Torres v. Carrese

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ERIKA TORRES v. ALEXANDER
A. CARRESE ET AL.
(AC 34350)
Beach, Bear and Peters, Js.
Argued October 18, 2013—officially released April 22, 2014
(Appeal from Superior Court, judicial district of
Fairfield, Jones, J. [motions to dismiss]; Levin, J.
[motions to dismiss; summary judgment motions,
judgment].)
Jonathan Perkins, with whom were Wendi Kowarik
and, on the brief, Karen L. Dowd and Brendon P. Lev-
esque, for the appellant-cross appellee (plaintiff).
James F. Biondo, with whom, on the brief, was
Audrey D. Medd, for the appellee-cross appellant
(named defendant).
David J. Robertson, with whom, on the brief, were
Madonna A. Sacco and Jeremy P. Chen, for the appel-
lee-cross appellant (defendant Abraham J. Yaari).
Opinion
BEACH, J. This appeal arises from a medical malprac-
tice 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 defen-
dants on the ground that the written opinion letter that
she attached to her complaint did not satisfy the require-
ments of General Statutes § 52-190a; and (2) the trial
court erred in granting the defendants’ motions for sum-
mary judgment as to her claims against both defendants
alleging lack of informed consent. We affirm the judg-
ment 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 experi-
ence 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 vaca-
tion, 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 . . . hyster-
ectomy. 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 evalua-
tion. 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 com-
plaint 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 plain-
tiff’s condition required the intervention of a urologist
and, in failing-refusing to procure the services of a urol-
ogist 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 Car-
rese’s negligent conduct she sustained damage to her
bladder and uterus that has rendered her permanently
incontinent, caused her pain and suffering, and pre-
vented her from obtaining gainful employment, and
incurred medical expenses.
Count two alleged that Yaari, the obstetrician who
performed the plaintiff’s cesarean section, was negli-
gent 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 pla-
centa 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 section and/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 dam-
aged and she is incontinent,’’ she has ‘‘undergone
anguish, pain and suffering’’ and incurred medical
expenses, she has been unable to obtain gainful employ-
ment 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 certi-
fied urologist, concluded that the plaintiff’s urologists
had provided her good care. With respect to the defen-
dants, 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 [plain-
tiff] 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 pre-
vailing 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 Gen-
eral 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 objec-
tion to . . . Yaari’s motion. The plaintiff then, on Janu-
ary 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 identical to his prior
motion . . . .
‘‘Oral argument was heard a second time on February
26, 2007. . . . The defendants move[d] to dismiss the
[plaintiff’s] first amended complaint on the ground that
the first written opinion [letter] submitted by the plain-
tiff was not obtained from a ‘similar health care pro-
vider’ as mandated by § 52-190a. They argue[d] that the
plain language of § 52-190a (c) indicate[d] that [failure
to attach a sufficient written opinion letter was] ground
for dismissal of the action. They also contend[ed] that
the failure to attach an adequate medical opinion [was]
not a curable defect, and, therefore, the plaintiff’s
amended complaint, attaching the opinion of an [obste-
trician-gynecologist was] not properly before the court.
Furthermore, even if the amendment [was] effective,
the defendants argue[d] that the second opinion pro-
vided [was] sparse and [was] insufficient to meet the
statutory requirement that the opinion ‘include a
detailed basis for the formation of such opinion.’ ’’ (Cita-
tions omitted; footnotes omitted.) On April 4, 2007, the
court, Jones, J., denied the defendants’ motions to dis-
miss on the ground that an insufficient opinion letter,
as opposed to the absence of an opinion letter, was not
a sufficient ground for dismissal.7
On January 19, 2011, the case was called for trial.
On January 31, 2011, and February 10, 2011, after our
Supreme Court released its opinion in Bennett v. New
Milford Hospital, Inc., 300 Conn. 1, 21, 12 A.3d 865(2011) (holding in cases against specialists, author of
written opinion letter pursuant to § 52-190a [a] must be
‘‘similar health care provider’’ as defined in § 52-184c
[c], regardless of author’s potential qualifications to
testify at trial, and insufficient written opinion letter,
while not impairing subject matter jurisdiction, requires
dismissal of action under § 52-190a [c]), the defendants
each filed new motions to dismiss the plaintiff’s com-
plaint.8 On March 7, 2011, the court granted the defen-
dants’ motions to dismiss the plaintiff’s complaint
because the plaintiff failed to attach an opinion letter
from a similar health care provider to the complaint as
required by § 52-190a.9 The court subsequently recon-
sidered and vacated its decision only as to the plaintiff’s
purported claims of lack of informed consent, com-
bined within allegations of negligence, reasoning that
the requirements of a good faith certificate and a written
opinion letter from a similar health care provider do
not apply to a claim of lack of informed consent.
On July 28, 2011, Carrese moved for summary judg-
ment as to the plaintiff’s claims of lack of informed
consent on the ground that the plaintiff did not plead
lack of informed consent, and, alternatively, to the
extent that a lack of informed consent claim was
pleaded, no triable issue existed. On August 1, 2011,
Yaari also moved for summary judgment. The plaintiff
filed separate objections to the defendants’ motions on
September 23, 2011. On December 30, 2011, the court
granted the defendants’ motions for summary judgment
as to the plaintiff’s alleged claims of lack of informed
consent, and, on January 3, 2012, issued a supporting
memorandum of decision.10 This appeal and the defen-
dants’ cross appeal followed. See footnote 22 of this
opinion. Additional facts will be set forth as necessary.
I
On appeal, the plaintiff first claims that the court
improperly dismissed her professional negligence
claims because the written opinion letter, authored by
a urologist, not an obstetrician-gynecologist, was suffi-
cient to meet the requirements of §§ 52-190a (a) and
52-184c. The plaintiff argues alternatively that even if
the original opinion letter was insufficient, § 52-190a
does not implicate subject matter jurisdiction, and
therefore, because the defendants’ motions to dismiss
were filed outside the time period set forth by Practice
Book (2006) § 10-30, the court erred in considering and
granting their motions to dismiss.11 We address these
arguments separately.
A
The plaintiff first claims that the court improperly
dismissed her professional negligence claims because
the opinion letter, authored by a urologist rather than
an obstetrician-gynecologist, was sufficient to meet the
requirements of §§ 52-190a (a) and 52-184c. The defen-
dants argue that because they are board certified obste-
trician-gynecologists only another board certified
obstetrician-gynecologist qualifies as a ‘‘similar health
care provider’’ as defined by §§ 52-190a and 52-184c and
Bennett v. New Milford Hospital, Inc., supra, 300 Conn.
1. We agree with the defendants.
Our review of a trial court’s ruling on a motion to
dismiss pursuant to § 52-190a is plenary. See Morgan
v. Hartford Hospital, 301 Conn. 388, 395, 21 A.3d 451(2011) (‘‘[t]he interpretation of § 52-190a is a question
of law over which this court exercises plenary review’’).
