Deborah Tischio v. DMD (2014)

MEMORANDUM OF DECISION ON MOTION TO DISMISS

The defendants, Nancy J. Simonow, DMD, and Chatham Dental Care, LLC, have moved to dismiss on the ground that the plaintiff has failed to comply with the requirements of Connecticut General Statutes § 52–190a.

Allegations of the Complaint

On October 25, 2013, the plaintiff, Deborah Tischio, filed a one-count complaint against the defendants, Nancy J. Simonow and Chatham Dental Care, LLC. The complaint alleges, inter alia, that Simonow is a general dentist who practices dentistry at Chatham Dental Care, LLC. The plaintiff was a patient of the defendants.   Simonow, individually and by and through Chatham Dental, LLC, performed dental procedures on the plaintiff and recommended that the plaintiff undergo a root canal procedure.   On or about October 25, 2011, Simonow commenced the root canal procedure, which took numerous hours and took place over the course of multiple days.   The goal of the root canal treatment was to save a tooth that might otherwise require extraction.   During the course of the root canal procedure, the plaintiff complained to Simonow of loss of sensation or feeling on the side of the face and ear tingling.   At no time did the defendants communicate treatment options to the plaintiff.   There existed treatment options including no treatment at all;  wait for a more definitive development of symptoms;  extraction and then followed with either nothing else, a denture, a bridge or an implant;  and a root canal performed by an endodontist.¹  Moreover, the defendants failed to communicate to the plaintiff that as a general dentist, she did not possess the same level of skill, training, and experience of an endodontist.

The plaintiff alleges that the defendants failed to obtain the plaintiff's informed consent prior to the performance of the root canal by failing to disclose the known material risks associated with the procedure, such as a change in the bite or jaw joint difficulty.   Moreover, the defendants failed to inform the plaintiff of feasible alternatives prior to performing the root canal procedure.   The disclosure of the material risks and/or feasible alternatives of the proposed dental procedure would have resulted in a decision by a reasonably prudent person in the plaintiff's position to not submit to the procedure.   As a result of the defendants' failure to obtain the plaintiff's informed consent, the plaintiff suffered and sustained injuries, including bite difficulty, jaw joint difficulty, bilateral TMJ,² physical pain and suffering, and mental anguish.

Discussion of the Law and Ruling

“[A] motion to dismiss ․ properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court.”  (Internal quotation marks omitted.)  Santorso v. Bristol Hospital, 308 Conn. 338, 350, 63 A.3d 940 (2013).  “A motion to dismiss tests, inter alia, whether, on the face of the record, the court is without jurisdiction.”  (Internal quotation marks omitted.)  Dayner v. Archdiocese of Hartford, 301 Conn. 759, 774, 23 A.3d 1192 (2011).  “The grounds which may be asserted in [a motion to dismiss] are:  (1) lack of jurisdiction over the subject matter;  (2) lack of jurisdiction over the person;  (3) improper venue;  (4) insufficiency of process;  and (5) insufficiency of service of process.”  Zizka v. Water Pollution Control Authority, 195 Conn. 682, 687, 490 A.2d 509 (1985), citing Practice Book § 143, which is now § 10–31.  “[T]he failure to attach a proper written opinion letter pursuant to [General Statutes] § 52–190a constitutes insufficient service of process and ․ implicates personal jurisdiction.”   (Footnote omitted.)  Morgan v. Hartford Hospital, 301 Conn. 388, 402, 21 A.3d 451 (2011).

“When a trial court decides a jurisdictional question raised by a pretrial motion to dismiss on the basis of the complaint alone, 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, construing them in a manner most favorable to the pleader.”  (Internal quotation marks omitted.)   Conboy v. State, 292 Conn. 642, 651, 974 A.2d 669 (2009).

In support of the motion to dismiss, the defendants argue that the factual allegations underlying the plaintiff's complaint sound in medical negligence, and that the plaintiff was therefore required to comply with § 52–190a.   More specifically, the plaintiff was required to provide an opinion letter from a similar health care provider as well as a certificate of good faith inquiry.

