Jo Ann Pallacovitch v. Waterbury Hospital (2012)

MEMORANDUM OF DECISION RE MOTION TO STRIKE (# 108)

Preliminary Statement

This action for personal injuries arises out of a routine blood draw performed on the plaintiff at the defendant hospital.   The complaint sounds in both professional negligence and battery.   The defendant filed a motion to strike the battery counts.   The plaintiff opposes the motion.   For the reasons set forth below, the motion to strike is GRANTED.

Standard of Review

The role of the trial court in ruling on a motion to strike is to test to the legal sufficiency of a pleading.  RK Constructors, Inc v. Fusco Corp., 231 Conn. 381, 384 (1994).   The court must “examine the [complaint] construed in favor of the [plaintiff] to determine whether the [pleading party has] stated a legally sufficient cause of action.”  (Internal quotation marks omitted.)   Dodd v. Middlesex Mutual Assurance Co., 242 Conn. 375, 378 (1997).  “[I]f facts provable in the complaint would support a cause of action, the motion to strike must be denied ․ Moreover, [w]hat is reasonably implied [in an allegation] need not be expressly alleged.”  (Citation omitted;  internal quotation marks omitted.)  Lombard v. Edward J. Peters, Jr., P.C., 252 Conn. 623, 626 (2000).

For purposes of the motion to strike, the moving party admits all facts well pleaded.  RK Constructors, Inc., supra, at 383 n.2. The same is not so of legal conclusions and a motion to strike may be granted if the complaint alleges “mere conclusions of law that are unsupported by the facts alleged.”   Novametrix Medical Systems, Inc. v. BOC Group, Inc., 224 Conn. 210, 215 (1992).

Allegations

The plaintiff alleges in the medical malpractice count that she went to Waterbury Hospital for a routine blood draw.   The first vial of blood was extracted “without incident.”   When the technician “attempted a second vial, [the plaintiff] immediately experienced intense pain at the time of the puncture.”   The plaintiff “complained of the pain immediately and asked the technician to stop.”   The technician did not end the procedure and finished taking the requisite amount of blood from the plaintiff.¹  As a result, the plaintiff alleges that she suffered an arterial puncture, hematoma, mild compartment syndrome and reflex sympathetic dystrophy, which are painful and to some extent, permanent injuries.

In counts two and four, the battery counts, the plaintiff incorporates each of the allegations in the medical malpractice count.   She then avers:  “The above injuries were proximately caused by the defendant, through its agents, physically contacting or touching the plaintiff without her consent.”

Discussion

The defendant moves to strike the battery counts because the allegations do not support a cause of action for battery against a medical provider.   The defendant argues that the allegations make clear that the plaintiff consented to the blood draw procedure and therefore she cannot assert a claim of battery.   The plaintiff counters that the allegations make clear that she revoked her consent during the procedure and therefore any touching or contact which occurred thereafter supports a claim of battery.   Whether consent can be revoked in the middle of a procedure thereby exposing a medical provider to a battery claim appears to be a matter of first impression in Connecticut.

“Every 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 consent, commits an assault, for which he is liable in damages.”  Logan v. Greenwich Hospital Assn., 191 Conn. 282, 288 (1983), quoting, Schmeltz v. Tracy, 119 Conn. 492, 495–96 (1935).   In Logan, the Supreme Court identified those limited circumstances where a cause of action for assault and battery would lie in the medical provider-patient context.   They are:  (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 the physician realizes that the patient does not understand what the procedure entails.  Id. at 289.   See also, Godwin v. Danbury Eye Physicians Sugeons, P.C., 254 Conn. 131, 139 (2000).

Here, the pleadings are clear that the plaintiff consented to the blood draw procedure.   There is no claim that the technician performed a procedure other than that procedure to which consent was given.   Nor is there any allegation that the technician realized that the plaintiff did not understand what the blood draw was to entail.   At issue is whether the plaintiff revoked consent requiring the technician to end the procedure or to risk being held liable for battery.   In this vein, the plaintiff asks this court to adopt the reasoning of Mims v. Boland, 110 Ga.App. 477 (1964), a decision of the Georgia Court of Appeals.