We begin our analysis by setting forth the relevant
statutory provisions. Section 52-190a (a) provides that
before filing a personal injury action against a health
care provider, the attorney or party filing the action
must make ‘‘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. . . .’’12 To show
a good faith belief, the complaint must be accompanied
by a written and signed opinion of a ‘‘similar health
care provider,’’ as defined in § 52-184c, stating that there
appears to be evidence of medical negligence and
including a detailed basis for the formation of that opin-
ion. General Statutes § 52-190a. To determine if an opin-
ion letter meets the requirements of § 52-190a (a), the
letter must be read in conjunction with § 52-184c (c),
which defines the term ‘‘similar health care provider.’’
Wilkins v. Connecticut Childbirth & Women’s Center,
135 Conn. App. 679, 686, 42 A.3d 521, cert. granted on
other grounds, 305 Conn. 921, 47 A.3d 881 (2012). For
health care providers who are board certified or who
hold themselves out as specialists, such as the obstetri-
cian-gynecologists who treated the plaintiff in this case,
§ 52-184c (c) defines ‘‘similar health care provider’’ as
one who: (1) ‘‘[i]s trained and experienced in the same
specialty’’; and (2) ‘‘is certified by the appropriate Amer-
ican board in the same specialty . . . .’’13
The plaintiff argues that the opinion letter, authored
by a urologist, is sufficient to meet the requirements
of § 52-190a because this case falls within the statutory
exception to the requirement that only board certified
cognates of the defendant physician may author the
written opinion required by § 52-190a. In defining ‘‘simi-
lar health care provider,’’ § 52-184c (c) provides that
where ‘‘the defendant health care provider is providing
treatment or diagnosis for a condition which is not
within his specialty, a specialist trained in the treatment
or diagnosis for that condition shall be considered a
‘similar health care provider’.’’ The plaintiff further
argues that this case falls within the statutory exception
because her complaint alleged that ‘‘the defendants had
left the area of obstetrics and were diagnosing and
treating the plaintiff’s urological system, something out-
side their specialty.’’
This argument fails for two reasons. First, in the
written opinion letter dated September 5, 2006, Motola,
the board certified urologist, never suggested that the
defendants were diagnosing or treating the plaintiff for
a condition not within their specialty. Second, the plain-
tiff’s bladder and ureter were damaged when Yaari was
performing a hysterectomy, an obstetric-gynecological
procedure, because of the plaintiff’s condition of pla-
centa percreta, an obstetric condition. Because this
case does not fall within the statutory exception, the
original written opinion letter submitted by the plaintiff
must satisfy the requirements of §§ 52-190a and 52-184c
(c) in order to be effective.
In this regard, the plaintiff’s claim is governed by
Bennett v. New Milford Hospital, Inc., supra, 300 Conn.
1. In Bennett, our Supreme Court concluded that ‘‘in
cases of specialists, the author of an opinion letter pur-
suant to § 52-190a (a) must be a similar health care
provider as that term is defined by § 52-184c (c), regard-
less of his or her potential qualifications to testify at
trial pursuant to § 52-184c (d).’’ Id., 21. Put another way,
‘‘one’s familiarity with or knowledge of the relevant
standard of care, for purposes of authoring a prelitiga-
tion opinion letter, is not a proper consideration in
determining the adequacy of that letter if the author
does not meet the statutory definition of a ‘similar
health care provider.’ ’’ Wilkins v. Connecticut Child-
birth & Women’s Center, supra, 135 Conn. App. 687. In
Bennett, the court held that, because the plaintiff
alleged in his complaint that the defendant was a spe-
cialist in emergency medicine, the court was correct in
concluding that the opinion letter authored by a general
surgeon, with added qualifications in surgical critical
care, who engaged in the practice of trauma surgery,
was not authored by a similar health care provider as
defined by § 52-184c (c) and therefore did not satisfy
§ 52-190a. Bennett v. New Milford Hospital, Inc., supra,
24. Therefore, pursuant to Bennett, the language of
§§ 52-190a (a) and 52-184c (c) dictates that a ‘‘similar
health care provider’’ with respect to the plaintiff’s
health care providers in this case is one who is trained
and experienced in obstetrics-gynecology and is board
certified in obstetrics-gynecology. Because the author
of the opinion letter submitted by the plaintiff is neither,
the letter does not comply with § 52-190a (a), and
accordingly, the court properly dismissed the plaintiff’s
professional negligence claims.14 See Bennett v. New
Milford Hospital, Inc., supra, 28 (‘‘dismissal is the man-
datory remedy when a plaintiff fails to file an opinion
letter that complies with § 52-190a [a]’’); see also Mor-
gan v. Hartford Hospital, supra, 301 Conn. 398 (‘‘the
legislature envisioned the dismissal as being without
prejudice . . . and even if the statute of limitations has
run, relief may well be available under the accidental
failure of suit statute’’ [internal quotation marks
omitted]).
B
The plaintiff also claims that, even if the original
opinion letter was insufficient, § 52-190a does not impli-
cate subject matter jurisdiction, and therefore, because
the defendants’ motions to dismiss were filed outside
the time period set forth by Practice Book (2006) § 10-
30,15 the court erred in considering, and granting, the
motions to dismiss. The defendants argue that the court
properly determined that their 2011 motions to dismiss
were functionally motions to reargue their timely filed
2006 motions to dismiss the plaintiff’s complaint. In
the unusual circumstances of this case, we agree with
the defendants.
The following additional facts are relevant. At the
hearing on the defendants’ 2011 motions to dismiss,16
the plaintiff argued that the defendants’ motions to dis-
miss were, in essence, motions to reargue their 2006
motions to dismiss17 that did not comply with the man-
datory time requirements set forth in Practice Book
§ 11-12. The plaintiff further argued that no statute or
rule of practice authorized filing a motion to dismiss,
not claiming lack of subject matter jurisdiction, five
and one-half years after filing an appearance.18 In its
memorandum of decision, the court agreed with the
plaintiff that the 2011 motions to dismiss were really
motions to reargue the 2006 motions to dismiss.19 The
court also agreed that the defendants’ motions were
untimely because § 11-12 mandates that motions to
reargue be filed within twenty days of the decision.
The court concluded, however, that it properly could
entertain the defendants’ 2011 motions to dismiss
because the defendants’ failure to meet the timeliness
requirements did not deprive the court of jurisdiction,
and it otherwise was within the court’s discretion to
entertain the motions.
1
We first consider whether the trial court properly
concluded that the defendants’ 2011 motions to dismiss
were functionally motions to reargue their 2006 motions
to dismiss. ‘‘[T]he interpretation of pleadings is always
a question of law for the court and . . . our interpreta-
tion of the pleadings therefore is plenary.’’ (Internal
quotation marks omitted.) Dimmock v. Lawrence &
Memorial Hospital, Inc., 286 Conn. 789, 799–800, 945
A.2d 955 (2008); see also Sherman v. Ronco, 294 Conn.
