 2007, filed a motion to set aside the dismissal as to ... Yaari and for reargument, which was granted by the court, Jones, J., on January 22, 2006. On February 26, 2007 ... Carrese filed another motion to dismiss ... which was in all respects...