In Mims, the plaintiff alleged that during the course of ongoing and regular treatment, she consented to undergo a barium enema.   She alleged that she believed she would ingest the barium through her mouth, only to learn that the barium would be introduced using a catheter inserted into her colostomy.   She alleged that she revoked her consent when she learned of the method of the procedure.   The Court first noted that it had located no other case in which the question of whether a medical provider could be held liable for battery if the patient's consent was revoked during the course of the procedure for which consent had been given.  Id. at 483.   After balancing the competing policy interests, the court held that under certain circumstances, a medical provider could be held liable for battery if a patient revokes consent during or in the middle of the procedure for which consent had previously been given.

(1) The patient must act or use language which can be subject to no other inference and which must be unquestioned responses from a clear and rational mind.   These actions and utterances of the patient must be such as to leave no room for doubt in the minds of reasonable men that in view of all the circumstances consent was actually withdrawn.  (2) When medical treatments or examinations occurring with the patient's consent are proceeding in a manner requiring bodily contact by the [professional] with the patient and consent to the contact is revoked, it must be medically feasible for the [professional] to desist in the treatment or examination at that point without the cessation being detrimental to the patient's health or life from a medical viewpoint.

Id. at 483–84.   The Court found this two-part inquiry necessary because “[t]o permit a lesser standard would be to subject the medical profession to an endless possibility of harassment and would place upon them a potential of punishment in every case where their examination or treatment results in less than complete success.   The possibility of irresponsible harassment is something the medical profession should not be called upon to bear, dealing as it does with human life and human frailty.”  Id. at 484.

With respect to the first requirement, that the withdrawal or revocation of consent be unequivocal, the Court found the evidence utterly lacking and so affirmed the judgment for the defendant.  “[M]ere protestations by the [patient] of pain and discomfort and disagreement with [the medical professionals] in the manner they administered the [treatment]” does not establish effective revocation.  Id. at 485.   The plaintiff acknowledged that while she complained of pain during the procedure, she never asked the defendant to discontinue the procedure.   See also, Andrew v. Begley, 203 S.W.3d 165, 172–73 (Ky.App., 2006) (Plaintiff's complaints of pain or discomfort during an examination did not rise to the level of effective revocation or withdrawal.)

In Coulter v. Thomas, 33 S.W.3d 522 (Ky.App.2000), Mims was cited with approval and adopted by the Kentucky Supreme Court.   In Coulter, the plaintiff was undergoing a procedure during which she was conscious and alert.   During the procedure, the automatic blood pressure cuff caused intense pain to the patient.   Although the evidence was conflicting, she testified that she demanded it be removed but that it was inflated two more times before it was eventually removed.   The plaintiff alleged that the cuff had caused permanent injury to her arm and she brought an action sounding in both medical malpractice as well as battery.   The trial court refused to instruct the jury on battery.   The Kentucky Supreme Court reversed, adopting the reasoning and criteria set forth in Mims and holding that the question of whether consent was revoked was one for the jury.