548, 554 n.10, 985 A.2d 1042 (2010). ‘‘[P]leadings must
be construed broadly and realistically, rather than nar-
rowly and technically.’’ (Internal quotation marks omit-
ted.) Connecticut Coalition for Justice in Education
Funding, Inc. v. Rell, 295 Conn. 240, 253, 990 A.2d
206 (2010). Courts analyze pleadings for what they are,
rather than for what their titles state they are. See, e.g.,
State v. Smith, 19 Conn. App. 646, 648, 563 A.2d 1034(‘‘[a party] cannot change the nature of his motion by
changing its title any more than one can make a bull a
cow by giving it a female name’’), cert. denied, 213
Conn. 806, 567 A.2d 836 (1989).
In this case, the defendants’ original 2006 motions to
dismiss sought to dismiss the plaintiff’s complaint on
the ground that the plaintiff’s failure to attach a written
opinion letter from a similar health care provider, as
mandated by § 52-190a, deprived the court of jurisdic-
tion. The defendants’ 2011 motions to dismiss sought
to dismiss the plaintiff’s complaint on the ground that
the plaintiff’s failure to attach a written opinion letter
from a similar health care provider required dismissal
of the action pursuant to § 52-190a (c) and Bennett v.
New Milford Hospital, Inc., supra, 300 Conn. 1. The
defendants’ 2011 motions to dismiss essentially sought
to reverse or to modify the denials of their earlier 2006
motions to dismiss20 by Judge Jones. We conclude that
the court was correct in concluding that the defendants’
2011 motions to dismiss, despite their titles, were in
reality motions to reargue their 2006 motions to dismiss.
2
The plaintiff contends that the twenty day filing dead-
line in Practice Book § 11-12 (a) is a mandatory limita-
tion, and therefore, because the defendants’ 2011
motions were untimely, Judge Levin improperly consid-
ered the motions.21 The defendants argue that Judge
Levin properly considered their 2011 motions to dis-
miss.22 We agree with the defendants.
We review the plaintiff’s claim under the abuse of
discretion standard; see, e.g., Chartouni v. DeJesus,
107 Conn. App. 127, 127, 129, 944 A.2d 393 (we review
denial of motion to reargue for abuse of discretion),
cert. denied, 288 Conn. 902, 952 A.2d 809 (2008); and
conclude that the court did not abuse its discretion in
considering the defendants’ untimely 2011 functional
motions to reargue.
Practice Book § 11-12 (a) provides: ‘‘A party who
wishes to reargue a decision or order rendered by the
court shall, within twenty days from the issuance of
notice of the rendition of the decision or order, file a
motion to reargue setting forth the decision or order
which is the subject of the motion, the name of the
judge who rendered it, and the specific grounds for
reargument upon which the party relies.’’ (Emphasis
added.) ‘‘We construe words used in the Practice Book
according to their commonly approved meaning.’’ Lo
Sacco v. Young, 210 Conn. 503, 507, 555 A.2d 986 (1989).
The word ‘‘shall’’ typically implies a mandatory connota-
tion. ‘‘Our Supreme Court previously has recognized
the significance of the [drafter’s] choice in electing to
choose shall or may in formulating a . . . directive.
. . . Absent an indication to the contrary, the [drafter’s]
choice of the mandatory term shall rather than the
permissive term may indicates that the . . . directive
is mandatory.’’ (Citation omitted; internal quotation
marks omitted.) Vargas v. Doe, 96 Conn. App. 399, 412,
900 A.2d 525, cert. denied, 280 Conn. 923, 908 A.2d 546(2006). Ordinarily, then, a motion to reconsider must
be timely filed, and a court may and usually should
decline to consider an untimely motion.
Our determination that the filing deadline in Practice
Book § 11-12 is mandatory, however, does not end the
inquiry. ‘‘Rules of practice are not statutory or constitu-
tional mandates, but they reflect the courts’ authority
to prescribe rules to regulate their proceedings and
facilitate the administration of justice . . . . Even if a
. . . Practice Book rule must be strictly construed and
is mandatory, compliance with its requirements does
not necessarily become a prerequisite to a court’s sub-
ject matter jurisdiction.’’ (Citations omitted; internal
quotation marks omitted.) State v. Falcon, 84 Conn.
App. 429, 433, 853 A.2d 607 (2004), overruled in part
on other grounds by State v. Das, 291 Conn. 356, 368,
968 A.2d 367 (2009); see also Lo Sacco v. Young, supra,
210 Conn. 508 (failure to comply with mandatory time
requirement in our rules of practice does not affect
subject matter jurisdiction); Practice Book § 1-8 (‘‘[t]he
design of these rules being to facilitate business and
advance justice, they will be interpreted liberally in any
case where it shall be manifest that a strict adherence
to them will work surprise or injustice’’). For example,
our Supreme Court has held that a failure to meet the
twenty day deadline to appeal from a final judgment,
as required by our rules of practice, does not deprive an
appellate court of jurisdiction, even where the opposing
party files a motion to dismiss the untimely appeal. See
Kelley v. Bonney, 221 Conn. 549, 559, 606 A.2d 693(1992) (‘‘pursuant to Practice Book § 4056 [now § 66-
8], the Appellate Court had broad discretion to hear
the appeal, whether timely filed or not’’). The issue,
then, is whether the court abused its discretion in grant-
ing the defendants’ motions to reargue, which were
untimely according to the terms of our rules of practice.
After a thorough review of the record, we conclude
that the court did not abuse its discretion in considering
the defendants’ untimely 2011 motions to dismiss. First,
as noted previously, noncompliance with mandatory
filing deadlines in our rules of practice does not deprive
the court of subject matter jurisdiction to consider the
pleading. Second, the defendants, in filing their 2011
motions to dismiss, sought reconsideration because of
a newly articulated controlling principle of law set forth
by our Supreme Court in Bennett v. New Milford Hospi-
tal, Inc., supra, 300 Conn. 1. See Opoku v. Grant, 63
Conn. App. 686, 692–93, 778 A.2d 981 (2001) (‘‘[T]he
purpose of a reargument is . . . to demonstrate to the
court that there is some decision or some principle of
law which would have a controlling effect, and which
has been overlooked, or that there has been a misappre-
hension of facts. . . . [A] motion to reargue . . . is
not to be used as an opportunity to have a second bite
of the apple or to present additional cases or briefs
which could have been presented at the time of the
original argument.’’ [Citations omitted; internal quota-
tion marks omitted.]). Thus, it was reasonable for the
defendants to file what amounts to a late motion to
reargue before a second judge in light of the Supreme
Court’s decision in Bennett, issued almost four years
after Judge Jones issued his ruling on the defendants’
2006 motions to dismiss.23
For the aforementioned reasons we conclude that the
court properly considered and granted the defendants’
2011 motions to dismiss.
