Wood v. Rutherford

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LAUREN WOOD v. THOMAS J.
RUTHERFORD ET AL.
(AC 40142)
Sheldon, Elgo and Flynn, Js.
Syllabus
The plaintiff patient sought to recover damages from the defendant R, a
licensed gynecological oncologist, alleging that R’s conduct during a
certain postoperative examination constituted battery and the negligent
infliction of emotional distress. The plaintiff alleged that she underwent
a surgical procedure known as a laser ablation of the vulva that was
performed by R, and that he, having subsequently discovered during the
postoperative examination that the plaintiff’s labia were agglutinated,
digitally separated her agglutinated labia without providing her with any
warning or notice. R filed a motion to dismiss, claiming that the plaintiff’s
claims against him were for medical malpractice and, as such, the plain-
tiff was required by statute (§ 52-190a) to attach to the complaint a
certificate of good faith and a written opinion letter of a similar health
provider. The trial court found that the claims were for medical malprac-
tice and, thus, granted the motion to dismiss without prejudice to the
plaintiff filing a separate action claiming a lack of informed consent.
The plaintiff then filed a revised complaint claiming that R had failed
to obtain her informed consent before embarking on a course of medical
treatment for a complication that he discovered during the postoperative
examination. Subsequently, R filed a motion for summary judgment,
which the court granted on the ground that R’s conduct in separating
the plaintiff’s agglutinated labia was not a separate procedure or course
of treatment giving rise to a duty to obtain informed consent but was,
instead, a part of another examination for which R had received the
written consent of the plaintiff. On appeal, the plaintiff challenged the
trial court’s conclusion and, specifically, claimed that although R had
obtained her informed consent to perform the laser ablation of her vulva
and, as part of that course of treatment, to perform a postoperative
examination, a substantial change in circumstances occurred when R
discovered a complication during the postoperative examination that
required medical intervention, which in turn obligated R to obtain her
informed consent before proceeding further. Held:
1. The trial court improperly granted R’s motion to dismiss the plaintiff’s
battery and negligent infliction of emotional distress counts due to
the plaintiff’s noncompliance with § 52-190a: the written opinion letter
requirement of § 52-190a did not apply to the plaintiff’s battery claim, as
our Supreme Court has held that the written opinion letter requirement
contained in § 52-190a applies only to claims of medical negligence, and
the plaintiff’s battery claim, which contained no allegations of negligence
on the part of R and did not allege any deviation from the applicable
standard of care, was predicated on the alleged lack of informed consent
and was, thus, not subject to that requirement; moreover, the plaintiff’s
negligent infliction of emotional distress count was not a claim of medi-
cal negligence subject to the requirements of § 52-190a, as that count
lacked any allegation that R departed from the applicable standard of
care, and it was, instead, derivative of the plaintiff’s battery claim, as
it concerned her general theory that R lacked informed consent to
digitally separate her agglutinated labia.
2. The trial court improperly rendered summary judgment in favor of R
on the plaintiff’s revised complaint: when a substantial and material
alteration of the risks, anticipated benefits, or alternatives previously
disclosed to the patient occurs during a course of medical treatment, the
doctrine of informed consent generally requires an additional informed
consent discussion between the physician and the patient, and, in the
present case, a genuine issue of material fact existed as to whether R’s
discovery of the plaintiff’s medical complication during the postopera-
tive examination constituted a substantial and material change in circum-
stances, such that R was obligated to disclose the risks, anticipated
benefits, and viable alternatives to the plaintiff before embarking on a
course of treatment, as a finder of fact could have concluded on the
basis of certain statements in the affidavits of the plaintiff and her
mother, which alleged that R, after separating the plaintiff’s agglutinated
labia, informed them that he performed that procedure so that the
plaintiff would not have to go to the operating room for surgery, as well
as R’s admission that severely agglutinated labia may require a surgical
procedure and evidence from both parties of the significant pain experi-
enced by the plaintiff, that R discovered the medical complication during
his initial examination of the plaintiff and then, without her informed
consent, made a unilateral decision to pursue a particular course of
treatment, namely, digital separation, when another viable alternative
existed; moreover, although a physician’s failure to obtain informed
consent may be excused in certain circumstances, such as when the
patient has authorized the physician to remedy complications that arise
during a course of medical treatment, a genuine issue of material fact
existed as to whether the plaintiff had authorized R to remedy unforeseen
complications that arose, not during her laser ablation procedure but,
rather, during the postoperative examination that occurred weeks later,
as the plaintiff’s signed consent form, when read in the light most
favorable to the plaintiff as the nonmoving party, authorized R to take
whatever action may be necessary only with respect to unforeseen
complications that arose during the laser ablation procedure and did
not discuss postoperative care.
Argued May 22, 2018—officially released January 8, 2019
Procedural History
Action to recover damages for, inter alia, battery, and
for other relief, brought to the Superior Court in the
judicial district of Fairfield, where the court, Radcliffe,
J., granted the named defendant’s motion to dismiss;
thereafter, the court granted the plaintiff’s motion to
cite in the named defendant as a party defendant and
the plaintiff filed an amended complaint; subsequently,
the court granted the motion to dismiss filed by the
defendant Yale University and rendered judgment
thereon; thereafter, the court granted the named defen-
dant’s motion for summary judgment and rendered judg-
ment thereon, from which the plaintiff appealed to this
court. Reversed; further proceedings.
John L. Cesaroni, with whom was James R. Miron,
for the appellant (plaintiff).
Tadhg Dooley, with whom, on the brief, was Jeffrey
R. Babbin, for the appellee (named defendant).
Opinion
ELGO, J. This case concerns the conduct of a physi-
cian who discovered a complication during a postopera-
tive 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 dis-
tress against the defendant, Thomas J. Rutherford,
M.D.1 The plaintiff claims that the court improperly
concluded that those counts sounded in medical mal-
practice and, thus, required compliance with General
Statutes § 52-190a. The plaintiff also challenges the pro-
priety 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 inflic-
tion 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 inap-
propriate. 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 gyneco-
logical 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 defen-
dant], the plaintiff returned to Yale University Gyneco-
logic 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 defen-
dant], 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 plain-
tiff 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 con-
duct 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.’’ (Foot-
note 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 aggluti-
nated labia without warning or notice to her.5 The plain-
tiff’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 malprac-
tice claim into a tortious action for purposes of circum-
venting § 52-190a . . . .’’ The court then made an
express finding that the three factors determinative of
whether a negligence claim sounds in medical malprac-
tice6 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 pro-
vide 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 proce-
dure; (c) [the defendant] failed to discuss any alterna-
tives to the procedure he performed where, upon
information and belief, other procedures were avail-
able; and (d) [the defendant] failed to disclose any antic-
ipated 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] sepa-
rated 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 plain-
tiff’s vagina—was not a ‘procedure’ requiring consent.
Even if it [was], the plaintiff consented to [the defen-
dant] 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 trig-
gering 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 pro-
vided a medical treatment to remedy her labial aggluti-
nation, 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 Ander-
sen, 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 ther-
apy from the operation.’’ The defendant further submit-
ted that ‘‘[t]he uncontroverted evidence shows that [he]
had to separate the plaintiff’s labia, which were aggluti-
nated, 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 responded that there was
‘‘nothing in Connecticut that says that this . . . is or
is not a course of treatment under the standard [set
forth] in Logan [v. Greenwich Hospital Assn., 191 Conn.
282, 292, 465 A.2d 294 (1983)].’’ The plaintiff’s counsel
nevertheless argued that, after discovering the labial
agglutination, the defendant failed to disclose to the
plaintiff the nature of the course of treatment he ulti-
mately undertook to resolve that medical complication.
Counsel reminded the court that the affidavits submit-
ted by the plaintiff and Andersen in opposition to the
motion for summary judgment both indicated that the
defendant told them that he performed the digital sepa-
ration of the agglutination ‘‘to avoid having to go into the
operating room’’ to resolve that complication.10 Counsel
then rhetorically asked what the difference was
between a course of treatment in an operating room
and a course of treatment in an examination room,
before stating: ‘‘[T]he take home message is that the
form of treatment is not what’s important. It’s that the
doctor . . . and the patient embark on a course of
treatment, and the patient has to go into it with open
eyes, and that just didn’t happen here.’’ The plaintiff’s
counsel concluded his remarks by noting that the defen-
dant ‘‘provided a treatment. [The plaintiff’s] labia [were]
fused together, and he separated [them]. There certainly
is some evidence that [separation] could have been
done in an operating room, and maybe it should have.
[The plaintiff] deserves to be able to explore that. And
certainly if [the defendant] can refute that, that’s fine,
but it’s an issue of fact to be decided in this case by
the trier of fact . . . .’’
When those arguments concluded, the court stated
that it ‘‘makes a finding that the activities of [the defen-
dant], in examining the surgical site following a surgical
procedure which took place three weeks earlier, is not
a procedure which would give rise to the duty to inform
the plaintiff that a certain portion of the examination
of the surgical site might induce pain and [to conclude
otherwise] would extend the definition of a surgery
far afield. Under Logan [v. Greenwich Hospital Assn.,
supra, 191 Conn. 292], informed consent deals with a
procedure, an operation or surgery. This was not an
operation. It was not surgery. It was not a procedure
in and of itself. It was, rather, part of another examina-
tion for which the [defendant] received the written con-
sent of the plaintiff. So, the motion for summary
judgment is granted.’’ Accordingly, the court rendered
judgment in favor of the defendant, and this appeal
followed.
I
We first consider the plaintiff’s challenge to the dis-
missal of her August 25, 2015 amended complaint
against the defendant. Although that complaint con-
tained counts labeled battery and negligent infliction
of emotional distress, the trial court determined that,
despite the nomenclature employed by the plaintiff,
those counts both sounded in medical malpractice. As
a result, the court held that the plaintiff’s failure to
comply with the strictures of § 52-190a required dis-
missal of those counts due to lack of personal jurisdic-
tion. That determination warrants closer scrutiny.