Section 52–190a(a) provides in relevant part:  “No civil action ․ shall be filed to recover damages resulting from personal injury ․ in which it is alleged that such injury ․ resulted from the negligence of a health care provider, unless the attorney or party filing the action ․ 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 ․ shall contain a certificate of the attorney or party filing the action ․ that such reasonable inquiry gave rise to a good faith belief that grounds exist for an action against each named defendant ․ To show the existence of such good faith, the claimant or the claimant's attorney ․ shall obtain a written and signed opinion of a similar health care provider ․ that there appears to be evidence of medical negligence ․ The claimant or the claimant's attorney ․ shall retain the original written opinion and shall attach a copy of such written opinion ․ to such certificate.”  “[Section] 52–190a does not apply to a claim of lack of informed consent because, pursuant to the [Supreme Court's] construction of the phrase “medical negligence” in the statute, as set forth in Dias v. Grady, 292 Conn. 350, 359, 972 A.2d 215 (2009), a claim of lack of informed consent is not a medical negligence claim.”  Shortell v. Cavanagh, 300 Conn. 383, 385, 15 A.3d 1042 (2011).

The court must look to the allegations made in the complaint to make a determination as to which cause of action is at issue in this case:  medical malpractice or lack of informed consent.  “[T]he interpretation of pleadings is always a question of law for the court ․ Whenever [the] language [of the pleadings] fails to define clearly the issues in dispute, the court will put upon it such reasonable construction as will give effect to the pleadings in conformity with the general theory which it was intended to follow, and do substantial justice between the parties.”  (Internal quotation marks omitted.)  Sweeney v. Friends of Hammonasset, 140 Conn.App. 40, 46, 58 A.3d 293 (2013).  “[I]n determining whether the facts would support a cause of action, the facts, and not the label, or title, affixed to them by the parties, are dispositive.”   Bellacicco v. CVS Pharmacy, Superior Court, judicial district of New Haven, Docket No. CV–11–618543–S (October 5, 2011, Burke, J.).

“In order to prevail on a cause of action for lack of informed consent, a plaintiff must prove both that there was a failure to disclose a known material risk of a proposed procedure and that such failure was a proximate cause of his injury.   Unlike a medical malpractice claim, a claim for lack of informed consent is determined by a lay standard of materiality, rather than an expert medical standard of care which guides the trier of fact in its determination ․ Under this lay standard, material information that must be disclosed refers to that information which a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy.”  (Citations omitted;  internal quotation marks omitted.)   Downs v. Trias, 306 Conn. 81, 88, 49 A.3d 180 (2012).  “The informed consent doctrine derives from 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.)  Sherwood v. Danbury Hospital, 278 Conn. 163, 180, 896 A.2d 777 (2006).  “[A]n informed consent case requires that the patient be advised regarding (1) the nature of the procedure;  (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.)  Downs v. Trias, supra, 306 Conn. 105.  “[L]ack of informed consent provides the sole theory of liability only in a single circumstance, namely, where the plaintiff has failed to allege any deficiency of medical skill or care.”  (Emphasis omitted.)  Id., 91.

By contrast, “the focus of a medical malpractice case is often a dispute involving the correct medical standard of care and whether there has been a deviation there-from.   Conversely, the focus in an action for lack of informed consent is often a credibility issue between the physician and the patient regarding whether the patient had been, or should have been, apprised of certain risks prior to the medical procedure.”  Shortell v. Cavanagh, supra, 300 Conn. 389.  Trimel v. Lawrence & Memorial Hospital Rehabilitation Center, 61 Conn.App. 353, 764 A.2d 203 (2001), sets forth a three-part test for determining whether a claim sounds in medical negligence.  “[W]hether (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.”  Id., 358.

The Supreme Court case, Shortell v. Cavanagh, supra, 300 Conn. 383, is factually similar to the present case.   In Shortell, the plaintiff claimed that he sustained injuries as a result of the failure of the defendant, a dentist, to obtain his informed consent prior to a dental procedure.   In his complaint, the plaintiff alleged that the “dentist performed a dental implant procedure on the plaintiff and administered anesthesia to the plaintiff.   The defendant failed to obtain the plaintiff's informed consent prior to the performance of the implant procedure by failing to disclose the significant risks associated with the procedure.   The plaintiff thereafter sustained injuries, including nerve damage, physical pain and suffering, right jaw numbness and mental anguish.”  Id., 385.  “The defendant filed a motion to dismiss because of the plaintiff's failure to attach a written opinion letter from a similar health care provider as mandated by [§ 52–190a].”  (Internal quotation marks omitted.)  Id., 386.   The plaintiff objected and the trial court granted the motion to dismiss.   The Supreme Court reversed and held that the trial court improperly dismissed the plaintiff's action because a claim of lack of informed consent is not a medical malpractice claim and the requirement of § 52–190a is not applicable.   See Id., 393.