II
The plaintiff also claims that the court erred in render-
ing summary judgment as to her claims of lack of
informed consent against Carrese and Yaari. Specifi-
cally, the plaintiff argues that the court (1) erred in
concluding that Carrese had no duty to obtain the plain-
tiff’s informed consent, and (2) erred in concluding that
Yaari had no obligation to disclose to the plaintiff that
the cesarean hysterectomy24 could perhaps be more
safely performed at another health care facility. We
address these claims separately.
‘‘Practice Book § 17-49 provides that summary judg-
ment shall be rendered forthwith if the pleadings, affida-
vits and any other proof submitted show that there is
no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law.
In deciding a motion for summary judgment, the trial
court must view the evidence in the light most favorable
to the nonmoving party. . . . The party moving for
summary judgment has the burden of showing the
absence of any genuine issue of material fact and that
the party is, therefore, entitled to judgment as a matter
of law.25 . . . Our review of the trial court’s decision
to grant [the defendant’s] motion for summary judgment
is plenary.’’ (Internal quotation marks omitted.) Milton
v. Robinson, 131 Conn. App. 760, 779, 27 A.3d 480 (2011),
cert. denied, 304 Conn. 906, 39 A.3d 1118 (2012).
‘‘[T]he lack of informed consent claim is a different
cause of action from [a] claim of [medical] negligence
. . . .’’26 Goral v. Kenney, 26 Conn. App. 231, 237 n.7,
600 A.2d 1031 (1991). ‘‘In order to prevail on a cause
of action for lack of informed consent, a plaintiff must
prove both [1] that there was a failure to disclose a
known material risk of a proposed procedure and [2]
that such failure was a proximate cause of his injury.’’27
(Emphasis added.) Shortell v. Cavanagh, 300 Conn. 383,
388, 15 A.3d 1042 (2011). In order to obtain valid
informed consent, the physician’s disclosure to the
patient must include four factors: (1) the nature of the
procedure; (2) the risks and hazards of the procedure;
(3) the alternatives to the procedure; and (4) the antici-
pated benefits of the procedure. Logan v. Greenwich
Hospital Assn., 191 Conn. 282, 292, 465 A.2d 294 (1983).
Our Supreme Court has adopted an objective lay stan-
dard for determining the materiality of risk. See, e.g.,
Shortell v. Cavanagh, supra, 300 Conn. 388 (‘‘[u]nlike 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’’); see also
Logan v. Greenwich Hospital Assn., supra, 191 Conn.
292 (adopting lay standard for lack of informed consent
claims). ‘‘[T]he lay standard of informed consent
requires a physician to provide the patient with that
information which a reasonable patient would have
found material for making a decision whether to embark
upon a contemplated course of therapy.’’ (Emphasis in
original; internal quotation marks omitted.) Duffy v.
Flagg, 279 Conn. 682, 692, 905 A.2d 15 (2006). ‘‘Material-
ity may be said to be the significance a reasonable
person, in what the physician knows or should know
is his patient’s position, would attach to the disclosed
risk or risks in deciding whether to submit or not to
submit to surgery or treatment.’’ (Internal quotation
marks omitted.) Logan v. Greenwich Hospital Assn.,
supra, 291. Our Supreme Court has also noted, however,
‘‘that the cases on informed consent require something
less than a full disclosure of all information which may
have some bearing, however remote, upon the patient’s
decision.’’ (Internal quotation marks omitted.) Duffy v.
Flagg, supra, 692.
A
The plaintiff claims that the court erred in concluding
that Carrese had no duty to obtain the plaintiff’s
informed consent. The plaintiff argues, essentially, that,
because Carrese was providing her prenatal care and
anticipated that he would be the physician to perform
the eventual cesarean section, he had an obligation
to provide the plaintiff, and any subsequent substitute
treating physician, with information about the plaintiff’s
condition and the nature of her pregnancy ‘‘such that
she could make knowing consent to treatment.’’28 We
disagree.
The following additional facts and procedural history
are relevant. In count one of her April 21, 2011 revised
complaint, the plaintiff alleged that Carrese (1) ‘‘failed
to advise the plaintiff in timely fashion of her options
with respect to complete bed rest, early delivery or
other means of dealing with potentially life threatening
complication of placenta percreta in a timely and appro-
priate fashion’’; (2) ‘‘failed to advise the plaintiff of the
possibility of complications during delivery due to her
condition(s) of placenta previa, placenta accreta and/
or placenta percreta’’; and (3) ‘‘failed to advise the plain-
tiff of the risk that her bladder would be injured during
the cesarean [hysterectomy] . . . .’’
On July 28, 2011, Carrese moved for summary judg-
ment on the grounds that the plaintiff did not allege
lack of informed consent29 or alternatively, to the extent
that a lack of informed consent claim was pleaded, no
genuine issue of fact existed. In support of his motion,
Carrese submitted his affidavit. In its January 3, 2012
memorandum of decision, the court granted the motion
and explained its decision: ‘‘The plaintiff does not dis-
pute that Carrese neither performed nor participated
in the plaintiff’s cesarean hysterectomy. Therefore, Car-
rese had no duty to obtain the plaintiff’s informed con-
sent. Carrese’s motion for summary judgment is
granted.’’
The plaintiff argues that because Carrese provided
her prenatal care and anticipated that he would be the
physician to perform the eventual cesarean section, he
had an obligation to provide the plaintiff, with informa-
tion about the plaintiff’s condition and the nature of
her pregnancy ‘‘such that she could make knowing con-
sent to treatment.’’ The plaintiff also argues that Carrese
had an obligation to provide any subsequent substitute
treating physician with information about her condition
such that she could give informed consent to treatment.
We disagree.
Our case law regarding the issue of a physician’s
obligation to obtain a patient’s informed consent
focuses on the decision ‘‘to embark upon a contem-
plated course of therapy,’’ such as a ‘‘procedure,’’ ‘‘oper-
ation,’’ or ‘‘surgery.’’ (Internal quotation marks
omitted.) Logan v. Greenwich Hospital Assn., supra,
191 Conn. 290–94 (examining our informed consent
case law). Carrese provided the plaintiff prenatal care. It
is undisputed that Carrese did not perform the plaintiff’s
cesarean section and was on vacation with his family
at the time of the plaintiff’s surgery. Although he may
have anticipated performing a cesarean section some-
time in the future, the operation was not imminent and
there was no immediate reason for specific informed
consent. Unlike performing a cesarean section, provid-
ing prenatal care is not a ‘‘procedure,’’ ‘‘operation,’’
or ‘‘surgery.’’
