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ERIKA TORRES v. ALEXANDER

A. CARRESE ET AL.

(AC 34350)

Beach, Bear and Peters, Js.

Argued October 18, 2013—officially released April 22, 2014

(Appeal from Superior Court, judicial district of

Fairfield, Jones, J. [motions to dismiss]; Levin, J.

[motions to dismiss; summary judgment motions,

judgment].)

Jonathan Perkins, with whom were Wendi Kowarik

and, on the brief, Karen L. Dowd and Brendon P. Levesque, for the appellant-cross appellee (plaintiff).

James F. Biondo, with whom, on the brief, was

Audrey D. Medd, for the appellee-cross appellant

(named defendant).

David J. Robertson, with whom, on the brief, were

Madonna A. Sacco and Jeremy P. Chen, for the appellee-cross appellant (defendant Abraham J. Yaari).
Opinion

BEACH, J. This appeal arises from a medical malpractice action brought by the plaintiff, Erika Torres, against

the defendants, Alexander A. Carrese and Abraham J.

Yaari, board certified obstetrician-gynecologists. The

plaintiff claims: (1) the trial court erred in dismissing

her professional negligence claims against both defendants on the ground that the written opinion letter that

she attached to her complaint did not satisfy the requirements of General Statutes § 52-190a; and (2) the trial

court erred in granting the defendants’ motions for summary judgment as to her claims against both defendants

alleging lack of informed consent. We affirm the judgment of the trial court.

The following facts, which were undisputed for the

purpose of summary judgment, and procedural history

are relevant to our disposition of the plaintiff’s claims.

Carrese was the plaintiff’s obstetrician-gynecologist

from the time the plaintiff was sixteen years old.Carrese

successfully performed two cesarean sections on the

plaintiff for her two prior pregnancies. In 2004, the

plaintiff became pregnant with her third child. The

plaintiff was scheduled to deliver her third child in

September, 2004. During her 2004 pregnancy, Carrese

and the plaintiff understood that her third child would

be delivered by cesarean section. In the fourth or fifth

month of her pregnancy, the plaintiff began to experience pain, bleeding, and cramping. Carrese diagnosed

the plaintiff to have the condition of placenta previa.1

Carrese described the condition as ‘‘placenta before

baby’’ and explained to the plaintiff that the placenta

was blocking the path out of the womb.

On May 28, 2004, the plaintiff presented at Bridgeport

Hospital with signs of vaginal bleeding and was seen

by Yaari for the first time. While the plaintiff was

dressed and sitting in bed, she informed a nurse that

she wanted to leave. The plaintiff signed herself out of

the hospital against medical advice.

In August, 2004, prior to leaving Connecticut for a

vacation, Carrese arranged for Yaari to cover his

patients. On August 5, 2004, while Carrese was on vacation,the plaintiff wentinto labor. The plaintiff presented

at St. Vincent’s Medical Center in Bridgeport, thirtyfive weeks pregnant with vaginal bleeding and uterine

contractions. The plaintiff was seen by Yaari. Sometime

after the plaintiff was admitted, Yaari diagnosed the

plaintiff to have the condition of placenta previa. Yaari

delivered the plaintiff’s third child by cesarean section.

As the court related, ‘‘After performing the cesarean

section, Yaari discovered that the plaintiff in fact had

placenta percreta and that the placenta had invaded

the wall of the bladder causing substantial bleeding,

[and] requiring a hysterectomy. The contemporaneous

hospital record signed by Yaari further state[d] that
the plaintiff ‘was taken to the operating room and a

cesarean section was performed. A live baby girl was

delivered. . . . Because of the severe bleeding that we

could not prevent even though the incision on the uterus

was in the fundal area, we had to pursue a . . . hysterectomy. Because of the location of the placenta at the

lower level of the uterus, it penetrated the posterior

wall of the bladder and thus was removed with the

uterus and we called for intraoperative urology evaluation. The urology team arrived . . . and the patient had

later on a reconstruction of the bladder’ . . . .’’

