Wood v. Rutherford

• Decision Date: 08 January 2019
• Docket Number: AC 40142
• Citation: 187 Conn.App. 61,201 A.3d 1025
• Court: Connecticut Court of Appeals
• Parties: Lauren WOOD v. Thomas J. RUTHERFORD et al.

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

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.

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 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 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

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 good 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 ... 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

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 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 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 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 key element is that a medical treatment was provided." Because the defendant provided a medical treatment to remedy her labial agglutination, the plaintiff argued that he was obligated to apprise her of "any material risks or alternatives" prior to embarking on that course of treatment. In support of her assertion that the defendant provided a medical treatment, the plaintiff appended to her objection (1) a copy of her answers to certain interrogatories, (2) affidavits of the plaintiff and her mother, Janice Andersen, and (3) copies of five Superior Court decisions.

The defendant filed a reply to the plaintiff's objection on February 1, 2017, in which he maintained that the plaintiff's consent to the laser ablation procedure included her consent to the postoperative examination, as that examination was "not a separate course of therapy from the operation." The defendant further submitted that "[t]he uncontroverted evidence shows that [he] had to separate the plaintiff's labia, which were agglutinated, in order to examine the surgical site." A copy of the plaintiff's signed consent to the laser ablation procedure was included as an exhibit to that reply.⁹

The court held a hearing on the motion for summary judgment on February 6, 2017, at which the defendant's counsel contended that the May 14, 2014 postoperative examination did not involve a procedure of any kind. The court then inquired as to whether the plaintiff's counsel had "any authority that says that this type of thing is a procedure"; counsel...