‘‘When a . . . court decides a . . . question raised
by a pretrial motion to dismiss, it must consider the
allegations of the complaint in their most favorable
light. . . . In this regard, a court must take the facts
to be those alleged in the complaint, including those
facts necessarily implied from the allegations, constru-
ing them in a manner most favorable to the pleader.’’
(Internal quotation marks omitted.) CitiMortgage, Inc.
v. Gaudiano, 142 Conn. App. 440, 441, 68 A.3d 101,
cert. denied, 310 Conn. 902, 75 A.3d 29 (2013); see also
Morgan v. Hartford Hospital, 301 Conn. 388, 395, 21
A.3d 451 (2011) (‘‘[i]n any consideration of the trial
court’s dismissal, we take the facts as alleged in the
complaint as true’’). As our Supreme Court has recog-
nized, the failure to attach a proper written opinion
letter pursuant to § 52-190a to a complaint alleging
injury due to the medical negligence of a health care
provider ‘‘implicates personal jurisdiction’’ and man-
dates the dismissal of an action. Morgan v. Hartford
Hospital, supra, 402; see also General Statutes § 52-
190a (c) (failure to provide written opinion letter ‘‘shall
be grounds for the dismissal of the action’’). ‘‘Our review
of a trial court’s ruling on a motion to dismiss pursuant
to § 52-190a is plenary.’’ Torres v. Carrese, 149 Conn.
App. 596, 608, 90 A.3d 256, cert. denied, 312 Conn. 912,
93 A.3d 595 (2014).
The present case requires us to construe the nature
of the causes of action alleged in the plaintiff’s August
25, 2015 amended complaint to determine whether com-
pliance with § 52-190a was necessary.11 ‘‘The interpreta-
tion of pleadings is always a question of law for the court
. . . . Our review of the trial court’s interpretation of
the pleadings therefore is plenary. . . . [W]e long have
eschewed the notion that pleadings should be read in
a hypertechnical manner. Rather, [we must] construe
pleadings broadly and realistically, rather than narrowly
and technically. . . . [A] pleading must be construed
reasonably, to contain all that it fairly means, but carries
with it the related proposition that it must not be con-
torted in such a way so as to strain the bounds of
rational comprehension. . . . Although essential alle-
gations may not be supplied by conjecture or remote
implication . . . the complaint must be read in its
entirety in such a way as to give effect to the pleading
with reference to the general theory upon which it pro-
ceeded, and do substantial justice between the parties.’’
(Citations omitted; internal quotation marks omitted.)
Grenier v. Commissioner of Transportation, 306 Conn.
523, 536–37, 51 A.3d 367 (2012).
A
Battery
We begin with the first count of the August 25, 2015
amended complaint. It alleges in relevant part that, dur-
ing the postoperative examination, the defendant ‘‘with-
out any warning or notice or consent from the plaintiff,
intentionally, wantonly and/or forcefully inserted his
fingers through the plaintiff’s agglutinated labia and
into her vagina.’’ Count one further alleges that the
defendant’s conduct ‘‘constituted a battery in that his
actions were harmful and/or offensive to the plaintiff’’
and concludes by alleging a variety of injuries that the
plaintiff sustained as the ‘‘result of the harmful and/or
offensive conduct’’ of the defendant. In dismissing that
count, the court concluded that those allegations consti-
tuted a claim of medical negligence on the part of the
defendant, which necessitated compliance with § 52-
190a. We disagree.
As the plaintiff emphasized at the hearing on the
defendant’s motion to dismiss, and as the complaint
plainly indicates, her battery claim was predicated on
the lack of informed consent. Our Supreme Court has
‘‘long recognized the principle that [e]very human being
of adult years and sound mind has a right to determine
what shall be done with his own body; and a surgeon
who performs an operation without his patient’s con-
sent, commits an assault, for which he is liable in dam-
ages.’’ (Internal quotation marks omitted.) Godwin v.
Danbury Eye Physicians & Surgeons, P.C., 254 Conn.
131, 136, 757 A.2d 516 (2000). In Logan v. Greenwich
Hospital Assn., supra, 191 Conn. 289, the Supreme
Court clarified that a patient can recover on a ‘‘theory
of battery as a basis for recovery’’ against a physician
in three limited circumstances: (1) when a physician
performs a procedure other than that for which consent
was granted; (2) when a physician performs a procedure
without obtaining any consent from the patient; and
(3) when a physician realizes that the patient does not
understand what the procedure entails. This court simi-
larly has observed that ‘‘[o]ur courts have long adhered
to the principle that the theory of intentional assault
or battery is a basis for recovery against a physician
who performs surgery without consent.’’ Chouinard v.
Marjani, 21 Conn. App. 572, 579, 575 A.2d 238 (1990);
see also Canterbury v. Spence, 464 F.2d 772, 783 (D.C.
Cir.) (‘‘[i]t is the settled rule that therapy not authorized
by the patient may amount to . . . a common law bat-
tery’’), cert. denied, 409 U.S. 1064, 93 S. Ct. 560, 34 L.
Ed. 2d 518 (1972); Schmeltz v. Tracy, 119 Conn. 492,
495, 177 A. 520 (1935) (‘‘if the lack of consent was
established, the removal of the moles [by the physician]
was in itself a trespass and had the legal result of an
assault’’); Torres v. Carrese, supra, 149 Conn. App. 621n.29 (‘‘[l]ack of informed consent is a cause of action
separate from a claim of medical negligence’’); Shadrick
v. Coker, 963 S.W.2d 726, 732 (Tenn. 1998) (‘‘the doctrine
of lack of informed consent is based upon the tort of
battery, not negligence, since the treatment or proce-
dure was performed without having first obtained the
patient’s informed consent’’).
Count one contains no allegations of negligence on
the part of the defendant. It likewise does not allege
any deviation from the applicable standard of care.12
The strictures of § 52-190a, therefore, do not apply to
that cause of action. Section 52-190a was enacted ‘‘to
prevent the filing of frivolous medical malpractice
actions.’’ Morgan v. Hartford Hospital, supra, 301
Conn. 398. By its plain language, that statute applies to
actions ‘‘to recover damages resulting from personal
injury or wrongful death . . . whether in tort or in con-
tract, in which it is alleged that such injury or death
resulted from the negligence of a health care provider
. . . .’’ (Emphasis added.) General Statutes § 52-190a
(a). Significantly, our Supreme Court has held that the
written opinion letter requirement contained in § 52-
190a applies only to claims of medical negligence, which
is defined as ‘‘the failure to use that degree of care for
the protection of another that the ordinarily reasonably
careful and prudent [person] would use under like cir-
cumstances. . . . It signifies a want of care in the per-
formance of an act, by one having no positive intention
to injure the person complaining of it.’’ (Internal quota-
tion marks omitted.) Dias v. Grady, 292 Conn. 350, 354,
972 A.2d 715 (2009); see also Wilkins v. Connecticut
Childbirth & Women’s Center, 314 Conn. 709, 723 n.4,
104 A.3d 671 (2014) (‘‘§ 52-190a applies only to claims
of medical malpractice’’); Dias v. Grady, supra, 359(‘‘the phrase ‘medical negligence,’ as used in § 52-190a
(a), means breach of the standard of care’’).
In Shortell v. Cavanagh, 300 Conn. 383, 385, 15 A.3d
1042 (2011), the Supreme Court expressly held that a
cause of action against a physician predicated on a lack
of informed consent is not subject to the written opinion
letter requirement of § 52-190a. The court explained
that ‘‘[u]nlike a medical malpractice claim, a claim for
lack of informed consent is determined by a lay stan-
dard of materiality, rather than an expert medical stan-
dard of care which guides the trier of fact in its
determination.’’ Id., 388; see also Logan v. Greenwich
Hospital Assn., supra, 191 Conn. 293 (adopting lay stan-
dard for informed consent claims). Accordingly, ‘‘in an
informed consent case, the plaintiff is not required to
present the testimony of a similar health care provider
regarding the standard of care at trial.’’ Shortell v. Cava-
nagh, supra, 389. The court thus reasoned that ‘‘[i]t
would not be logical that an opinion from a similar
health care provider would be required to commence
an action of this nature, when the testimony of a medical
expert would not be necessary at trial to prove the
standard of care and its breach.’’ Id., 388. To do so
would ‘‘frustrate the purpose of using the lay standard
for informed consent cases if we were to require a
plaintiff in such a case to comply with § 52-190a and
attach to the complaint a good faith certificate and
written opinion of a similar health care provider.’’
Id., 391.
In count one of her August 25, 2015 amended com-
plaint, the plaintiff alleges that the defendant committed
a battery through his intentional conduct during the
postoperative examination by failing to obtain her
informed consent prior to digitally separating her agglu-
tinated labia. ‘‘[M]edical standards of care are inapplica-
ble’’ to such claims. Chouinard v. Marjani, supra, 21
Conn. App. 580; accord Sherwood v. Danbury Hospital,
278 Conn. 163, 180, 896 A.2d 777 (2006) (‘‘[u]nlike the
traditional action of [medical] negligence, a claim for
lack of informed consent focuses not on the level of
skill exercised in the performance of the procedure
itself but on the adequacy of the explanation given
by the physician in obtaining the patient’s consent’’
[internal quotation marks omitted]). As a result, the
written opinion letter requirement of § 52-190a does not
apply to informed consent claims. Shortell v. Cavanagh,
supra, 300 Conn. 385. The trial court, therefore, improp-
erly dismissed count one due to the plaintiff’s failure
to append to her complaint a written opinion letter of
a similar health care provider.
B
Negligent Infliction of Emotional Distress
We next consider the second count of the plaintiff’s
August 25, 2015 amended complaint. Titled ‘‘Negligent
Infliction of Emotional Distress against Dr. Rutherford,’’
it reiterates the allegation that, during the postoperative
examination, the defendant ‘‘without any warning or
notice [to] the plaintiff, forcefully inserted his fingers
through the plaintiff’s agglutinated labia and into her
vagina.’’ The count further alleges that ‘‘[t]he conduct
of [the defendant] . . . created an unreasonable risk
of causing, and did in fact cause, the plaintiff emotional
distress. The plaintiff’s emotional distress was a fore-
seeable result of the conduct of [the defendant]. The
emotional distress . . . was severe enough that it
resulted in illness and may result in further illness or
bodily harm. The conduct [of the defendant] was the
cause of the plaintiff’s distress.’’