Under the current state of the law of informed con-
sent, Carrese did not have an obligation to provide the
plaintiff, or any subsequent substitute treating physi-
cian, with information regarding the increased risks the
plaintiff might face when undergoing a cesarean section
due to her condition of placenta previa.30
The plaintiff makes much of the fact that Carrese
intended at some point to perform the cesarean section.
Under our law, however, a physician’s obligation to
obtain informed consent turns on the performance of
a procedure and not the intent to perform a procedure.
Consequently, we find that the plaintiff’s arguments are
unavailing. See, e.g., Sherwood v. Danbury Hospital,
278 Conn. 163, 171 n.8, 192, 194, 896 A.2d 777 (2006)
(obligation to inform patient of risks of blood transfu-
sion is owed by physician performing surgery and him
‘‘alone’’ [emphasis omitted]).
B
The plaintiff’s final claim is that the court erred in
concluding that Yaari had no obligation to disclose to
the plaintiff, in order to ensure that consent was
informed, that the procedure could be better performed
at another health care facility. The plaintiff argues that
Yaari had an obligation to advise the plaintiff of the
option of having a cesarean hysterectomy at another
health care facility, more specifically, a ‘‘tertiary facil-
ity’’ with other specialists present, because Yaari rea-
sonably anticipated that the procedure would require
expertise beyond his specialty.31 The defendant con-
tends that the law of informed consent does not impose
the obligation, at least in general, of advising a patient
that a different facility might provide more sophisti-
cated care.
The following additional facts and procedural history,
as recited by the trial court, are relevant. ‘‘Sometime
after the plaintiff was admitted to the hospital on August
5, 1004, Yaari suspected and subsequently confirmed
that she had placenta previa. . . . Yaari also suspected
that the plaintiff had placenta accreta. Yaari tried to
stop the contractions and, according to the contempora-
neous hospital record, he ‘explained to the [plaintiff]
that there [was] a good chance that we might need to
remove the uterus and there might be damage to the
bladder during this kind of operation because of the
location of the previous uterine incisions. The [plaintiff]
consented. This was also explained to her husband.’
. . .
‘‘In her affidavit in opposition to the defendants’
motions for summary judgment, however, the plaintiff
state[d] that ‘Yaari . . . did not advise me of the risks
associated with undertaking a cesarean section in the
presence of placenta accreta or placenta percreta nor
did he tell me anything about my alternatives at that
time (or in May 2004), including that of having my cesar-
ean delivery take place at an appropriate tertiary facility
and of having it handled by a team of specialists experi-
enced in dealing with very difficult, potentially life-
threatening lower abdominal surgery. . . . Yaari did
not tell me that he suspected that I had placenta accreta
or placenta percreta nor did he mention anything about
my bladder or my ureters potentially being damaged
should he go ahead with the surgery.’ . . .
‘‘The plaintiff signed a consent form giving Yaari per-
mission to perform a ‘repeat C-Section, Possible Hyster-
ectomy, Possible [illegible].’ Specifically, the form
state[d]: ‘My condition, the nature of the above proce-
dure, risks and hazards of the procedure, the benefits
of the procedure, any problems related to recuperation,
the likelihood of success of the procedure, all viable
alternatives to the procedure and the same type of infor-
mation regarding such alternatives have been explained
to my satisfaction by . . . Yaari.’ Yaari also signed the
consent form, affirming that he had provided the infor-
mation to the plaintiff.
‘‘After performing the cesarean section, Yaari discov-
ered that the plaintiff in fact had placenta percreta and
that the placenta had invaded the wall of the bladder
causing substantial bleeding, requiring a hysterectomy.
The contemporaneous hospital record signed by Yaari
further states 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 . . . we had
to pursue a cesarean hysterectomy. Because of the loca-
tion 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 intraop-
erative urology evaluation. The urology team arrived,
headed by Dr. [Jeffrey] Small, and the patient had later
on a reconstruction of the bladder and reimplantation
of the one of the ureters.’ ’’
On August 1, 2011, Yaari filed a motion for summary
judgment, arguing that he was entitled to judgment as
a matter of law because there was no genuine issue of
material fact that he disclosed all material risks to the
plaintiff.32 The plaintiff opposed the motion, arguing
that Yaari had a duty to advise her of the option of
having a cesarean hysterectomy at a tertiary facility,
with other physicians present, including a urologist and
a gynecologist-oncologist. Yaari maintained that the law
of informed consent did not impose such an obligation.
The court granted Yaari’s motion for summary judgment
on December 30, 2011. The court held that ‘‘[u]nder the
circumstances of this case, where the plaintiff concedes
that she would have had a cesarean hysterectomy
regardless of whether Yaari otherwise obtained her
informed consent, and where there is no allegation nor
evidence that Yaari was not competent, prepared and
experienced to perform a cesarean hysterectomy, there
is no genuine issue of material fact that . . . Yaari did
not violate any duty to the plaintiff by not advising her
that she might have the surgery performed by more
experienced physicians or more specialized phy-
sicians.’’
We note initially that the plaintiff’s ‘‘informed con-
sent’’ claim has little to do with any known material
risk of a cesarean hysterectomy and thus falls outside
the usual rubric of informed consent. The plaintiff con-
ceded, and our review of the record confirms, that there
is no genuine issue of material fact that the plaintiff
would have undergone a cesarean hysterectomy in any
event—the plaintiff’s counsel so indicated.33 Further,
the record indicates that the cesarean hysterectomy
was necessary to save the plaintiff’s life.34 Additionally,
the plaintiff did not allege, or present any evidence
showing, that Yaari was not competent to perform the
cesarean hysterectomy. The crux of the plaintiff’s lack
of informed consent claim as to Yaari is solely that Yaari
‘‘depriv[ed] her of the choice to seek the intervention of
physicians more experienced in and/or specializing in
dealing with this type of condition.’’ Yaari contends that
the current state of the law of informed consent in
Connecticut imposes no such affirmative obligation
on physicians.
None of our courts have addressed a claim closely
analogous to the plaintiff’s—that is, whether a physician
has an obligation to inform his or her patient that a
procedure may be better performed at another health
care facility.35 We hold that on the facts presented in
this case, Yaari had no such obligation. Our holding is
informed primarily by binding precedent such as Shor-
tell v. Cavanagh, supra, 300 Conn. 383, and Logan v.
Greenwich Hospital Assn., supra, 191 Conn. 282, which
suggest that the gravamen of informed consent is a
discussion of the material risks of the procedure itself.
The procedure itself does not necessarily extend to the
place where the procedure is to be performed; in the
circumstances of this case, the alleged fact that the
facility was not a tertiary facility was not, as a matter
of law, a material risk.36
The judgment is affirmed.
In this opinion the other judges concurred.
1
As the trial court explained: ‘‘Placenta previa is a condition in which
the placenta is implanted in the lower segment of the uterus, thereby partially
or completely obstructing the internal bone of the cervix. . . . Placenta
accreta is a condition where the placenta has grown through the placental
membrane and into the uterine wall, so that it cannot be detached without
removing the uterus. . . . As this case and the literature indicates, placenta
percreta is a condition in which the placenta can grow through the uterus
and into the bladder.’’ (Citations omitted.)