In September, 2006, the plaintiff served this medical

malpractice action on the defendants, Carrese and

Yaari.2 The complaint alleged that each defendant was

‘‘a duly licensed physician engaged in the practice of

medicine in the State of Connecticut and a specialist

in the field of obstetrics and/or gynecology.’’3 The complaint alleged that the defendants were negligent in

their obstetric care of the plaintiff. Specifically, count

one alleged that Carrese, who had been the plaintiff’s

obstetrician since she was sixteen and had provided her

with prenatal care for several months prior to August 5,

2004, was negligent in providing prenatal care to the

plaintiff because he (1) ‘‘failed to maintain adequate

medical records pertaining to the plaintiff’s condition

of placenta previa,’’ (2) failed to detect the plaintiff’s

condition of placenta previa and/or placenta accreta,

(3) ‘‘failed to convey to other treating doctors the fact

that the plaintiff suffered from [placenta previa and/or

placenta accreta],’’ (4) ‘‘failed to undertake necessary

diagnostic testing such as ultrasounds,’’ (5) ‘‘failed to

advise the plaintiff of the risk that her bladder would

be injured during the cesarean section and/or related

procedures,’’ and (6) failed to recognize that the plaintiff’s condition required the intervention of a urologist

and, in failing-refusing to procure the services of a urologist during the prenatal period, undertook to provide

medical services which were within the specialty of a

urologist. The plaintiff claimed that as a result of Carrese’s negligent conduct she sustained damage to her

bladder and uterus that has rendered her permanently

incontinent, caused her pain and suffering, and prevented her from obtaining gainful employment, and

incurred medical expenses.

Count two alleged that Yaari, the obstetrician who

performed the plaintiff’s cesarean section, was negligent in his obstetric care of the plaintiff because he

(1) ‘‘failed to take the proper precautions during the

plaintiff’s cesarean section and/or related procedures

as to avoid injuring her bladder (including arranging

for the delivery to occur in the appropriate facility and

arranging for a urologist to deal with the potential placenta accreta condition),’’ (2) ‘‘failed to undertake the

appropriate investigations to determine whether the

plaintiff suffered from placenta previa and/or placenta

accreta,’’ (3) ‘‘caused injury to the plaintiff’s bladder,’’
and (4) ‘‘undertook to perform medical services which

were within the specialty of a urologist.’’ Count two

also alleged that Yaari ‘‘failed to advise the plaintiff of

the risk that her bladder would be injured during the

cesarean section and/or related procedures . . . .’’ The

plaintiff claimed that as a result of Yaari’s negligent

conduct, she was ‘‘forced to undergo a hysterectomy

and can no longer bear children,’’ her ‘‘bladder is damaged and she is incontinent,’’ she has ‘‘undergone

anguish, pain and suffering’’ and incurred medical

expenses, she has been unable to obtain gainful employment and to participate in many of life’s activities, and

she will ‘‘in the future undergo further debilitating and

painful treatments and undergo further anguish, pain

and suffering and medical expenses.’’

With her complaint, the plaintiff filed a good faith

certificate signed by her attorney, who represented

therein that he had made a reasonable inquiry into the

circumstances of the plaintiff’s claims and that, on the

basis of that inquiry, he believed in good faith that the

defendants had been negligent in their treatment of the

plaintiff. Additionally, pursuant to § 52-190a (a), the

plaintiff submitted a written opinion letter of a medical

expert, dated September 5, 2006, who had reviewed

the defendants’ care of the plaintiff and rendered his

opinion as to that care as well as to the care of the

plaintiff’s treating urologists.4

Jay Motola, a board certified urologist, concluded that the plaintiff’s urologists

had provided her good care. With respect to the defendants, Motola opined in relevant part: ‘‘On the other

hand, the obstetricians involved in the care of this case

need to be further scrutinized. Clearly the root cause

of the subsequent urinary fistula does not lie with the

urologic care that was provided, but rather the original

injury to the urinary tract that the obstetricians created.

It is my opinion to a reasonable degree of medical

certainty, that the obstetricians, Drs. Carrese and

Yaar[i] breached the standard of care due to the [plaintiff] by causing the original injury to her urinary tract.