As the plaintiff noted in her memorandum of law
in opposition to the motion to dismiss, the negligent
infliction of emotional distress claim set forth in count
two ‘‘is not based upon or incident to a claim of medical
negligence, but rather, is based upon her claim of bat-
tery against the defendant in count one.’’ Although
count two does not explicitly reference the term ‘‘con-
sent,’’ we are mindful that, in construing a particular
cause of action, ‘‘[t]he complaint must be read in its
entirety in such a way as to give effect to the pleading
with reference to the general theory upon which it pro-
ceeded . . . .’’ (Internal quotation marks omitted.)
Perry v. Valerio, 167 Conn. App. 734, 739–40, 143 A.3d
1202 (2016). Read broadly and realistically, count two
plainly alleges that the plaintiff suffered emotional dis-
tress occasioned by the alleged battery perpetrated by
the defendant, as detailed in the preceding count of the
complaint. Both counts one and two claim that the
defendant, without warning or notice to the plaintiff,
digitally separated her agglutinated labia. The factual
issues of whether warnings and notice were provided
to the plaintiff, in turn, both pertain to the issue of
informed consent. See, e.g., Duffy v. Flagg, 279 Conn.
682, 692, 905 A.2d 15 (2006) (physician must disclose,
inter alia, nature of procedure and risks and hazards of
procedure to patient ‘‘in order to obtain valid informed
consent’’); Janusauskas v. Fichman, 264 Conn. 796,
810, 826 A.2d 1066 (2003) (informed consent requires
physician to provide patient with information that rea-
sonable patient would have found material for making
decision whether to embark upon contemplated course
of treatment). We therefore agree with the plaintiff that
both counts one and two advanced claims related to
her general theory that there was a lack of informed
consent to the defendant’s conduct during the postoper-
ative examination.
Like count one, count two contains no allegations
that the defendant deviated from an applicable standard
of care. It thus cannot properly be construed under our
law as a claim of medical negligence. See Dias v. Grady,
supra, 292 Conn. 359 (‘‘the phrase ‘medical negligence,’
as used in § 52-190a (a), means breach of the standard of
care’’). As the trial judge aptly observed in an unrelated
case, ‘‘[i]n a medical negligence claim, a treating physi-
cian must be found to have breached a standard of care
applicable to the patient. . . . By contrast, a claim of
negligent infliction of emotional distress need not nec-
essarily involve a breach of the applicable standard of
care by the treating physician. If the plaintiff’s fear
or distress was reasonable, in light of the defendant’s
conduct, and the defendant should have realized that
his conduct created an unreasonable risk of causing
distress, there is a basis for liability.’’ (Citations omit-
ted.) Brown v. Cusick, Superior Court, judicial district
of Fairfield, Docket No. CV-XX-XXXXXXX-S (October 2,
2017); see also Brown v. Njoku, 170 Conn. App. 329,
331, 154 A.3d 587 (affirming judgment awarding plaintiff
$35,000 in damages following court trial in action for,
inter alia, battery and negligent infliction of emotional
distress against physician who ‘‘inappropriately
touched [her] buttocks and breasts’’), cert. denied, 326
Conn. 901, 162 A.3d 724 (2017).
Because count two lacks any allegation that the
defendant departed from the applicable standard of
care, it cannot be deemed a claim of medical negligence
subject to the requirements of § 52-190a. Rather, it more
properly is construed as one derivative of the plaintiff’s
battery claim, for it concerns her general theory that the
defendant lacked informed consent to digitally separate
her agglutinated labia. For that reason, the court
improperly granted the defendant’s motion to dismiss
due to noncompliance with § 52-190a.
II
Normally, our determination that a motion to dismiss
was improperly granted would conclude our inquiry. In
the present case, however, the court granted the motion
to dismiss without prejudice to the plaintiff’s pursuit
of an action against the defendant for lack of informed
consent. After filing a notice of intent to appeal from
that dismissal; see footnote 7 of this opinion; the plain-
tiff then obtained permission from the court to file
an amended pleading, on which the court ultimately
rendered summary judgment in favor of the defendant.
The plaintiff now challenges the propriety of that deter-
mination.
On appeal, the plaintiff claims that the court improp-
erly concluded, as a matter of law, that she could not
prevail in an informed consent action because the
defendant’s conduct in separating her agglutinated labia
was not a separate procedure or course of treatment
giving rise to a duty to obtain informed consent. She
contends that a substantial change in circumstances
occurred when the defendant discovered a complica-
tion during the postoperative examination that required
medical intervention, which in turn obligated the defen-
dant to obtain her informed consent before proceeding
further. The parties agree that this issue is one of first
impression in Connecticut. Accordingly, we first review
the doctrine of informed consent to determine the
proper legal standard by which to measure the plaintiff’s
claim. We then apply that standard to the facts before
us, ever mindful of the procedural posture of this case.
A
The doctrine of informed consent traces its origins
to the common-law notion that an adult ‘‘has a right to
determine what shall be done with his own body; and
a surgeon who performs an operation without his
patient’s consent, commits an assault, for which he is
liable in damages.’’ (Internal quotation marks omitted.)
Schmeltz v. Tracy, supra, 119 Conn. 495–96, quoting
Schloendorff v. New York Hospital, 211 N.Y. 125, 129–
30, 105 N.E. 92 (1914) (Cardozo, J.), overruled on other
grounds by Bing v. Thunig, 2 N.Y.2d 656, 143 N.E.2d
3, 163 N.Y.S.2d 3 (1957); see also Union Pacific Railway
Co. v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 35 L.
Ed. 734 (1891) (‘‘[n]o right is held more sacred, or is
more carefully guarded, by the common law, than the
right of every individual to the possession and control
of his own person, free from all restraint or interference
of others, unless by clear and unquestionable authority
of law’’); Abigail Alliance for Better Access to Develop-
mental Drugs v. von Eschenbach, 495 F.3d 695, 717
(D.C. Cir. 2007) (en banc) (courts have long ‘‘recognized
with universal acquiescence that the free citizen’s first
and greatest right, which underlies all others, is the
right to the inviolability of his person’’ [internal quota-
tion marks omitted]), cert. denied, 552 U.S. 1159, 128
S. Ct. 1069, 169 L. Ed. 2d 839 (2008). As the United
States Supreme Court has recognized, the ‘‘notion of
bodily integrity [is] embodied in the requirement that
informed consent is generally required for medical
treatment.’’ Cruzan v. Director, Missouri Dept. of
Health, 497 U.S. 261, 269, 110 S. Ct. 2841, 111 L. Ed. 2d
224 (1990).
The doctrine of informed consent attempts to balance
the autonomy of the patient with the professional obli-
gations of the physician.13 In the seminal decision of
Canterbury v. Spence, supra, 464 F.2d 780, the United
States Court of Appeals for the District of Columbia
Circuit explained that ‘‘[t]rue consent to what happens
to one’s self is the informed exercise of a choice, and
that entails an opportunity to evaluate knowledgeably
the options available and the risks attendant upon each.
The average patient has little or no understanding of
the medical arts, and ordinarily has only his physician
to whom he can look for enlightenment with which to
reach an intelligent decision. From these almost axiom-
atic considerations springs the need, and in turn the
requirement, of a reasonable divulgence by physician
to patient to make such a decision possible.’’ (Footnotes
omitted.) The court continued: ‘‘A physician is under a
duty to treat his patient skillfully but proficiency in
diagnosis and therapy is not the full measure of his
responsibility. . . . [T]he physician is under an obliga-
tion to communicate specific information to the patient
when the exigencies of reasonable care call for it. . . .
The context in which the duty of risk-disclosure arises
is invariably the occasion for decision as to whether a
particular treatment procedure is to be undertaken. To
the physician, whose training enables a self-satisfying
evaluation, the answer may seem clear, but it is the
prerogative of the patient, not the physician, to deter-
mine for himself the direction in which his interests
seem to lie. To enable the patient to chart his course
understandably, some familiarity with the therapeutic
alternatives and their hazards becomes essential.’’
(Footnotes omitted.) Id., 781. For that reason, the court
held that ‘‘the physician’s overall obligation to the
patient [includes the] duty of reasonable disclosure of
the choices with respect to proposed therapy and the
dangers inherently and potentially involved.’’ Id., 782.
Accordingly, a physician ‘‘must seek and secure his
patient’s consent before commencing an operation or
other course of treatment.’’14 Id.
The doctrine of informed consent ‘‘is embedded
firmly in American jurisprudence, now forming a recog-
nizable basis for physician liability in the [fifty] [s]tates
and the District of Columbia.’’ J. Merz, ‘‘On a Decision-
Making Paradigm of Medical Informed Consent,’’ 14 J.
Legal Med. 231, 231 (1993). In Connecticut, ‘‘[i]nformed
consent requires a physician to provide the patient with
the information which a reasonable patient would have
found material for making a decision whether to embark
upon a contemplated course of therapy.’’ (Internal quo-
tation marks omitted.) Janusauskas v. Fichman, supra,
264 Conn. 810; accord Canterbury v. Spence, supra, 464
F.2d 787 (‘‘[a] risk is . . . material when a reasonable
person . . . would be likely to attach significance to
the risk . . . in deciding whether or not to forego the
proposed therapy’’ [internal quotation marks omitted]).
As our Supreme Court held in Logan v. Greenwich
Hospital Assn., supra, 191 Conn. 292, ‘‘the physician’s
disclosure should include: (1) the nature of the proce-
dure, (2) the risks and hazards of the procedure, (3) the
alternatives to the procedure, and (4) the anticipated
benefits of the procedure.’’ (Internal quotation marks
omitted.)