In Sherwood v. Danbury Hospital, supra, 278 Conn. 163, “the plaintiff had contracted HIV after receiving a blood transfusion during a medical procedure at the defendant hospital, the court held that the plaintiff's claim of negligence sounded exclusively in informed consent because the claim was not founded on the defendant's alleged lack of skill or proficiency in its screening, handling and dispensing of the blood in its blood bank but, rather ․ [was] predicated entirely on the defendant's alleged failure to convey information to the plaintiff so that she could make an informed decision with respect to whether to proceed with the surgery as scheduled.”  (Internal quotation marks omitted.)  Downs v. Trias, supra, 306 Conn. 91.

Conversely, in Downs v. Trias, supra, 306 Conn. 86, the “plaintiff alleged that the defendant negligently had:  failed to provide proper gynecological care;  failed to properly treat her;  failed to strongly advise her to have her ovaries removed during the hysterectomy;  failed to remove her ovaries;  and failed to instruct her that her family history of cancer greatly increased her risk of developing ovarian cancer.”   The Supreme Court held that the court properly instructed the jury on a theory of medical negligence because “it seem [ed] clear that in light of the entire complaint, the plaintiff's allegations concerning the defendant's failure to provide information and recommendations concerning ovarian cancer could properly be construed as describing specific instances of a broader theory that the defendant had failed to provide proper medical treatment.”  Id., 92.   The plaintiff alleged in her complaint “not only that the defendant had failed to inform her of her risk of ovarian cancer, but also that he failed more generally to properly treat her and to provide her with proper gynecological care.”  Id.

In the present case, the plaintiff's claim of negligence is the defendants' alleged failure to disclose the known material risks associated with the root canal procedure, in particular, of a change in bite or jaw joint difficulty.   Moreover, that the defendants did not communicate other treatment options to the plaintiff, such as no treatment at all;  waiting for more definitive development of symptoms;  extraction followed with either nothing else, a denture, abridge, or an implant;  or a root canal performed by an endodontist.   Although the defendants characterize the plaintiff's complaint as sounding in medical negligence because the plaintiff alleges that the defendants failed to communicate to the plaintiff that Simonow did not possess the same level of skill, training, and experience of an endodontist, this allegation is not founded on Simonow's lack of skill or proficiency, but rather on the defendants' failure to communicate a feasible alternative to the plaintiff.   Unlike Downs, nowhere in the complaint does the plaintiff allege that Simonow was deficient of medical skill or care.   Because the plaintiff's claim is based on the defendants' alleged failure to communicate information to the plaintiff so that she could make an informed decision with respect to the root canal procedure, similar to the holdings in Shortell and Sherwood, the plaintiff's claim sounds in informed consent and the plaintiff was, therefore, not required to provide an opinion letter from a similar health care provider as well as a certificate of good faith inquiry.

The defendants rely on Duffy v. Flagg, 279 Conn. 682, 905 A.2d 15 (2006).   In Duffy, the plaintiff argued that the doctor's “prior experience with vaginal birth after cesarean section became relevant to informed consent because the plaintiff asked about [the doctor's] experience ․” Id., 693.   The Supreme Court held that the plaintiff's claim “runs afoul with our adoption and consistent application of an objective standard of disclosure.  [Courts] do not require a physician to disclose information that a particular patient might deem material to his or her decision, but, rather, limit the information to be disclosed to that which a reasonable patient would find material.   Second, the information ․ did not relate to any of the four factors encompassed by informed consent as [courts] have defined it.”(Emphasis omitted.)  Id. The present case is distinguishable because the plaintiff does not allege any facts in her complaint pertaining to a lack of Simonow's experience or qualifications, but rather that the defendants failed to communicate to the plaintiff feasible alternatives to the procedure, including a root canal performed by an endodontist, which relates to factor three of the four factors encompassed by a claim of lack of informed consent.

For the foregoing reasons, it is the motion to dismiss is denied.

By the court,

Aurigemma, J.

FOOTNOTES

FN1. An endodontist is a dentist that specializes in root canals..  FN1. An endodontist is a dentist that specializes in root canals.

FN2. TMJ is the acronym for temporomandibular joint disorder..  FN2. TMJ is the acronym for temporomandibular joint disorder.

Aurigemma, Julia L., J.