2
According to the court, ‘‘On June 30, 2006, the court had granted the
plaintiff’s petition to extend the statute of limitations ninety days pursuant
to General Statutes § 52-190a (b). The statute of limitations would otherwise
have expired on August 5, 2006. The extended statute of limitations, there-
fore, was November 4, 2006.’’
3
The court noted that ‘‘[a]lthough the complaint does not indicate whether
the defendants are board certified, it is undisputed that both [defendants]
are board certified obstetricians-gynecologists.’’
4
On January 3, 2007, the plaintiff filed a request to amend and an amended
complaint, the only material changes being (1) the original written opinion
letter’s author was revealed to be Jay Motola, a board certified urologist,
and (2) the attachment of a second written opinion letter authored by Daniel
Miller, an obstetrician-gynecologist. Neither defendant objected.
5
On October 17, 2006, counsel for Yaari filed an appearance. His motion
to dismiss was filed within thirty days of filing an appearance, as is required
by Practice Book § 10-30.
6
On October 18, 2006, counsel for Carrese filed an appearance. His motion
to dismiss was filed within thirty days of filing an appearance, as is required
by Practice Book § 10-30.
7
On May 4, 2007, the defendants each filed motions to reargue claiming,
inter alia, that in denying their motions to dismiss the court improperly had
considered a subsequent complaint and opinion letter filed by the plaintiff.
The court, Jones, J., denied the defendants’ motions to reargue, noting that
it did not rely on the plaintiff’s amended complaint or subsequent opinion
letters in doing so.
8
The plaintiff objected to the defendants’ motions to dismiss, arguing that
(1) the defendants’ motions to dismiss were the functional equivalent of
motions to reargue the prior rulings on the motions and were untimely
under Practice Book § 11-12; (2) Bennett v. New Milford Hospital, Inc.,
supra, 300 Conn. 1, should not be applied retroactively to this case; (3) the
opinion letter attached to the plaintiff’s good faith certificate was authored
by a similar health care provider as defined by § 52-184c (c); (4) § 52-190a
violates article second of the Connecticut constitution; and (5) judicial
economy requires denial of the defendants’ motions.
9
The court filed its memorandum of decision on March 14, 2011, after
having issued written orders granting the motions to dismiss on March 7,
2011. The plaintiff subsequently filed a motion to reargue on March 7, 2011,
which the court denied in part. The plaintiff then filed an amended complaint
on April 21, 2011.
10
On January 11, 2012, the plaintiff filed a motion to reargue, which the
court denied on January 30, 2012. On February 16, 2012, the plaintiff filed
this appeal.
11
Practice Book (2006) § 10-30 provides in relevant part: ‘‘Any defendant,
wishing to contest the court’s jurisdiction, may do so even after having
entered a general appearance, but must do so by filing a motion to dismiss
within thirty days of the filing of an appearance. . . .’’
12
General Statutes § 52-190a (a) provides in relevant part: ‘‘No 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 section 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. . . .’’
13
General Statutes § 52-184c (c) provides: ‘‘If the defendant health care
provider is certified by the appropriate American board as a specialist, is
trained and experienced in a medical specialty, or holds himself out as a
specialist, a ‘similar health care provider’ is one who: (1) Is trained and
experienced in the same specialty; and (2) is certified by the appropriate
American board in the same specialty; provided if the defendant health care
provider is providing treatment or diagnosis for a condition which is not
within his specialty, a specialist trained in the treatment or diagnosis for
that condition shall be considered a ‘similar health care provider’.’’
14
Although the plaintiff may have obtained opinion letters from board
certified obstetrician-gynecologists after the action commenced, after the
defendants had filed their motions to dismiss, and after the statute of limita-
tions had expired, the court may not consider those documents. See, e.g.,
Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn. App. 569,
585, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).
15
Practice Book (2006) § 10-30 (b) provides in relevant part: ‘‘Any defen-
dant, wishing to contest the court’s jurisdiction, may do so even after having
entered a general appearance, but must do so by filing a motion to dismiss
within thirty days of the filing of an appearance. . . .’’ (Emphasis added.)
Practice Book (2006) § 10-31 (a) provides in relevant part that ‘‘[t]he
motion to dismiss shall be used to assert (1) lack of jurisdiction over the
subject matter, (2) lack of jurisdiction over the person, (3) improper venue,
(4) insufficiency of process, and (5) insufficiency of service of process. . . .’’
16
On January 31, 2011, Yaari moved to dismiss the plaintiff’s September
15, 2006 complaint pursuant to § 52-190a (c), on the ground that the plaintiff’s
complaint did not comply with the requirements of § 52-190a because the
written good faith opinion letter was not authored by a health care provider
similar to Yaari. On February 10, 2011, Carrese filed a motion to dismiss
on similar grounds.
17
The defendants’ 2006 motions to dismiss—filed on November 13, 2006,
and November 15, 2006, respectively—raised the issue of the adequacy of
the plaintiff’s § 52-190a opinion letter and were denied by the court, Jones,
J., on April 16, 2007.
18
Practice Book § 11-12 (a) provides: ‘‘A party who wishes to reargue a
decision or order rendered by the court shall, within twenty days from the
issuance of notice of the rendition of the decision or order, file a motion
to reargue setting forth the decision or order which is the subject of the
motion, the name of the judge who rendered it, and the specific grounds
for reargument upon which the party relies.’’
19
On March 7, 2011, the court granted the defendants’ motions to dismiss
the entire complaint. The court subsequently vacated its decision as to the
plaintiff’s claims of lack of informed consent, the result of which was that
only the professional negligence claims remained dismissed.
20
We note that the defendants’ 2006 motions to dismiss were timely filed
in accordance with Practice Book (2006) § 10-30 because they were filed
within thirty days of the defendants’ counsel filing their appearances in
this case.
21
On appeal, the plaintiff also now claims that the court, Levin, J., improp-
erly considered the defendants’ 2011 motions to dismiss because the 2011
motions to dismiss were motions to reargue Judge Jones’ earlier denial of
their 2006 motions to dismiss. The motions were not decided by the same
judge who denied their earlier motions to dismiss, as is required by Practice
Book § 11-12 (c). Practice Book § 11-12 (c) provides in relevant part that
‘‘[a] motion to reargue shall be considered by the judge who rendered the
decision or order. . . .’’ The plaintiff did not raise this argument in her
written objection to the defendants’ 2011 motions to dismiss or at the hearing
on the defendants’ 2011 motions to dismiss. Because the plaintiff raises this
argument for the first time on appeal, we find it was not preserved, and we
decline to address it.