At the same time, our Supreme Court has emphasized
that the doctrine of informed consent ‘‘is a limited one’’
that requires ‘‘something less than a full disclosure of
all information which may have some bearing, however
remote, upon the patient’s decision.’’15 (Internal quota-
tion marks omitted.) Duffy v. Flagg, supra, 279 Conn.
692–93; see also Munn v. Hotchkiss School, 326 Conn.
540, 605, 165 A.3d 1167 (2017) (Espinosa, J., concur-
ring) (‘‘a physician need not disclose to patients every
remote risk potentially associated with a medical proce-
dure but only those deemed sufficiently likely as to be
material’’); Pedersen v. Vahidy, 209 Conn. 510, 523, 552
A.2d 419 (1989) (disclosure generally unnecessary when
‘‘the likelihood of such injury is remote’’); Precourt v.
Frederick, 395 Mass. 689, 694–95, 481 N.E.2d 1144(1985) (‘‘The materiality of information about a poten-
tial injury is a function not only of the severity of the
injury, but also of the likelihood that it will occur.
Regardless of the severity of a potential injury, if the
probability that the injury will occur is so small as to
be practically nonexistent, then the possibility of that
injury occurring cannot be considered a material factor
in a rational assessment of whether to engage in the
activity that exposes one to the potential injury.’’). Fur-
thermore, ‘‘there is no need to disclose risks that are
likely to be known by the average patient or that are
in fact known to the patient usually because of a past
experience with the procedure in question.’’ (Internal
quotation marks omitted.) Logan v. Greenwich Hospi-
tal Assn., supra, 191 Conn. 292. A physician nonetheless
is obligated ‘‘to advise a patient of feasible alternatives’’;
id., 287; even when ‘‘some involve more hazard than
others.’’ Id., 295.
Under Connecticut law, application of the doctrine
of informed consent is not confined to operations and
surgical procedures. Rather, it concerns the physician’s
‘‘duty to provide patients with material information con-
cerning a proposed course of treatment.’’ Downs v.
Trias, 306 Conn. 81, 89, 49 A.3d 180 (2012); see also
Logan v. Greenwich Hospital Assn., supra, 191 Conn.
292–93 (physician obligated to provide patient with
information ‘‘material for making a decision whether
to embark upon a contemplated course of therapy’’).
A contemplated course of therapy includes—but is not
limited to—a particular procedure, operation, or sur-
gery. See Torres v. Carrese, supra, 149 Conn. App. 622.16
For example, in Curran v. Kroll, 303 Conn. 845, 859–60,
37 A.3d 700 (2012), the patient sought medical treatment
for menopausal issues. Our Supreme Court held that
the failure of the defendant physician to advise the
patient of ‘‘any symptoms and risks associated’’ with
the birth control medication that the physician had pre-
scribed gave rise to ‘‘a cause of action for lack of
informed consent.’’ Id., 858; see also Johnson v. Rheu-
matology Associates, P.C., Superior Court, judicial
district of Hartford, Docket No. CV-XX-XXXXXXX-S
(December 29, 2014) (59 Conn. L. Rptr. 549, 550)
(‘‘[o]bviously treatment of a condition by the prescrib-
ing of medication is no less a form of treatment than
surgery for a condition’’). Our Supreme Court likewise
has held that the nonsurgical procedure of obtaining a
blood transfusion constituted a course of therapy and,
thus, properly could give rise to a cause of action for
lack of informed consent. Sherwood v. Danbury Hospi-
tal, supra, 278 Conn. 180–82. Accordingly, the doctrine
of informed consent applies to a course of medical
treatment undertaken by a patient in consultation with
a medical practitioner.
1
In the present case, the parties do not dispute that
the defendant obtained the informed consent of the
plaintiff to perform the laser ablation of her vulva on
April 25, 2014. Indeed, her consent was memorialized on
the signed consent form. The plaintiff further concedes
that she consented, as part of that course of treatment,
to the May 14, 2014 postoperative examination.17 The
plaintiff nonetheless argues that a substantial and mate-
rial change in circumstances occurred when the defen-
dant discovered the labial agglutination, which
obligated the defendant to obtain her informed consent
before embarking on a course of treatment therefor.18
That claim presents an issue of first impression in this
state. For his part, the defendant in his appellate brief
acknowledges that a ‘‘new informed consent’’ may be
required when ‘‘a substantial and material change in
circumstances’’ arises during a course of treatment.
The ‘‘determination of the proper legal standard in
any given case is a question of law subject to our plenary
review.’’ (Internal quotation marks omitted.) Mirjavadi
v. Vakilzadeh, 310 Conn. 176, 183, 74 A.3d 1278 (2013).
In light of the rationale underlying the doctrine of
informed consent, as well as persuasive out-of-state
authority, we agree with the parties that, when a sub-
stantial and material change in circumstances occurs
during the course of medical treatment, a duty may
arise on the part of the physician to secure the consent
of the patient before proceeding further.
The doctrine of informed consent is rooted in the
recognition of a patient’s right to bodily autonomy. See
Logan v. Greenwich Hospital Assn., supra, 191 Conn.
288 (‘‘[w]e have approved the principle that [e]very
human being of adult years and sound mind has a right
to determine what shall be done with his own body’’
[internal quotation marks omitted]). The doctrine fur-
ther is premised on the precept that ‘‘[t]rue consent to
what happens to one’s self is the informed exercise of
a choice, and that entails an opportunity to evaluate
knowledgeably the options available and the risks atten-
dant upon each.’’ Canterbury v. Spence, supra, 464 F.2d
780; see also Logan v. Greenwich Hospital Assn., supra,
295 (physician obligated to advise patient of ‘‘all viable
alternatives . . . even though some involve more haz-
ard than others’’). Accordingly, a physician is required
to provide the patient with that information which a
reasonable person would deem material in deciding
whether to embark upon a particular course of treat-
ment.19 Sherwood v. Danbury Hospital, supra, 278
Conn. 180.
Significantly, our decisions on the doctrine of
informed consent do not limit that duty to the actual
date that a particular procedure is performed or medical
service is rendered. Rather, Connecticut law consis-
tently has delineated that duty as one that applies to a
‘‘course of treatment’’; see, e.g., Downs v. Trias, supra,
306 Conn. 89; or a ‘‘course of therapy’’ undertaken by
a patient. See Logan v. Greenwich Hospital Assn.,
supra, 191 Conn. 293. While a physician’s treatment of
a patient sometimes begins and ends in a matter of
hours or days, a course of treatment often transpires
over a much longer period. See, e.g., Curran v. Kroll,
supra, 303 Conn. 848 (medical treatment of patient
occurred over span of ‘‘approximately one month
before her death’’ [internal quotation marks omitted]);
Tetreault v. Eslick, 271 Conn. 466, 469, 857 A.2d 888(2004) (physician ‘‘planned to continue [the] course of
treatment for a period of at least six months’’).
As the Supreme Court of Wisconsin has observed,
a patient’s consent to treatment is not ‘‘categorically
immutable’’ once it has been given to a physician.
Schreiber v. Physicians Ins. Co. of Wisconsin, 223 Wis.
2d 417, 429, 588 N.W.2d 26, cert. denied, 528 U.S. 869, 120
S. Ct. 169, 145 L. Ed. 2d 143 (1999). When a substantial
change of circumstances occurs during the course of
medical treatment, it ‘‘results in an alteration of the
universe of options a patient has and alters the agreed
upon course of navigation through that universe.’’20 Id.,
432. Although a patient previously may have provided
informed consent to a particular course of treatment,
the Supreme Court of Wisconsin ‘‘decline[d] to view
the informed consent discussion as a solitary and blan-
keting event, a point on a timeline after which such
discussions are no longer needed because they are ‘cov-
ered’ by some articulable occurrence in the past. Rather,
a substantial change in circumstances . . . requires a
new informed consent discussion. . . . To conclude
otherwise would allow a solitary informed consent dis-
cussion to immunize a physician for any and all subse-
quent treatment of that patient.’’ (Citation omitted.) Id.,433–34. The court, thus, concluded that, when a sub-
stantial change in circumstances arises, the physician
has ‘‘a duty to conduct another informed consent dis-
cussion and [provide the patient with] her treatment
options and . . . the opportunity to choose.’’21 Id., 434.
The Supreme Court of Colorado likewise has recog-
nized that, when a ‘‘previously undisclosed, and sub-
stantial risk arises,’’ a physician may have a ‘‘duty [to
obtain informed consent that is] based on changed cir-
cumstances.’’ Gorab v. Zook, 943 P.2d 423, 430 (Colo.
1997) (en banc).
We find that authority highly persuasive, particularly
in light of the underpinnings of the doctrine of informed
consent. When consent is provided by a patient in a
given case, its scope necessarily is limited to the course
of treatment outlined by the medical practitioner, and
encompasses only those risks, hazards, alternatives,
and anticipated benefits then disclosed. For that reason,
when a truly substantial change arises during the course
of treatment that meets the standard of materiality
under our law,22 we agree that the medical practitioner
generally is obligated to obtain consent from the patient
before proceeding further. To conclude otherwise
would contravene the fundamental purpose of the doc-
trine of informed consent.