It is this injury that has rendered the [plaintiff] in the

state that she is presently in and therefore the liability

lies on the part of the treating obstetricians. . . . It is

also my opinion that . . . Carrese breached the prevailing standard of care by failing to maintain adequate

medical records [while] taking care of [the plaintiff].’’

On November 13, 2006, Yaari filed a motion to dismiss

the plaintiff’s complaint on the ground that the written

opinion letter submitted by the plaintiff was not written

by a ‘‘similar health care provider,’’ as defined by General Statutes § 52-184c and as mandated by § 52-190a,

and therefore, dismissal was proper pursuant to § 52-

190a (c).5 On November 15, 2006, counsel for Carrese

filed a motion to dismiss on similar grounds.6 According

to the court, ‘‘Oral argument was heard on January 2,

2007, at which time the court, Jones, J., granted Yaari’s

motion because it was unopposed . . . [and] Carrese’s
motion was marked off because the plaintiff’s counsel

was absent. On the same day, the plaintiff filed an objection to . . . Yaari’s motion. The plaintiff then, on January 3, 2007, filed a motion to set aside the dismissal as

to . . . Yaari and for reargument, which was granted

by the court, Jones, J., on January 22, 2006. On February

26, 2007 . . . Carrese filed another motion to dismiss

. . . which was in all respects identical to his prior

motion . . . .

‘‘Oral argument was heard a second time on February

26, 2007. . . . The defendants move[d] to dismiss the

[plaintiff’s] first amended complaint on the ground that

the first written opinion [letter] submitted by the plaintiff was not obtained from a ‘similar health care provider’ as mandated by § 52-190a. They argue[d] that the

plain language of § 52-190a (c) indicate[d] that [failure

to attach a sufficient written opinion letter was] ground

for dismissal of the action. They also contend[ed] that

the failure to attach an adequate medical opinion [was]

not a curable defect, and, therefore, the plaintiff’s

amended complaint, attaching the opinion of an [obstetrician-gynecologist was] not properly before the court.

Furthermore, even if the amendment [was] effective,

the defendants argue[d] that the second opinion provided [was] sparse and [was] insufficient to meet the

statutory requirement that the opinion ‘include a

detailed basis forthe formation of such opinion.’ ’’(Citations omitted; footnotes omitted.) On April 4, 2007, the

court, Jones, J., denied the defendants’ motions to dismiss on the ground that an insufficient opinion letter,

as opposed to the absence of an opinion letter, was not

a sufficient ground for dismissal.7

On January 19, 2011, the case was called for trial.

On January 31, 2011, and February 10, 2011, after our

Supreme Court released its opinion in Bennett v. New

Milford Hospital, Inc., 300 Conn. 1, 21, 12 A.3d 865

(2011) (holding in cases against specialists, author of

written opinion letter pursuant to § 52-190a [a] must be

‘‘similar health care provider’’ as defined in § 52-184c

[c], regardless of author’s potential qualifications to

testify at trial, and insufficient written opinion letter,

while not impairing subject matterjurisdiction,requires

dismissal of action under § 52-190a [c]), the defendants

each filed new motions to dismiss the plaintiff’s complaint.8 On March 7, 2011, the court granted the defendants’ motions to dismiss the plaintiff’s complaint

because the plaintiff failed to attach an opinion letter

from a similar health care provider to the complaint as

required by § 52-190a.9 The court subsequently reconsidered and vacated its decision only as to the plaintiff’s

purported claims of lack of informed consent, combined within allegations of negligence, reasoning that

the requirements of a good faith certificate and a written

opinion letter from a similar health care provider do

not apply to a claim of lack of informed consent.
On July 28, 2011, Carrese moved for summary judgment as to the plaintiff’s claims of lack of informed

consent on the ground that the plaintiff did not plead

lack of informed consent, and, alternatively, to the

extent that a lack of informed consent claim was

pleaded, no triable issue existed. On August 1, 2011,

Yaari also moved for summary judgment. The plaintiff

filed separate objections to the defendants’ motions on

September 23, 2011. On December 30, 2011, the court

granted the defendants’ motions for summary judgment

as to the plaintiff’s alleged claims of lack of informed

consent, and, on January 3, 2012, issued a supporting

memorandum of decision.10 This appeal and the defendants’ cross appeal followed. See footnote 22 of this

opinion. Additional facts will be set forth as necessary.

