Wood v. Rutherford, AC 40142

CourtAppellate Court of Connecticut
Writing for the CourtELGO, J.
Citation187 Conn.App. 61,201 A.3d 1025
Parties Lauren WOOD v. Thomas J. RUTHERFORD et al.
Docket NumberAC 40142
Decision Date08 January 2019

187 Conn.App. 61
201 A.3d 1025

Lauren WOOD
v.
Thomas J. RUTHERFORD et al.

AC 40142

Appellate Court of Connecticut.

Argued May 22, 2018
Officially released January 8, 2019


201 A.3d 1029

John L. Cesaroni, with whom was James R. Miron, Bridgeport, for the appellant (plaintiff).

Tadhg Dooley, with whom, on the brief, was Jeffrey R. Babbin, New Haven, for the appellee (named defendant).

Sheldon, Elgo and Flynn, Js.

ELGO, J.

187 Conn.App. 63

This case concerns the conduct of a physician who discovered a complication during a postoperative examination. The plaintiff, Lauren Wood, appeals from the trial court's dismissal of her August 25, 2015 amended complaint, which alleged one count of battery and one count of negligent infliction of emotional distress against the defendant, Thomas J. Rutherford, M.D.1 The plaintiff claims that the court improperly concluded that those counts sounded in medical malpractice and, thus, required compliance with

187 Conn.App. 64

General Statutes § 52-190a. The plaintiff also challenges the propriety of the summary judgment rendered by the court on her February 8, 2016 revised complaint, which alleged that the defendant failed to obtain her informed consent before embarking on a course of treatment for a complication discovered during a postoperative examination. We agree with the

201 A.3d 1030

plaintiff that the court improperly dismissed the battery and negligent infliction of emotional distress counts of her August 25, 2015 amended complaint, as those counts were predicated on an alleged lack of informed consent. We further conclude that a genuine issue of material fact exists as to whether a substantial change in circumstances occurred during the course of medical treatment that necessitated a further informed consent discussion between the parties, rendering summary judgment inappropriate. We, therefore, reverse the judgment of the trial court.

The operative complaints, the plaintiff's August 25, 2015 amended complaint and her February 8, 2016 revised complaint, contain similar factual allegations. In both, the plaintiff alleged that, at all relevant times, she was a patient of the defendant, a licensed gynecological oncologist. She further alleged that "[o]n April 25, 2014, the plaintiff underwent a surgical procedure known as a CO2 laser ablation2 of the vulva [to remove precancerous growths] that was performed by [the defendant] at Yale University Gynecologic Center .... On May 14, 2014, upon the advice of [the defendant], the plaintiff returned to Yale University Gynecologic Center for a postoperative examination. During the postoperative examination ... [the defendant] discovered that the plaintiff's labia [were] agglutinated.3

187 Conn.App. 65

During the postoperative examination ... [the defendant], without any warning or notice to or consent from the plaintiff ... forcefully inserted his fingers through the plaintiff's agglutinated labia and into her vagina." (Emphasis added; footnotes added.) The plaintiff further alleged that she sustained injuries as a result thereof, including "scarring and impairment to her vulva and vagina ...."

The plaintiff commenced this action in 2015. Her August 25, 2015 amended complaint contained two counts against the defendant that alleged that his conduct during the postoperative examination constituted battery and negligent infliction of emotional distress. In response, the defendant filed a motion to dismiss, in which he argued that "regardless of the caption applied to them by the plaintiff, both of the claims ... are for medical malpractice. As such, the plaintiff is required by [§] 52-190a4 to attach to the complaint a

187 Conn.App. 66

good

201 A.3d 1031

faith certificate and written opinion letter. The plaintiff's failure to attach these documents is fatal to her claim and mandates that it be dismissed." (Footnote added.)

The court heard argument from the parties on that motion on October 19, 2015, at which the plaintiff's counsel acknowledged that the plaintiff had consented to the postoperative examination on May 14, 2014, but not to the defendant forcefully separating her agglutinated labia without warning or notice to her.5 The plaintiff's counsel emphasized that, in her complaint, the plaintiff did not "allege that there was a deviation of the standard of care.... We don't allege negligence in this case." Counsel then stated that count one of the complaint "is not a negligence case. Count one is a battery case, and the theory of battery as a basis for recovery" against the defendant was his failure to obtain informed consent. Counsel continued: "We don't claim negligence at all. Our claim here is that [the plaintiff] had no knowledge ... and was not informed ... and didn't consent to [the defendant] sticking his fingers into her vagina the way he did ...." In response, the court stated in relevant part: "[Y]ou certainly have every right to plead that this was a surgical procedure, that there was a lack of informed consent and, as a result of a lack of informed consent, the plaintiff sustained damages .... That you can do. You can't transform

187 Conn.App. 67

... what amounts to a medical negligence or malpractice claim into a tortious action for purposes of circumventing § 52-190a...." The court then made an express finding that the three factors determinative of whether a negligence claim sounds in medical malpractice6 all were satisfied. The court thus granted the motion to dismiss "without prejudice to the plaintiff filing a separate action claiming a lack of informed consent ...."7

201 A.3d 1032

Nine days later, the plaintiff requested leave to amend her complaint pursuant to Practice Book § 10-60, which the court granted. The plaintiff thereafter filed an amended complaint claiming that the defendant had failed to obtain her informed consent before embarking on a course of treatment for a complication that he discovered during the postoperative examination. More specifically, the plaintiff alleged in her February 8, 2016