2
At the same time, the circumstances in which sub-
stantial changes arise do not always lend themselves
to such a dialogue between patient and physician. For
that reason, a physician’s duty to secure informed con-
sent is not an absolute one, but rather is contingent on
the particular context in which it arises. To accommo-
date the exigencies inherent in the practice of medicine,
courts have crafted exceptions to the physician’s gen-
eral duty that excuse the failure to obtain such consent
in certain circumstances.23 See generally A. Meisel, ‘‘The
‘Exceptions’ to the Informed Consent Doctrine: Striking
a Balance Between Competing Values in Medical Deci-
sionmaking,’’ 1979 Wis. L. Rev. 413 (1979). As the
Supreme Court of Iowa recently observed, ‘‘a number
of situations may be established by the defendant physi-
cian as a defense to an informed consent action, consti-
tuting exceptions to the duty to disclo[se]. These
include: (1) Situations in which complete and candid
disclosure might have a detrimental effect on the physi-
cal or psychological well-being of the patient;24 (2) Situa-
tions in which a patient is incapable of giving consent
by reason of mental disability or infancy; (3) Situations
in which an emergency makes it impractical to obtain
consent; (4) Situations in which the risk is either known
to the patient or is so obvious as to justify a presumption
on the part of the physician that the patient has knowl-
edge of the risk; (5) Situations in which the procedure
itself is simple and the danger remote and commonly
appreciated to be remote; (6) Situations in which the
physician does not know of an otherwise material risk
and should not have been aware of it in the exercise
of ordinary care.’’25 (Footnote added; internal quotation
marks omitted.) Andersen v. Khanna, 913 N.W.2d 526,
537 n.4 (Iowa 2018); see also Holt v. Nelson, 11 Wn.
App. 230, 240–41, 523 P.2d 211 (1974) (enumerating
various exceptions).
The emergency exception has been recognized by
courts across the country. See Shine v. Vega, 429 Mass.
456, 464, 709 N.E.2d 58 (1999) (‘‘[t]he emergency excep-
tion to the informed consent doctrine has been widely
recognized’’); Miller v. Rhode Island Hospital, 625 A.2d
778, 784 (R.I. 1993) (‘‘[e]qually as well established as
the informed consent doctrine is the exception to it for
emergencies’’). As the court in Canterbury explained,
the emergency exception ‘‘comes into play when the
patient is unconscious or otherwise incapable of con-
senting, and harm from a failure to treat is imminent
and outweighs any harm threatened by the proposed
treatment. When a genuine emergency of that sort
arises, it is settled that the impracticality of conferring
with the patient dispenses with need for it.’’ Canterbury
v. Spence, supra, 464 F.2d 788–89. Put simply, ‘‘a physi-
cian is not required to obtain the patient’s consent in an
emergency situation where the patient is in immediate
danger.’’ Wheeldon v. Madison, 374 N.W.2d 367, 375
(S.D. 1985). Although our appellate courts have not had
occasion to circumscribe the precise parameters of the
emergency exception, it applies under our state regula-
tions to medical treatment performed in hospitals
throughout Connecticut. See Regs., Conn. State Agen-
cies § 19-13-D3 (d) (8);26 cf. In re Cassandra C., 316
Conn. 476, 496–97, 112 A.3d 158 (2015) (‘‘[A]t common
law, minors generally were considered to lack the legal
capacity to give valid consent to medical treatment or
services, and consequently a parent, guardian, or other
legally authorized person generally was required to pro-
vide the requisite consent. In the absence of an emer-
gency, a physician who provided medical care to a
minor without such parental or other legally authorized
consent could be sued for battery.’’ [Emphasis added;
internal quotation marks omitted.]); Ranciato v.
Schwartz, Superior Court, judicial district of New
Haven, Docket No. CV-XX-XXXXXXX-S (November 26,
2014) (‘‘in the absence of an emergency a healthcare
provider must offer pertinent information to his or her
patients’’ [internal quotation marks omitted]).
Courts also have recognized that a physician’s alleged
failure to secure informed consent properly is excused
by the existence of a valid waiver on the part of the
patient. See, e.g., Arato v. Avedon, 5 Cal. 4th 1172, 1189,
858 P.2d 598, 23 Cal. Rptr. 2d 131 (1993) (en banc) (‘‘a
patient may validly waive the right to be informed’’);
Spar v. Cha, 907 N.E.2d 974, 983 (Ind. 2009) (‘‘[m]any
jurisdictions recognize either by judicial ruling or stat-
ute that a patient may waive her right to informed con-
sent’’); cf. Utah Code Ann. § 78B-3-406 (3) (2012).27 For
that reason, ‘‘[w]hen a patient consents to surgery,
acknowledges he or she understands complications
may arise, and authorizes the doctor to remedy these
complications, it follows that the patient has consented
to treatment of those complications whether they occur
in the operating room or afterward in the recovery
room.’’ Hageny v. Bodensteiner, 316 Wis. 2d 240, 250–
51, 762 N.W.2d 452 (App. 2008); see also Cobbs v. Grant,
8 Cal. 3d 229, 245, 502 P.2d 1, 104 Cal. Rptr. 505 (1972)
(en banc) (‘‘a medical doctor need not make disclosure
of risks when the patient requests that he not be so
informed’’); Holt v. Nelson, supra, 11 Wn. App. 241 (‘‘[a]
physician need not disclose the hazards of treatment
when the patient has requested she not be told about
the dangers’’). The patient’s ability to relieve a physician
of the duty to obtain informed consent during the course
of medical treatment is consistent with, and in further-
ance of, the right to bodily autonomy. As one commenta-
tor aptly noted, ‘‘[a] properly obtained waiver is
completely in keeping with the values sought to be
promoted by informed consent. The patient remains
the ultimate decisionmaker, but the content of his deci-
sion is shifted from the decisional level to the metade-
cisional level—from the equivalent of ‘I want this
treatment . . .’ to . . . ‘I don’t want to decide; you
make the decision as to what should be done.’ Waiver
thus permits the patient to be treated without participat-
ing in the medical decisionmaking process, or at least
without fully participating.’’ (Footnote omitted.) A.
Meisel, supra, 1979 Wis. L. Rev. 459.
In Logan v. Greenwich Hospital Assn., supra, 191
Conn. 292, our Supreme Court acknowledged an addi-
tional exception, noting that ‘‘there is no need to dis-
close risks that are likely to be known by the average
patient or that are in fact known to the patient usually
because of a past experience with the procedure in
question.’’ (Internal quotation marks omitted.) See also
Ranciato v. Schwartz, supra, Superior Court, Docket
No. CV-XX-XXXXXXX-S (plaintiff could not prevail on
informed consent claim when ‘‘she knew of [the] risk
due to past experience’’); Crain v. Allison, 443 A.2d
558, 562 (D.C. 1982) (‘‘a physician need not advise con-
cerning risks of which the patient already has actual
knowledge’’); Spar v. Cha, supra, 907 N.E.2d 984 (physi-
cian need not advise of risks known to patient because
of past experience with procedure); Sard v. Hardy, 281
Md. 432, 445, 379 A.2d 1014 (1977) (‘‘disclosure is not
required where the risk is . . . known to the patient’’);
Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d
1, 12–13, 227 N.W.2d 647 (1975) (physician ‘‘should not
be required to discuss risks that are apparent or known
to the patient’’). The rationale for that exception is that
the patient who is aware of the risks that accompany
a particular procedure or course of treatment already
is an informed patient.
Application of the doctrine of informed consent,
therefore, involves more than simply an examination of
the communications, or lack thereof, between physician
and patient. It also requires consideration of the context
in which the physician’s duty arose. That context is
crucial to the determination of whether an exception
to that duty is implicated. Moreover, in an action predi-
cated on an alleged lack of informed consent, ‘‘[t]he
burden of proving an exception to [the] duty’’ rests with
the physician. Scott v. Bradford, 606 P.2d 554, 558 (Okla.
1979); see also Canterbury v. Spence, supra, 464 F.2d
791 (‘‘[t]he burden of going forward with evidence per-
taining to a privilege not to disclose . . . rests properly
upon the physician’’ [footnote omitted]); Cobbs v.
Grant, supra, 8 Cal. 3d 245 (physician bears ‘‘the burden
of [proving] justification for failure to disclose’’); Shine
v. Vega, supra, 429 Mass. 462 (‘‘the [defendant physician
and hospital] had the burden of proving that an excep-
tion relieved them of tort liability’’).
3
Accordingly, we conclude that, when a substantial
and material alteration of the risks, anticipated benefits,
or alternatives previously disclosed to the patient
occurs during a course of medical treatment, the doc-
trine of informed consent generally requires an addi-
tional informed consent discussion between physician
and patient. When, however, the context of such alter-
ation implicates an exception to the duty to disclose,
the law relieves the physician of that obligation. With
that analytical framework in mind, we return our atten-
tion to the present case.
B
In her revised complaint, the plaintiff alleges a cause
of action for lack of informed consent. Distilled to its
essence, her claim is that, upon discovering a complica-
tion that required medical intervention, the defendant
unilaterally proceeded with a course of treatment with-
out obtaining her informed consent. The court subse-
quently rendered summary judgment in favor of the
defendant, concluding that the defendant’s conduct in
separating the plaintiff’s agglutinated labia was not a
separate procedure or course of treatment giving rise
to a duty to obtain informed consent, but rather ‘‘was
part of another examination for which the [defendant]
received the written consent of the plaintiff.’’ On appeal,
the plaintiff challenges the propriety of that determi-
nation.
Summary judgment is appropriate when ‘‘the plead-
ings, affidavits 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.’’ Practice Book § 17-49; Miller v. United Technol-
ogies Corp., 233 Conn. 732, 744–45, 660 A.2d 810 (1995).
A material fact is one ‘‘that will make a difference in the
result of the case.’’ (Internal quotation marks omitted.)
Straw Pond Associates, LLC v. Fitzpatrick, Mariano &
Santos, P.C., 167 Conn. App. 691, 728, 145 A.3d 292,
cert. denied, 323 Conn. 930, 150 A.3d 231 (2016). ‘‘In
seeking summary judgment, it is the movant who has
the burden of showing the nonexistence of any issue
of fact. The courts are in entire agreement that the
moving party for summary judgment has the burden of
showing the absence of any genuine issue as to all the
material facts, which, under applicable principles of
substantive law, entitle him to a judgment as a matter
of law. The courts hold the movant to a strict standard.
To satisfy his burden the movant must make a showing
that it is quite clear what the truth is, and that excludes
any real doubt as to the existence of any genuine issue
of material fact. . . . As the burden of proof is on the
movant, the evidence must be viewed in the light most
favorable to the opponent. . . . When documents sub-
mitted in support of a motion for summary judgment
fail to establish that there is no genuine issue of material
fact, the nonmoving party has no obligation to submit
documents establishing the existence of such an issue.