I

On appeal, the plaintiff first claims that the court

improperly dismissed her professional negligence

claims because the written opinion letter, authored by

a urologist, not an obstetrician-gynecologist, was sufficient to meet the requirements of §§ 52-190a (a) and

52-184c. The plaintiff argues alternatively that even if

the original opinion letter was insufficient, § 52-190a

does not implicate subject matter jurisdiction, and

therefore, because the defendants’ motions to dismiss

were filed outside the time period set forth by Practice

Book (2006) § 10-30, the court erred in considering and

granting their motions to dismiss.11 We address these

arguments separately.

A

The plaintiff first claims that the court improperly

dismissed her professional negligence claims because

the opinion letter, authored by a urologist rather than

an obstetrician-gynecologist, was sufficient to meet the

requirements of §§ 52-190a (a) and 52-184c. The defendants argue that because they are board certified obstetrician-gynecologists only another board certified

obstetrician-gynecologist qualifies as a ‘‘similar health

care provider’’ as defined by §§ 52-190a and 52-184c and

Bennett v. New Milford Hospital, Inc., supra, 300 Conn.

1. We agree with the defendants.

Our review of a trial court’s ruling on a motion to

dismiss pursuant to § 52-190a is plenary. See Morgan

v. Hartford Hospital, 301 Conn. 388, 395, 21 A.3d 451

(2011) (‘‘[t]he interpretation of § 52-190a is a question

of law over which this court exercises plenary review’’).

We begin our analysis by setting forth the relevant

statutory provisions. Section 52-190a (a) provides that

before filing a personal injury action against a health

care provider, the attorney or party filing the action

must make ‘‘a reasonable inquiry as permitted by the

circumstances to determine that there are grounds for

a good faith belief that there has been negligence in

the care or treatment of the claimant. . . .’’12 To show
a good faith belief, the complaint must be accompanied

by a written and signed opinion of a ‘‘similar health

care provider,’’ as defined in § 52-184c, stating that there

appears to be evidence of medical negligence and

including a detailed basis for the formation of that opinion. General Statutes § 52-190a. To determine if an opinion letter meets the requirements of § 52-190a (a), the

letter must be read in conjunction with § 52-184c (c),

which defines the term ‘‘similar health care provider.’’

Wilkins v. Connecticut Childbirth & Women’s Center,

135 Conn. App. 679, 686, 42 A.3d 521, cert. granted on

other grounds, 305 Conn. 921, 47 A.3d 881 (2012). For

health care providers who are board certified or who

hold themselves out as specialists, such as the obstetrician-gynecologists who treated the plaintiff in this case,

§ 52-184c (c) defines ‘‘similar health care provider’’ as

one who: (1) ‘‘[i]s trained and experienced in the same

specialty’’; and (2)‘‘is certified by the appropriate American board in the same specialty . . . .’’13

The plaintiff argues that the opinion letter, authored

by a urologist, is sufficient to meet the requirements

of § 52-190a because this case falls within the statutory

exception to the requirement that only board certified

cognates of the defendant physician may author the

written opinion required by § 52-190a. In defining ‘‘similar health care provider,’’ § 52-184c (c) provides that

where ‘‘the defendant health care provider is providing

treatment or diagnosis for a condition which is not

within his specialty, a specialist trained in the treatment

or diagnosis for that condition shall be considered a

‘similar health care provider’.’’ The plaintiff further

argues that this case falls within the statutory exception

because her complaint alleged that ‘‘the defendants had

left the area of obstetrics and were diagnosing and

treating the plaintiff’s urological system, something outside their specialty.’’