22
On cross appeal, the defendants argue that if this court finds that Judge
Levin properly could not reconsider Judge Jones’ denial of the defendants’
original 2006 motions to dismiss, then this court should find, nonetheless,
that Judge Jones’ denials of the 2006 motions to dismiss were improper
under Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 1. Because
we find that the court, Levin, J., properly considered the defendants’ 2011
motions to dismiss, we find it unnecessary to address the defendants’ argu-
ment on cross appeal.
23
Unusual practical considerations were presented here. The trial court
correctly determined that Bennett was to have retroactive effect. See, e.g.,
Marone v. Waterbury, 244 Conn. 1, 10, 707 A.2d 725 (1998) (‘‘judgments that
are not by their terms limited to prospective application are presumed to
apply retroactively’’). In light of Bennett, the court was faced with a situation
in which any judgment rendered on the professional negligence issues in
favor of the plaintiff would likely be reversed in any event. By dealing with
the issue, the court avoided the time and expense, to the state and to the
parties, of a perhaps pointless trial.
24
Where appropriate, the operative procedures involving the cesarean
section and the hysterectomy will be referred to collectively as ‘‘the cesar-
ean hysterectomy.’’
25
‘‘The party opposing a motion for summary judgment must present
evidence that demonstrates the existence of some disputed factual issue.
. . . The movant has the burden of showing the nonexistence of such issues
but the evidence thus presented, if otherwise sufficient, is not rebutted by
the bald statement that an issue of fact does exist. . . . To oppose a motion
for summary judgment successfully, the nonmovant must recite specific
facts . . . which contradict those stated in the movant’s affidavits and docu-
ments. . . . The opposing party to a motion for summary judgment must
substantiate its adverse claim by showing that there is a genuine issue of
material fact together with the evidence disclosing the existence of such
an issue.’’ (Internal quotation marks omitted.) Milton v. Robinson, 131 Conn.
App. 760, 779, 27 A.3d 480 (2011), cert. denied, 304 Conn. 906, 39 A.3d
1118 (2012).
26
‘‘[T]he 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.’’ Shortell v. Cavanagh, 300 Conn. 383, 389,
15 A.3d 1042 (2011); see also Caron v. Adams, 33 Conn. App. 673, 687, 638
A.2d 1073 (1994) (‘‘the basis for claiming a lack of informed consent is a
failure to make a sufficient disclosure of the risks of or alternatives to a
certain medical procedure or treatment’’).
27
‘‘Our standard of disclosure for informed consent in this state is an
objective standard that does not vary from patient to patient based on what
the patient asks or what the patient would do with the information if it
were disclosed. As this court stated in [Logan v. Greenwich Hospital Assn.,
191 Conn. 282, 292–93, 465 A.2d 294 (1983)], the lay standard of informed
consent requires a physician to provide the patient with that information
which a reasonable patient would have found material for making a decision
whether to embark upon a contemplated course of therapy. . . . In adopting
the objective lay standard, this court recognized that rather than impose
on the physician an obligation to disclose at his peril whatever the particular
patient might deem material to his choice, most courts have attempted to
frame a less subjective measure of the physician’s duty.’’ (Emphasis omitted;
internal quotation marks omitted.) Duffy v. Flagg, 279 Conn. 682, 692, 905
A.2d 15 (2006).
28
The plaintiff also argues that the court improperly relied on cases involv-
ing the duties of referring physicians because Carrese was not a referring
physician. We agree with the plaintiff that Carrese was not a referring
physician. We note that the trial court, however, in discussing cases involving
the duties of referring physicians, stated that ‘‘[h]ere, Carrese was not even
a referring physician.’’
29
Carrese argues that the plaintiff did not properly allege lack of informed
consent and notes that the first time the plaintiff argued that there was a
pending lack of informed consent claim was in seeking to reargue the
dismissal of her medical malpractice claims. Carrese argues that count one
of the original complaint alleged medical negligence against Carrese and
not lack of informed consent. Lack of informed consent is a cause of action
separate from a claim of medical negligence and arises from a different set
of facts. See, e.g., Hammer v. Mount Sinai Hospital, 25 Conn. App. 702,
706, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991). The
plaintiff, therefore, had the burden, pursuant to Practice Book § 10-26, to
plead the lack of informed consent claim in a separate count properly to
put Carrese on notice of that claim. We note that regardless of whether the
plaintiff properly alleged a cause of action that was based on lack of informed
consent in the original complaint, the court ordered the defendants to
address the plaintiff’s claimed cause of action of lack of informed consent,
the defendants had notice of such claim, and the defendants may have
implicitly agreed to allow the plaintiff to amend her complaint to include
this cause of action by not objecting. Even if the plaintiff did not plead lack
of informed consent in her original complaint, in light of the defendants’
actions and notice of the plaintiff’s lack of informed consent claims, we
decline to address the defendants’ argument further.
30
Because the procedure was to be performed in the future and Carrese
was never in the position to be the operating surgeon, we conclude that
Carrese had no obligation to obtain informed consent. We do not address
the broader issue of whether the applicable standard of care was deviated
from in the course of the plaintiff’s care.
31
The court stated: ‘‘At oral argument on the defendants’ motions [for
summary judgment], the plaintiff clarified that the crux of her claim was
not that she would not have had a cesarean section or a hysterectomy if
provided with additional information, but rather that she should have been
told that the procedure should have been completed at a ‘tertiary facility,’
by a more skilled surgeon, with a team of specialists present.’’
32
The court held that there was no genuine issue of material fact that the
plaintiff would have undergone a cesarean hysterectomy.
33
The plaintiff’s attorney made the following remarks at the hearing on
the defendants’ motions for summary judgment:
‘‘[The Plaintiff’s Counsel]: Thank you, Your Honor. Your Honor, as to
the—just addressing quickly the informed . . . consent form that the defen-
dant, Dr. Yaari has provided a copy of . . . all it says is repeat [cesarean]
section and possible hysterectomy. It says something else, possible greater,
I can’t read the words, but it says nothing, Your Honor, and the testimony
is . . . at no time did Dr. Yaari tell [the plaintiff] that because she’d had
multiple prior [cesarean] sections and had a placenta previa, she was at a
substantially increased risk of suffering from placenta percreta and/or pla-
centa accreta. Placenta percreta is a more advanced or complicated version.
And in fact, she did suffer from placenta percreta. And he never had a
percreta or accreta discussion with her ever, Your Honor. . . .
‘‘The Court: What would have changed if she had? . . .
‘‘[The Plaintiff’s Counsel]: What would have changed, Your Honor, firstly,
in May of 2004, she was at Bridgeport Hospital. Dr. Yaari was again covering
for Dr. Carrese and was the responsible physician. . . . And the hospital
[record] says . . . suspected placenta previa, will tell Dr. Yaari when he
calls in an hour, something to that effect.