. . . Once the moving party has met its burden, how-
ever, the opposing party must present evidence that
demonstrates the existence of some disputed factual
issue. . . . It is not enough, however, for the opposing
party merely to assert the existence of such a disputed
issue. Mere assertions of fact . . . are insufficient to
establish the existence of a material fact and, therefore,
cannot refute evidence properly presented to the court
under Practice Book § [17-45]. . . . Our review of the
trial court’s decision to grant [a] motion for summary
judgment is plenary.’’ (Internal quotation marks omit-
ted.) Todd v. Nationwide Mutual Ins. Co., 121 Conn.
App. 597, 601–602, 999 A.2d 761, cert. denied, 297 Conn.
929, 998 A.2d 1196 (2010).
The following additional facts, as gleaned from the
pleadings, affidavits, and other proof submitted when
viewed in a light most favorable to the plaintiff; Marti-
nelli v. Fusi, 290 Conn. 347, 350, 963 A.2d 640 (2009);
are relevant to the plaintiff’s claim. We begin by noting
what is not in dispute. Years prior to the medical treat-
ment at issue in this appeal, the defendant performed
a laser ablation of the plaintiff’s vulva to remove precan-
cerous growths. Prior to performing that procedure on
August 25, 2011, the defendant discussed the procedure
with the plaintiff and she signed a consent form so
indicating. After the procedure concluded, the plaintiff
was provided lidocaine gel as a preventative measure
to avoid labial agglutination.28 The defendant at that
time cautioned the plaintiff that ‘‘she should quit smok-
ing or else she would end up needing the procedure
again.’’ Weeks later, the defendant conducted a postop-
erative examination of the surgical site to ensure that
it was healing properly. No complications were discov-
ered during that examination.
When precancerous growths later returned, the plain-
tiff again consulted with the defendant. The defendant
discussed the laser ablation treatment with the plaintiff,
who then signed a standardized consent form. That
form stated in relevant part that the defendant ‘‘has
explained to me in a way that I understand: (a) the
nature and purpose of the procedure(s); (b) the poten-
tial benefits and risks of the procedure(s) including
bleeding, infection, accidental injury of other body
parts, failure to permanently improve my condition or,
death, as well as the potential risks and benefits of the
medications that may be administered to me as part of
the procedure; and (c) the alternative(s) to the proce-
dure(s) and their potential risks and benefits, including
the option of not having the procedure.’’ The consent
form also authorized the defendant ‘‘to do whatever may
be necessary if there is a complication or unforeseen
condition during my procedure.’’
The defendant performed a second laser ablation to
remove precancerous growths on the plaintiff’s vulva
on April 25, 2014. When that procedure concluded, the
plaintiff again was provided with lidocaine gel and was
advised to schedule a postoperative examination ‘‘so
that [the defendant] could examine the surgical site and
make sure that it was healing properly.’’ The defendant
conducted that examination approximately three weeks
later, on May 14, 2014. Four individuals were present at
that examination: the plaintiff, the defendant, Andersen,
and an unidentified nurse. It is undisputed that the
plaintiff consented to the postoperative examination.
See footnote 17 of this opinion.
After arriving at the Yale University Gynecologic Cen-
ter, the plaintiff undressed and placed her legs in stir-
rups. The defendant began his examination with a visual
inspection of the plaintiff and then informed her that
‘‘everything looked fine.’’ The parties disagree as to
precisely what happened next.
In her operative complaint, the plaintiff alleged that
the defendant discovered the labial agglutination ‘‘dur-
ing’’ the postoperative examination; the defendant
admitted the truth of that allegation in his answer. The
plaintiff further alleged that the defendant at that time
embarked on a course of treatment for that complica-
tion without first obtaining her informed consent. More
specifically, the plaintiff alleged that the defendant
‘‘forcefully inserted his fingers through [her] aggluti-
nated labia’’ without informing her of ‘‘the nature of
the procedure,’’ its ‘‘risks and hazards,’’ its ‘‘anticipated
benefits,’’ and ‘‘any alternatives [when] other proce-
dures were available . . . .’’
In his November 4, 2016 affidavit, the defendant
described what transpired during the postoperative
examination as follows: ‘‘I informed [the plaintiff] that
I was going to examine her vagina. . . . In order to
observe the surgical site, I had to separate [her] labia.
As I did so, she yelped in pain. At that moment, I realized
that her labia had become agglutinated. I apologized
for causing her pain, and I continued with the examina-
tion. . . . Agglutination, which is the partial fusing of
skin, can occur after laser ablation surgery. It occurs
at the surgical site, which in [the plaintiff’s] case, was
on the interior of her labia. Because of that location,
there was no way for me to know if [her] labia were
agglutinated before trying to separate them to examine
the surgical site.’’ He continued: ‘‘If labia are aggluti-
nated two weeks after laser surgery, they must be sepa-
rated. Generally, the agglutination at that point is mild,
and it can be done in a split-second using a finger.
This is the least intrusive and most effective way of
separating agglutinated labia.’’ In his August 17, 2016
response to the plaintiff’s first set of interrogatories,
the defendant stated that although ‘‘[m]ore severely
agglutinated labia may require a surgical procedure,’’
the plaintiff’s labia were not agglutinated ‘‘to the degree
that . . . require[d] treatment or procedure.’’ The
defendant also acknowledged that, ‘‘[a]fter discovering
that [the plaintiff’s] labia were agglutinated during the
examination, I discussed with her that her labia had
agglutinated as a result of her laser ablation surgery.
. . . I informed her that she had agglutinated labia that
required separation. I told her I was sorry that I hurt
her by separating her agglutinated labia.’’ As he did in
his affidavit, the defendant stated in his response to
interrogatories that he ‘‘did not know that [the plain-
tiff’s] labia were agglutinated until [he] separated them
to perform [the] postoperative examination.’’
In opposing the motion for summary judgment, the
plaintiff provided a different account of those events. In
her sworn affidavit, she stated: ‘‘[W]hen the defendant
entered the room, he said that he was going to take a
look at me, and further stated that everything looked
fine. . . . Then, without warning, [he] forcefully
inserted his fingers into my vagina, separating an agglu-
tination . . . of my labia, which caused me severe pain.
. . . I cried out in pain as a result of the defendant
inserting his fingers through the agglutination, and [he]
expressed his concern that I may pass out as a result.
. . . The defendant stated that he performed this proce-
dure so that I would not have to go to the operating
room for surgery.’’ The plaintiff further stated that the
defendant provided ‘‘no warning or notice to [her] . . .
at any time before’’ he remedied the labial agglutination.
In her affidavit, Andersen likewise averred that the
defendant ‘‘expressed concern that the plaintiff may
pass out as a result of the separation of her agglutinated
labia’’ and then ‘‘stated that he performed [the] proce-
dure so that the plaintiff would not have to go to the
operating room for surgery.’’
Although the defendant claims that he ‘‘did not know
that [the plaintiff’s] labia were agglutinated until [he]
separated them,’’ the affidavits of the plaintiff and Ande-
rsen, read in the light most favorable to the plaintiff as
the nonmoving party; see Brooks v. Powers, 328 Conn.
256, 259, 178 A.3d 366 (2018); suggest otherwise. Those
affidavits allege that the defendant, after separating her
agglutinated labia, informed them that he ‘‘performed
[the] procedure so that the plaintiff would not have
to go to the operating room for surgery.’’29 (Emphasis
added.) Viewed in a manner most favorable to the plain-
tiff, the finder of fact could construe that purported
statement, in light of the defendant’s admission that
‘‘severely agglutinated labia may require a surgical pro-
cedure’’ and the significant pain experienced by the
plaintiff,30 as an admission that the defendant was aware
of two viable alternative treatments at the time that
he discovered the medical complication. See Logan v.
Greenwich Hospital Assn., supra, 191 Conn. 295 (‘‘all
viable alternatives [must] be disclosed even though
some involve more hazard than others’’).31 If the finder
of fact were to credit those affirmations, it reasonably
could conclude that the defendant discovered the com-
plication during his initial examination of the plaintiff
and then, without her informed consent, made a
unilateral decision to pursue a particular course of treat-
ment—digital separation—when another viable alter-
native existed.32
In light of the foregoing, we conclude that a genuine
issue of material fact exists as to whether the discovery
of the medical complication during the postoperative
examination constituted a substantial and material
change in circumstances, such that the defendant was
obligated to disclose the risks, anticipated benefits, and
viable alternatives to the plaintiff before embarking on
a course of treatment therefor.
That determination does not end our inquiry, as a
physician’s failure to obtain informed consent may be
excused in certain circumstances, such as when the
patient has authorized the physician to remedy compli-
cations that arise during a course of medical treatment.
See, e.g., Hageny v. Bodensteiner, supra, 316 Wis. 2d
250–51. In rendering summary judgment, the court con-
cluded that the materials submitted in connection with
the motion for summary judgment demonstrated that
the defendant’s conduct in remedying the labial aggluti-
nation was treatment ‘‘for which [the defendant]
received the written consent of the plaintiff.’’ We
disagree.
It is undisputed that, in the spring of 2014, the plain-
tiff, in consultation with the defendant, embarked on
a course of treatment for precancerous growths on her
vulva. That course of treatment included both the laser
ablation procedure that the defendant performed on
April 25, 2014, and the postoperative examination on
May 14, 2014.
The plaintiff’s informed consent is memorialized on
the consent form, a copy of which was submitted as
an exhibit to the defendant’s reply to the plaintiff’s
objection to the motion for summary judgment. That
written consent came on a standardized form titled
‘‘Yale-New Haven Hospital Consent for Operation or
Special Procedure.’’ The form provides in relevant part:
‘‘After discussing other options, including no treatment,
with [the defendant], I give [the defendant] permission
to perform the following surgery, procedure(s) or treat-
ment . . . CO2 Laser Ablation of Vulva.’’ The consent
form further stated: ‘‘I give permission to [the defen-
dant] to do whatever may be necessary if there is a
complication or unforeseen condition during my proce-
dure.’’ (Emphasis added.)