The plaintiff here now invites this court to do the same.   As previously noted, this issue has never been presented to our appellate courts.   Nor does it appear to have been decided by any of our trial courts.   However, a review of this issue as decided in other states reveals a general acceptance of the proposition that a patient can bring an action for battery against a medical provider if the patient revokes consent during a procedure under certain circumstances.   See e.g Prince v. Esposito, 278 Ga.App. 310, 313, 628 S.E.2d 601 (2006) (Although a patient may withdraw consent to treatment after the treatment has begun, no action for battery could be proven where the patient failed to offer evidence of actual revocation or withdrawal of consent);  Williams v. Lemon, 194 Ga.App. 249, 252, (1990) (No battery under Mims, where plaintiff consented to examination and although she was uncomfortable with the nature of the examination being conducted, she never directed the defendant to stop or otherwise revoked her consent);  Andrew v. Begley, 203 S.W.3d 165, 172 (Ky.App.2006) (Although patient could bring an action for battery if patient withdrew consent and the provider continued with the procedure, the plaintiff merely cried out in pain during the examination and at no time asked or demanded that the examination be halted);  Taylor v. University Medical Center, Inc., 2005 U.S. Dist. LEXIS 7269 (W.D.Ky.2005) (Where plaintiff offered no evidence of effort to withdraw or revoke consent, and was clearly not of a rational mind in any event, the claim for battery against medical staff failed);  Hartman v. LeCorps, 1989 Tenn.App. LEXIS 652 (1989) (Where patient never expressly revoked consent for treatment of his knee, despite complaining of discomfort during one of the treatments, the court held he had no claim for battery as “the withdrawal of consent must be unequivocal, made while the patient is rational, and it must be medically feasible to desist without danger to the patient's health”);  Hester v. Brown, 512 F.Sup.2d 1228, 1232–33 (M.D.Ala.2007) (applying Alabama law, and noting “as a general principle of tort law, consent is not binding and can be revoked at any time,” the court held that plaintiff's battery claim against the defendant, an EMT, “turns on whether she had consented to the insertion of the I.V. line and if she did, whether she effectively revoked that consent when she screamed for the defendant to stop);  Yoder v. Cotton, 276 Neb. 954 (2008) (Relying on Andrew v. Begley, supra., the Court held that where plaintiff had complained of discomfort during an Independent Medical Examination but had made no request that the examination cease, the plaintiff could not establish “unequivocal” withdrawal or revocation of consent for purposes of a battery claim);  Pugsley v. Privette, 220 Va. 892, 899–900 (1980) (Jury verdict in favor of plaintiff on battery claim against defendant surgeon was affirmed where jury could have concluded that while patient had consented to surgery, she effectively and unequivocally revoked the consent when she told the defendant that she did not want to be put to sleep or undergo the surgery without the presence of a second surgeon);  Devitre v. Orthopedic Center of St. Louis, LLC, 349 S.W.3d 327, 334 (Mo. banc 2011) (Relying upon Andrew v. Begley, supra, and Yoder v. Cotton, supra, the court found that the plaintiff had implicitly consented to the IME by the defendant and although the plaintiff complained of discomfort or pain during the examination, the plaintiff did not ask that the examination be stopped and so no effective revocation for purposes of a battery claim).²

The Court of Appeals of Tennessee, in Hartman v. LeCorps, supra, discussed the policy considerations behind the requirement of an unequivocal and unambiguous withdrawal or revocation:

As is pointed out by the defendant, there are strong policy considerations to support the rule set forth in Mims. Once a patient has given his consent to be treated for a medical condition, the doctor must be able to assume that he has given that consent in regard to follow-up treatment.   If the patient is not required to clearly express a revocation of that consent, the doctor is placed in an impossible position.   If the doctor does not treat the condition, he will be sued for malpractice.   If he does treat the condition and the patient subjectively and silently changes his mind, the doctor will be sued for lack of informed consent [or battery].

Id., at *8–9.   Although decided in the context of Wisconsin's informed consent statutes, the Wisconsin Supreme Court has also observed, “We reject the notion that the onset of a procedure categorically forecloses a patient's withdrawal of consent.   To be sure, at some point in virtually every medical procedure a patient reaches a point from which there is no return.   However, that point need not be arbitrarily created at the commencement of treatment.   Rather it varies with the nature and circumstances of the individual procedure and continues so long as there exist alternative viable modes of medical treatment.”  Schreiber v. Physicians Ins. Co. of Wis., 223 Wis.2d 417, 430, reconsideration denied, 225 Wis.2d 493, cert. denied, 528 U.S. 869 (1999).