‘‘And so, that he knew so months before the delivery, it is our position,
and it certainly is an issue of fact on this, at least that she had a placenta
previa condition, and he knew about her prior [cesarean] sections. Under
those circumstances . . . [w]hat . . . we’re saying is that, well, certainly
she should have been given the risks and the alternatives to that. . . .
‘‘The Court: This is alternatives to what?
‘‘[The Plaintiff’s Counsel]: . . . [T]o having Dr. Carrese and/or Dr. Yaari
perform this cesarean section, cesarean section hysterectomy. A lot of them
are saying, and most—certainly all the plaintiff’s experts and a number of
the defendant’s experts, that it would have been preferable to have an
experienced general pelvic surgeon. It’s [a] very unusual occurrence, this
placenta accreta, in the life of an . . . obstetrician-gynecologist. And it’s—
it’s the plaintiff’s position that she would have liked to have known that
she was in an elevated risk of suffering lower urinary tract injury and that
she could have gone and she would like to have known the alternative
of going to, and having present, an experienced, let’s say, gynecological
oncologist to this procedure on her. . . .
‘‘The Court: Gynecological oncologist, did you say?
‘‘[The Plaintiff’s Counsel]: Yes. Yes, Your Honor, in other words, a doctor
who specializes in complicated lower urinary tract surgeries, for example.
So, rather—and she could have, if she’d known, if this had been brought
to her attention . . . you know, she could have had an alternative of having
somebody who specializes in this kind of complicated condition deal with
it. In fact, she was told nothing about it. She only found [out] about placenta
percreta, placenta accreta, after the delivery. They told her nothing about it.
‘‘And, in fact, Dr. [Frank] Boehm, Dr. Yaari’s expert, says that Dr. Yaari
knew ahead of time or suspected strongly that she had an accreta. And . . .
Dr. [Jeffrey] Richardson, one of the plaintiff’s experts, testified that, in fact,
he suspected that she—oh, testified that Dr. Yaari did anticipate on August
5, before the delivery was attempted, there was a placenta accreta and/or
percreta present, and that urologic injury could occur during the procedure.
‘‘And that because of knowing about it ahead of time, he, quote, he had
the luxury of time. In other words, we don’t accept that there is an emergency
exception, Your Honor. I believe that all that the defendant has cited to on
this issue is a state regulation, it’s not a statute, that simply says that hospitals
should make sure that doctors get informed consent. That’s essentially what
that regulation says. It doesn’t say anything about doctors don’t have to get
informed consent if there’s an emergency.
‘‘But beyond that, it’s our position, Your Honor, that there was not an
emergency, that . . . there was sufficient time for [the plaintiff] to give
informed consent, to have a discussion about possible bladder injury, about
possible urethral injury, about an option of having a urologist or a gynecologi-
cal oncologist deal with the procedure. She wasn’t given any of these options.
She was not told the risks. She was not told the alternatives. And, Your
Honor, it’s the plaintiff’s position that that’s exactly what informed consent
is about. She should have been told of these risks and alternatives, and she
was not . . .
‘‘The Court: What . . . other alternatives were there, again, other than
you mentioned an experienced pelvic surgeon or gynecological oncologist?
‘‘[The Plaintiff’s Counsel]: She would have, Your Honor, have had to
undergo an operation where her uterus was removed. She would have had
to undergo a hysterectomy. But, Your Honor, it is our view that had she
been given this option of going with someone who knew what he was doing
and did this as a specialist, she would not be permanently unable to use
the bathroom today. She wasn’t given that option because she wasn’t told
about it.’’ (Emphasis added.)
34
In its memorandum of decision, the court stated: ‘‘In the deposition of
Dr. Frederick Rau, an obstetrician-gynecologist, the following exchange
occurred:
‘‘Q. And in reviewing all the records, have you developed any opinions
as to whether or not . . . Yaari conformed to the standard of care in his
care and treatment of [the plaintiff] in this particular situation?
‘‘A. I believe that . . . Yaari did conform to the standard of care in this
very difficult situation. . . . I don’t think he had any choice but to proceed
with the operation, perform the cesarean hysterectomy, and then manage
the bleeding and urologic issues after the hysterectomy.
‘‘Yaari submitted a portion of an uncertified deposition transcript of Dr.
Jeffrey Richardson, an obstetrician-gynecologist, who testified that the hys-
terectomy saved the plaintiff’s life. The pertinent deposition testimony is
as follows:
‘‘Q. Okay. Did the hysterectomy that was done in this case save [the
plaintiff’s] [life]? . . .
‘‘A. I would say the hysterectomy saved her [life].’’
‘‘Additionally, the plaintiff submitted a portion of a certified deposition
transcript of Dr. Frank Boehm, an obstetrician-gynecologist, who testified
that the circumstances of the plaintiff’s case constituted a life-threatening
situation. The pertinent deposition testimony is as follows:
‘‘A. [T]his is a life-threatening situation, placenta percreta with a previa.
The amount of blood loss was obviously enormous; the [plaintiff] received
nine units of blood.’’ (Emphasis omitted.)
35
The Wisconsin Supreme Court addressed an analogous claim in Adler v.
Kokemoor, 199 Wis. 2d 615, 545 N.W.2d 495 (1996) (where plaintiff produced
evidence showing defendant misrepresented mortality rates and his experi-
ence performing surgery, with respect to lack of informed consent claim,
court properly allowed plaintiff to introduce evidence showing decreased
risk of complications had plaintiff undergone neurosurgery for aneurysm
at a tertiary care facility). In Adler, the court considered whether a trial
court was correct in allowing the plaintiff to present evidence that the
defendant physician should have advised the plaintiff of the possibility of
undergoing surgery at a tertiary care facility with a more experienced sur-
geon. While we are not bound by Adler, we note that the facts of Adler—
which involved a physician who misrepresented mortality rates and did not
disclose the fact that, although he had performed thirty operations to clip
anterior circulation aneurysms, he had never performed operations to clip
the significantly more complicated posterior circulation aneurysms like the
one from which the plaintiff suffered—are wholly unlike the facts of this
case.
36
We do not foreclose the possibility that, in other circumstances, analo-
gous factors may appropriately be regarded to be material risks subject to
consideration by a jury. For example, we do not necessarily rule out a
surgeon’s complete lack of experience or a grossly unsanitary operating
facility as a material risk attendant to the procedure. In this matter, risks
material to the procedure were disclosed, and there was never a suggestion
that the surgeon was not competent to perform the procedure. The plaintiff
now asserts that, had she known of all of the possible sequelae and places
where the surgery perhaps could have been performed, she would have
opted for a ‘‘tertiary facility.’’ Although, as noted previously, we express no
opinion as to whether the issue raises questions of professional negligence,
we do not hold that advising as to ‘‘tertiary facilities’’ was required on the
facts of this case. There was no evidence that this facility was substandard
and, in any event, there is almost always a more prestigious facility
somewhere.