Undoubtedly, that signed consent vested the defen-
dant with discretion to deal with any complications
or unforeseen conditions that arose during the laser
ablation procedure performed on April 25, 2014. That
consent form nevertheless is silent as to postoperative
care. It confirms only that the plaintiff had discussed
the CO2 laser ablation procedure and ‘‘other options’’
with the defendant. The consent form contains no indi-
cation that the parties discussed the possibility of labial
agglutination or various medical treatments for that
complication. Indeed, in his November 4, 2016 affidavit,
the defendant attested that, as a matter of practice,
he does ‘‘not warn patients that their labia might be
agglutinated because most do not have agglutinated
labia.’’
Furthermore, paragraph 3 of the standardized con-
sent form begins by stating: ‘‘My responsible prac-
titioner has explained to me in a way that I understand:
(a) the nature and purpose of the procedure(s); (b)
the potential benefits and risks of the procedure(s)
including bleeding, infection, accidental injury of other
body parts, failure to permanently improve my condi-
tion or, death, as well as the potential risks and benefits
of the medications that may be administered to me as
part of the procedure; and (c) the alternative(s) to the
procedure(s) and their potential risks and benefits,
including the option of not having the procedure.’’ It
then states: ‘‘I understand that some possible complica-
tions of the procedure(s) include’’ followed by several
blank lines. That part of the consent form was left blank,
with no possible complications identified.
Read literally, and in the light most favorable to the
plaintiff as the nonmoving party, the consent form
authorized the defendant ‘‘to do whatever may be neces-
sary’’ only with respect to unforeseen complications
that arose during the April 25, 2014 laser ablation proce-
dure. The defendant has provided no evidence, such as
affidavit testimony indicating otherwise. Accordingly,
we conclude that a genuine issue of material fact exists
as to whether the plaintiff had authorized the defendant
to remedy unforeseen complications that arose not dur-
ing the April 25, 2014 laser ablation procedure, but
during the postoperative examination weeks later.
III
In sum, we conclude that the court improperly
granted the defendant’s motion to dismiss the battery
and negligent infliction of emotional distress counts of
the August 25, 2015 amended complaint due to noncom-
pliance with § 52-190a. We further conclude that the
court improperly rendered summary judgment in favor
of the defendant on the plaintiff’s February 8, 2016
revised complaint, as genuine issues of material fact
exist regarding the defendant’s discovery of a medical
complication during the postoperative examination.
The matter, therefore, must be remanded to the trial
court for further proceedings.
The judgment is reversed and the case is remanded
for further proceedings in accordance with this opinion.
In this opinion the other judges concurred.
1
The operative complaints in the present case also named Yale University
as a defendant and alleged negligent supervision on its part. The trial court
subsequently granted Yale University’s motion to dismiss that claim, and
the plaintiff has not appealed from that judgment. Furthermore, Yale Univer-
sity is not a party to this appeal. We therefore refer to Thomas J. Rutherford,
M.D., as the defendant in this opinion.
2
Ablation is the ‘‘[r]emoval of a body part or the destruction of its function,
as by a surgical procedure, morbid process, or noxious substance.’’ Sted-
man’s Medical Dictionary (27th Ed. 2000) p. 3.
3
Agglutination is the ‘‘[a]dhesion of the surfaces of a wound.’’ Stedman’s
Medical Dictionary (27th Ed. 2000) p. 35; see also Webster’s Third New
International Dictionary (2002) p. 41 (defining ‘‘agglutinate’’ as ‘‘joined with
or as if with glue’’).
4
General Statutes § 52-190a provides in relevant part: ‘‘(a) 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. The complaint, initial pleading or apportionment
complaint shall contain a certificate of the attorney or party filing the action
or apportionment complaint that such reasonable inquiry gave rise to a good
faith belief that grounds exist for an action against each named defendant
or for an apportionment complaint against each named apportionment defen-
dant. To show the existence of such good faith, the claimant or the claimant’s
attorney, and any apportionment complainant or the apportionment com-
plainant’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. . . .
‘‘(c) The failure to obtain and file the written opinion required by subsec-
tion (a) of this section shall be grounds for the dismissal of the action.’’
5
The plaintiff’s counsel stated that the plaintiff ‘‘consented to [the defen-
dant] examining her vagina. . . . [W]hat she didn’t consent to was his jam-
ming his fingers into her vagina forcibly to separate something, and she
[had] no knowledge of that procedure, she didn’t know that was going to
happen, and she . . . didn’t consent to that. . . . [S]he will testify that had
she known that [her labia were agglutinated], she would have asked for
more clarification of what the process was going to entail, whether she
could get some sort of pain medication. She had no idea—she consented
only to being examined, not to having the [defendant], without any warning,
jam his fingers into her vagina. . . . [T]hat’s why we [pleaded] it as a battery.
There’s no consent to what he did to her.’’
6
‘‘The classification of a negligence claim as either medical malpractice
or ordinary negligence requires a court to review closely the circumstances
under which the alleged negligence occurred. [P]rofessional negligence or
malpractice . . . [is] defined as the failure of one rendering professional
services to exercise that degree of skill and learning commonly applied under
all the circumstances in the community by the average prudent reputable
member of the profession with the result of injury, loss, or damage to the
recipient of those services. . . . Furthermore, malpractice presupposes
some improper conduct in the treatment or operative skill [or] . . . the
failure to exercise requisite medical skill . . . . From those definitions, we
conclude that the relevant considerations in determining whether a claim
sounds in medical malpractice are whether (1) the defendants are sued in
their capacities as medical professionals, (2) the alleged negligence is of a
specialized medical nature that arises out of the medical professional-patient
relationship, and (3) the alleged negligence is substantially related to medical
diagnosis or treatment and involved the exercise of medical judgment.’’
(Emphasis in original; internal quotation marks omitted.) Boone v. William
W. Backus Hospital, 272 Conn. 551, 562–63, 864 A.2d 1 (2005).
7
On November 9, 2015, the plaintiff filed a notice of intent to appeal the
ruling of the court granting the motion to dismiss, in which the plaintiff
stated that she ‘‘seeks to defer the taking of an appeal until a final judgment
that disposes of this case for all purposes and as to all parties is rendered.’’
The defendant did not object to that notice and has raised no claim with
respect thereto in this appeal.
8
To be clear, the plaintiff in the present case does not allege that labial
agglutination was a material risk of the laser ablation procedure that the
defendant had a duty to disclose prior to performing that procedure, nor
has she furnished any affidavits or other proof that would support such a
contention. The only evidence in the record before us regarding the risk
of labial agglutination is the defendant’s uncontroverted statement in his
November 4, 2016 affidavit indicating that labial agglutination is a rare
complication of the laser ablation procedure. See Logan v. Greenwich Hospi-
tal Assn., 191 Conn. 282, 291, 465 A.2d 294 (1983) (duty of informed consent
does not require disclosure of ‘‘all information which may have some bearing,
however remote, upon the patient’s decision’’); see also Munn v. Hotchkiss
School, 326 Conn. 540, 605, 165 A.3d 1167 (2017) (Espinosa, J., concurring)
(‘‘a physician need not disclose to patients every remote risk potentially
associated with a medical procedure but only those deemed sufficiently
likely as to be material’’); Pedersen v. Vahidy, 209 Conn. 510, 523, 552 A.2d
419 (1989) (disclosure generally unnecessary when ‘‘the likelihood of such
injury is remote’’). For that reason, the defendant emphasizes in his appellate
brief that the plaintiff ‘‘has never alleged, let alone offered evidence, that
agglutination is a ‘known material risk’ of CO2 laser ablation of the vulva
such that [the defendant] had a specific duty to warn her about it before
she consented to the original procedure. . . . [I]t has never been the plain-
tiff’s claim that [the defendant] failed to obtain her informed consent to the
laser ablation procedure.’’ On appeal, the plaintiff does not disagree with
that statement. Rather, her claim is altogether a different one—namely,
that the defendant, after discovering the labial agglutination during the
postoperative examination, embarked on a course of treatment to remedy
that complication without her consent.
9
In her principal appellate brief, the plaintiff briefly notes her objection
to the inclusion of her signed consent form as an exhibit to the defendant’s
reply brief. Nonetheless, she raised no objection to that exhibit before the
trial court, either in written form or during the February 6, 2017 hearing on
the motion for summary judgment, rendering that evidentiary objection
unpreserved.
10
At oral argument on the motion for summary judgment, the defendant’s
counsel conceded that ‘‘going into an operating room, of course,’’ constitutes
‘‘a separate course of therapy’’ for which a medical practitioner must obtain
‘‘a separate consent’’ from the patient.
11
We emphasize that the question before us in part I of this opinion is a
narrow one regarding the applicability of § 52-190a, and not whether the
plaintiff’s battery and negligent infliction of emotional distress counts, as
pleaded, could survive a motion to strike or a motion for summary judgment.
12
For that reason, the three part test for ascertaining whether a negligence
claim properly is classified as one sounding in medical negligence; see
footnote 6 of this opinion; is inapposite. The defendant’s reliance on 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), likewise is
misplaced. Unlike the present case, the plaintiff’s complaint in Votre
‘‘included factual allegations that implicated deviation from professional
medical standards,’’ a distinction that this court expressly deemed to be
significant. Id., 574. The court in Votre further emphasized that ‘‘[a]lthough
the plaintiff here denominated the claims in her complaint as sounding in
ordinary tort and breach of contract, the factual allegations underlying the
claims require proof of the defendants’ deviation from the applicable stan-
dard of care of a health care provider . . . .’’ Id., 580. That is not the case
when a cause of action is predicated on a lack of informed consent. Shortell
v. Cavanagh, 300 Conn. 383, 390–91, 15 A.3d 1042 (2011).