187 Conn.App. 68

revised complaint that the defendant's actions during the postoperative examination "violated his duty to provide the plaintiff with information that a reasonable patient would have found material for making a decision to embark upon the course of treatment performed by [the defendant] in that: (a) [the defendant] failed to inform the plaintiff as to the nature of the procedure he performed because he did not give her any warning or explanation of said procedure; (b) [the defendant] failed to disclose any risks and hazards of the procedure; (c) [the defendant] failed to discuss any alternatives to the procedure he performed where, upon information and belief, other procedures were available; and (d) [the defendant] failed to disclose any anticipated benefits of the procedure he performed." In his answer, the defendant admitted that, while conducting the postoperative examination, he discovered that the plaintiff's labia were agglutinated. He further admitted that "during the postoperative examination, [he] separated the skin of the labia by inserting a finger through the agglutination."8 The defendant otherwise denied the

187 Conn.App. 69

substance of the plaintiff's lack of informed consent claim.

On October 3, 2016, the plaintiff filed a certificate of closed pleadings with the trial court, in which she claimed a jury trial. The defendant filed a motion for summary judgment on November 15, 2016, arguing that "[t]here is no triable issue of fact ... because the incident in question—the separation of agglutinated labia during a postoperative examination of the plaintiff's

201 A.3d 1033

vagina—was not a ‘procedure’ requiring consent. Even if it [was], the plaintiff consented to [the defendant] performing the vaginal exam, which necessarily included separating her labia to observe the surgical site." That motion was accompanied by three exhibits, including the defendant's November 4, 2016 affidavit and his August 17, 2016 responses to the interrogatories of the plaintiff.

On January 23, 2017, the plaintiff filed an objection to the motion for summary judgment, arguing that the defendant, after discovering the complication during the postoperative examination, "performed an invasive procedure, which constitutes a course of treatment triggering a physician's duty to inform." The plaintiff noted that the "cases that find a course of treatment that triggers a physician's duty to provide informed consent share the fact that they involve the physician providing, or attempting to provide, a therapeutic remedy to the plaintiff. The mechanism of the treatment itself is not important, but rather, the...

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4 practice notes
  • Kissel v. Ctr. for Women's Health, P.C., AC 42469
    • United States
    • Appellate Court of Connecticut
    • June 29, 2021
    ...Conn. 6 (trial court was required to dismiss action as consequence Page 22of failure to provide opinion letter); Wood v. Rutherford, 187 Conn. App. 61, 73, 201 A.3d 1025 (2019) (failure to attach proper written opinion letter mandates dismissal of action); Ugalde v. Saint Mary's Hospital, I......
  • Ashley v. City of Bridgeport, Civil No. 3:17-cv-724(AWT)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • March 31, 2021
    ...in certain scenarios, Connecticut courts recognize the emergency exception to the doctrine of informed consent. See Wood v. Rutherford, 187 Conn. App. 61, 92 (2019)("The emergency exception has been recognized by courts across the country. . . . Although our appellate courts have not had oc......
  • Lavoie v. Manoharan, CV146027376
    • United States
    • Superior Court of Connecticut
    • November 27, 2019
    ...Beverly Enterprises-Connecticut, 209 Conn. 692, 701 (1989); Stamford Hospital v. Vega, 236 Conn. 646, 665-66 (1996); Wood v. Rutherford, 187 Conn.App. 61, 82 (2019). Add to that the near-impossibility of predicting future dangerousness, either to oneself or to another, a factor recognized b......
  • Tierney v. Elim Park Baptist Home, Inc., CV196092905
    • United States
    • Superior Court of Connecticut
    • October 7, 2019
    ...is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment." Wood v. Rutherford, 187 Conn.App. 61, 67 n. 6, 201 A.3d 1025 (2019). (Internal quotation marks and citation omitted.) Tierney does not dispute that she has sued Elim in its capacity as......
4 cases
  • Kissel v. Ctr. for Women's Health, P.C., AC 42469
    • United States
    • Appellate Court of Connecticut
    • June 29, 2021
    ...Conn. 6 (trial court was required to dismiss action as consequence Page 22of failure to provide opinion letter); Wood v. Rutherford, 187 Conn. App. 61, 73, 201 A.3d 1025 (2019) (failure to attach proper written opinion letter mandates dismissal of action); Ugalde v. Saint Mary's Hospital, I......
  • Ashley v. City of Bridgeport, Civil No. 3:17-cv-724(AWT)
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • March 31, 2021
    ...in certain scenarios, Connecticut courts recognize the emergency exception to the doctrine of informed consent. See Wood v. Rutherford, 187 Conn. App. 61, 92 (2019)("The emergency exception has been recognized by courts across the country. . . . Although our appellate courts have not had oc......
  • Lavoie v. Manoharan, CV146027376
    • United States
    • Superior Court of Connecticut
    • November 27, 2019
    ...Beverly Enterprises-Connecticut, 209 Conn. 692, 701 (1989); Stamford Hospital v. Vega, 236 Conn. 646, 665-66 (1996); Wood v. Rutherford, 187 Conn.App. 61, 82 (2019). Add to that the near-impossibility of predicting future dangerousness, either to oneself or to another, a factor recognized b......
  • Tierney v. Elim Park Baptist Home, Inc., CV196092905
    • United States
    • Superior Court of Connecticut
    • October 7, 2019
    ...is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment." Wood v. Rutherford, 187 Conn.App. 61, 67 n. 6, 201 A.3d 1025 (2019). (Internal quotation marks and citation omitted.) Tierney does not dispute that she has sued Elim in its capacity as......

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