These observations are persuasive.   This court believes that a two-prong inquiry, as included in Mims and the other cases cited above, should be accepted as the law of the State of Connecticut.   It is already the law that contact by a physician without a patient's consent is battery.   See, Logan v. Greenwich Hospital Association, 191 Conn. 282 (1983).   Where the allegation is that the contact was “without consent” because that consent was withdrawn during the course of the procedure for which consent had been given, a plaintiff may prevail if he establishes (1) that the expression of withdrawal or revocation is clear, unequivocal and subject to but one reasonable interpretation and is made while the patient is rational;  and (2) it must be feasible for the medical provider to cease the treatment or examination at that point without such cessation being detrimental to the patient's health or life.³

Examination of the plaintiff's complaint reveals that although there are some allegations from which revocation of consent might be reasonably inferred, it is nowhere alleged that cessation of the treatment was feasible and could be accomplished without detriment to the plaintiff's health.   The motion to strike is GRANTED.

Dooley, J.

FOOTNOTES

FN1. The complaint includes additional allegations of negligence which are not germane to the issue presented in the motion to strike and so are not included here..  FN1. The complaint includes additional allegations of negligence which are not germane to the issue presented in the motion to strike and so are not included here.

FN2. The only case located in which a battery claim under these circumstances was rejected comes from South Carolina.  Linog v. Yampolsky, 376 S.C. 182, 187–88 (2008).   However, the court noted therein that “no cause of action exists for medical battery in South Carolina.”   Thus, in order for the plaintiff there to pursue claims, the plaintiff was required to “bring this claim under the [South Carolina] medical malpractice framework.”  Id..  FN2. The only case located in which a battery claim under these circumstances was rejected comes from South Carolina.  Linog v. Yampolsky, 376 S.C. 182, 187–88 (2008).   However, the court noted therein that “no cause of action exists for medical battery in South Carolina.”   Thus, in order for the plaintiff there to pursue claims, the plaintiff was required to “bring this claim under the [South Carolina] medical malpractice framework.”  Id.

FN3. The second prong might, under some, but not all circumstances, require expert testimony.   This does not, in this court's view, convert a claim of battery into one of medical malpractice, as urged by the defendant.   Cf King v. Dodge County Hospital Authority, 274 Ga.App. 44, 46 (2005).   In King, the Georgia Court of Appeals, the same Court that authored and continues to recognize Mims, held that a plaintiff's battery claim was in essence a medical malpractice claim in light of the need for expert testimony as to the second “medical feasibility” prong.   In this court's view, the reasoning in this decision is circular and unpersuasive.   Whether the cessation of treatment was medically feasible or could be accomplished without detriment to the patient's health may well require an expert's opinion.   These issues however have little to do with the standard of care applicable to the procedure being performed.   The question is not whether it was performed to standard, but whether it could have been halted without detriment.   As indicated, the second prong may well be provable without the assistance of expert testimony.   See, Coulter v. Thomas, supra, (“There is no question the plaintiff could easily prove the second prong, as the cuff was actually removed during the surgery without any sort of complication”)..  FN3. The second prong might, under some, but not all circumstances, require expert testimony.   This does not, in this court's view, convert a claim of battery into one of medical malpractice, as urged by the defendant.   Cf King v. Dodge County Hospital Authority, 274 Ga.App. 44, 46 (2005).   In King, the Georgia Court of Appeals, the same Court that authored and continues to recognize Mims, held that a plaintiff's battery claim was in essence a medical malpractice claim in light of the need for expert testimony as to the second “medical feasibility” prong.   In this court's view, the reasoning in this decision is circular and unpersuasive.   Whether the cessation of treatment was medically feasible or could be accomplished without detriment to the patient's health may well require an expert's opinion.   These issues however have little to do with the standard of care applicable to the procedure being performed.   The question is not whether it was performed to standard, but whether it could have been halted without detriment.   As indicated, the second prong may well be provable without the assistance of expert testimony.   See, Coulter v. Thomas, supra, (“There is no question the plaintiff could easily prove the second prong, as the cuff was actually removed during the surgery without any sort of complication”).

Dooley, Kari A., J.