13
As one court succinctly put it, ‘‘[t]he doctor’s primary duty is to do what
is best for the patient.’’ Watson v. Clutts, 262 N.C. 153, 159, 136 S.E.2d 617(1964). For a discussion of the tension that arises when principles of patient
autonomy and physician beneficence collide, see P. Walter, ‘‘The Doctrine
of Informed Consent: To Inform or Not to Inform,’’ 71 St. John’s L. Rev.
543 (1997).
14
In Logan v. Greenwich Hospital Assn., supra, 191 Conn. 290–93, the
seminal Connecticut decision on the doctrine of informed consent, our
Supreme Court expressly adopted the reasoning of Canterbury in holding
that a lay standard of disclosure governs informed consent claims in Connect-
icut. See also Downs v. Trias, 306 Conn. 81, 88–89 n.5, 49 A.3d 180 (2012).
15
As the Supreme Court of Idaho has observed, ‘‘it would be impossible
for a healthcare provider to fully apprise his or her patients of every aspect
of each procedure. The human body is amazingly complex, and to fully
comprehend even the most mundane treatment one must have an advanced
understanding of anatomy and physiology. Without some limit on the amount
of information that a healthcare provider is obligated to discuss, our health-
care infrastructure would grind to a halt.’’ Peckham v. Idaho State Board
of Dentistry, 154 Idaho 846, 853, 303 P.3d 205 (2013).
16
In Torres, this court noted that ‘‘[o]ur 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 contemplated course of therapy, such as a
procedure, operation, or surgery.’’ (Emphasis added; internal quotation
marks omitted.) Torres v. Carrese, supra, 149 Conn. App. 622. In Torres,
the court concluded that a physician who provided prenatal care to a patient,
but was not the surgeon who subsequently performed a cesarean section,
had no duty to apprise her of the risks involved in that surgical procedure.
As the court explained, ‘‘[u]nder our law . . . a physician’s obligation to
obtain informed consent turns on the performance of a procedure and not
the intent to perform a procedure.’’ (Emphasis in original.) Id., 623. ‘‘Because
the procedure was to be performed in the future and [the physician who
provided prenatal care] was never in the position to be the operating surgeon,
[that physician] had no obligation to obtain informed consent.’’ Id., 623 n.30.
By contrast, the defendant in the present case performed both the laser
ablation procedure on April 25, 2014, and the postoperative examination of
the plaintiff on May 14, 2014.
17
At the October 19, 2015 hearing on the defendant’s motion to dismiss,
the plaintiff’s counsel acknowledged that the plaintiff had consented to the
postoperative examination. The plaintiff’s counsel likewise confirmed at
oral argument before this court that the plaintiff was ‘‘not contesting [that
she consented to] the postoperative examination.’’
18
We reiterate that the plaintiff has not claimed, at any stage of the
proceedings, that labial agglutination was a likely and, hence, material risk
that the defendant had a duty to disclose prior to performing the laser
ablation procedure. See footnote 8 of this opinion. Rather, her claim is
that, when that remote risk subsequently materialized, the defendant was
obligated to apprise her of all viable treatment alternatives and their atten-
dant risks and benefits before proceeding further.
19
That duty obligates a physician to disclose ‘‘(1) the nature of the proce-
dure, (2) the risks and hazards of the procedure, (3) the alternatives to the
procedure, and (4) the anticipated benefits of the procedure.’’ (Internal
quotation marks omitted.) Logan v. Greenwich Hospital Assn., supra, 191
Conn. 292.
20
As in Connecticut, the duty of informed consent under Wisconsin law
is measured by a materiality standard, for which ‘‘the touchstone [is whether
a] reasonable person in the position of the patient would want to know’’
of a given risk, benefit, or alternative to a particular course of treatment.
Schreiber v. Physicians Ins. Co. of Wisconsin, supra, 223 Wis. 2d 427; accord
Janusauskas v. Fichman, supra, 264 Conn. 810 (informed consent requires
physician to provide patient with information that reasonable patient would
have found material for making decision whether to embark upon contem-
plated course of treatment). In Schreiber, the court noted that a substantial
change in circumstances involves a material alteration of the risks, benefits,
or alternatives that accompany a particular treatment. Schreiber v. Physi-
cians Ins. Co. of Wisconsin, supra, 428–32.
21
That conclusion comports with the precept that ‘‘[t]he context in which
the [physician’s] duty [to disclose] arises is invariably the occasion for
decision as to whether a particular treatment procedure is to be undertaken.’’
Canterbury v. Spence, supra, 464 F.2d 781.
22
‘‘Materiality 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, 191 Conn. 291. Under Connecti-
cut law, a physician is obligated ‘‘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.’’ Id., 292–93;
see also Duffy v. Flagg, supra, 279 Conn. 691; Janusauskas v. Fichman,
supra, 264 Conn. 810; DeGennaro v. Tandon, 89 Conn. App. 183, 190, 873
A.2d 191, cert. denied, 274 Conn. 914, 879 A.2d 892 (2005).
23
Several of the exceptions that are well established in other jurisdictions
have not been formally recognized under Connecticut law. Their develop-
ment in those jurisdictions, therefore, is illuminating. See Grovenburg v.
Rustle Meadow Associates, LLC, 174 Conn. App. 18, 57, 165 A.3d 193 (2017).
24
‘‘[T]he so-called ‘therapeutic exception’ ’’; Arato v. Avedon, 5 Cal. 4th
1172, 1190, 858 P.2d 598, 23 Cal. Rptr. 2d 131 (1993) (en banc); permits ‘‘a
physician to withhold information where disclosure might jeopardize a
course of therapy.’’ Logan v. Greenwich Hospital Assn., supra, 191 Conn.
292; see also Scott v. Bradford, 606 P.2d 554, 558 (Okla. 1979) (‘‘where full
disclosure would be detrimental to a patient’s total care and best interests
a physician may withhold such disclosure, for example, where disclosure
would alarm an emotionally upset or apprehensive patient’’ [footnote
omitted]).
25
Some jurisdictions have enacted statutes codifying such exceptions.
See, e.g., Alaska Stat. § 09.55.556 (b) (2012); Del. Code Ann. tit. 18, § 6852(b) (1974); N.Y. Pub. Health Law § 2805-d (4) (2012); Utah Code Ann. § 78B-
3-406 (3) (2012); Wis. Stat. § 448.30 (Supp. 2017); Vt. Stat. Ann. tit. 12,
§ 1909 (2017).
26
Section 19-13-D3 (d) (8) provides: ‘‘Informed consent. It shall be the
responsibility of each hospital to assure that the bylaws or rules and regula-
tions of the medical staff include the requirement that, except in emergency
situations, the responsible physician shall obtain proper informed consent
as a prerequisite to any procedure or treatment for which it is appropriate
and provide evidence of consent by a form signed by the patient or a written
statement signed by the physician on the patient’s hospital record. The
extent of information to be supplied by the physician to the patient shall
include the specific procedure or treatment, or both, the reasonably foresee-
able risks, and reasonable alternatives for care or treatment.’’ (Emphasis
added.)
27
Utah’s informed consent statute specifically addresses the issue of
patient waiver. It provides in relevant part: ‘‘It shall be a defense to any
malpractice action against a health care provider based upon alleged failure
to obtain informed consent if . . . the patient stated, prior to receiving the
health care complained of, that he would accept the health care involved
regardless of the risk; or that he did not want to be informed of the matters
to which he would be entitled to be informed . . . or . . . the patient or
his representative executed a written consent which sets forth the nature
and purpose of the intended health care and which contains a declaration
that the patient accepts the risk of substantial and serious harm, if any,
in hopes of obtaining desired beneficial results of health care and which
acknowledges that health care providers involved have explained his condi-
tion and the proposed health care in a satisfactory manner and that all
questions asked about the health care and its attendant risks have been
answered in a manner satisfactory to the patient or his representative.’’
Utah Code Ann. § 78B-3-406 (3) (2012).
28
Although it is undisputed that the plaintiff was provided lidocaine gel,
there is no indication in the record that the defendant ever discussed the
risk of labial agglutination with the plaintiff. As the defendant acknowledged
in his November 4, 2016 affidavit: ‘‘I do not warn patients that their labia
might be agglutinated because most do not have agglutinated labia.’’ The
plaintiff in this case does not claim that labial agglutination was a material
risk that the defendant had a duty to disclose prior to performing the laser
ablation procedure. See footnote 8 of this opinion.
29
When used as a conjunction, the word ‘‘so’’ means ‘‘in order that’’ and
‘‘for that reason.’’ See Merriam-Webster’s Collegiate Dictionary (11th Ed.
2003) p. 1182.
30
It is undisputed that the plaintiff cried out in pain when the defendant
digitally separated her agglutinated labia. The affidavits of Andersen and
the plaintiff further aver that the defendant at that time expressed his
concern that the plaintiff was going to lose consciousness.
31
We note that the defendant, in his affidavit, stated that ‘‘[i]f labia are
agglutinated two weeks after laser surgery, they must be separated.’’ While
the defendant may simply have been articulating a professional medical
opinion, his statement nonetheless ignores the well established right of a
patient to refuse medical treatment, even when the patient’s life is in jeop-
ardy. See Cruzan v. Director, Missouri Dept. of Health, supra, 497 U.S.
278 (competent individuals have protected liberty interest under fourteenth
amendment to United States constitution to refuse unwanted medical treat-
ment); Stamford Hospital v. Vega, 236 Conn. 646, 666, 674 A.2d 821 (1996)
(‘‘[i]f the common law right to refuse medical treatment, based on the
doctrine of informed consent, is entitled to respect, that respect must be
accorded when the consequences are likely to be the most serious—in
matters of life and death’’). The plaintiff has argued, before both the trial
court and now this court on appeal, that she had a right ‘‘to refuse this
treatment even if it was considered necessary.’’
32
We reiterate that the defendant, in his response to interrogatories,
averred that he did not discover the agglutination until after he had finished
separating the plaintiff’s agglutinated labia. If that statement is credited, his
explanation to the plaintiff that he digitally separated the agglutination ‘‘so
that [she] would not have to go to the operating room for surgery’’ becomes
illogical, as a surgical option necessarily would have been impossible at
that point.