This argument fails for two reasons. First, in the

written opinion letter dated September 5, 2006, Motola,

the board certified urologist, never suggested that the

defendants were diagnosing or treating the plaintiff for

a condition not within their specialty. Second, the plaintiff’s bladder and ureter were damaged when Yaari was

performing a hysterectomy, an obstetric-gynecological

procedure, because of the plaintiff’s condition of placenta percreta, an obstetric condition. Because this

case does not fall within the statutory exception, the

original written opinion letter submitted by the plaintiff

must satisfy the requirements of §§ 52-190a and 52-184c

(c) in order to be effective.

In this regard, the plaintiff’s claim is governed by

Bennett v. New Milford Hospital, Inc., supra, 300 Conn.

1. In Bennett, our Supreme Court concluded that ‘‘in

cases of specialists, the author of an opinion letter pursuant to § 52-190a (a) must be a similar health care

provider as that term is defined by § 52-184c (c), regard-
less of his or her potential qualifications to testify at

trial pursuant to § 52-184c (d).’’ Id., 21. Put another way,

‘‘one’s familiarity with or knowledge of the relevant

standard of care, for purposes of authoring a prelitigation opinion letter, is not a proper consideration in

determining the adequacy of that letter if the author

does not meet the statutory definition of a ‘similar

health care provider.’ ’’ Wilkins v. Connecticut Childbirth & Women’s Center, supra, 135 Conn. App. 687. In

Bennett, the court held that, because the plaintiff

alleged in his complaint that the defendant was a specialist in emergency medicine, the court was correct in

concluding that the opinion letter authored by a general

surgeon, with added qualifications in surgical critical

care, who engaged in the practice of trauma surgery,

was not authored by a similar health care provider as

defined by § 52-184c (c) and therefore did not satisfy

§ 52-190a. Bennett v. New Milford Hospital, Inc., supra,

24. Therefore, pursuant to Bennett, the language of

§§ 52-190a (a) and 52-184c (c) dictates that a ‘‘similar

health care provider’’ with respect to the plaintiff’s

health care providers in this case is one who is trained

and experienced in obstetrics-gynecology and is board

certified in obstetrics-gynecology. Because the author

of the opinion letter submitted by the plaintiff is neither,

the letter does not comply with § 52-190a (a), and

accordingly, the court properly dismissed the plaintiff’s

professional negligence claims.14 See Bennett v. New

Milford Hospital, Inc., supra, 28 (‘‘dismissal is the mandatory remedy when a plaintiff fails to file an opinion

letter that complies with § 52-190a [a]’’); see also Morgan v. Hartford Hospital, supra, 301 Conn. 398 (‘‘the

legislature envisioned the dismissal as being without

prejudice . . . and even if the statute of limitations has

run, relief may well be available under the accidental

failure of suit statute’’ [internal quotation marks

omitted]).

B

The plaintiff also claims that, even if the original

opinion letter was insufficient, § 52-190a does not implicate subject matter jurisdiction, and therefore, because

the defendants’ motions to dismiss were filed outside

the time period set forth by Practice Book (2006) § 10-

30,15 the court erred in considering, and granting, the

motions to dismiss. The defendants argue that the court

properly determined that their 2011 motions to dismiss

were functionally motions to reargue their timely filed

2006 motions to dismiss the plaintiff’s complaint. In

the unusual circumstances of this case, we agree with

the defendants.

The following additional facts are relevant. At the

hearing on the defendants’ 2011 motions to dismiss,16

the plaintiff argued that the defendants’ motions to dismiss were, in essence, motions to reargue their 2006

motions to dismiss17 that did not comply with the man-
datory time requirements set forth in Practice Book

§ 11-12. The plaintiff further argued that no statute or

rule of practice authorized filing a motion to dismiss,

not claiming lack of subject matter jurisdiction, five

and one-half years after filing an appearance.18 In its

memorandum of decision, the court agreed with the

plaintiff that the 2011 motions to dismiss were really

motions to reargue the 2006 motions to dismiss.19 The

court also agreed that the defendants’ motions were

untimely because § 11-12 mandates that motions to

reargue be filed within twenty days of the decision.

The court concluded, however, that it properly could

entertain the defendants’ 2011 motions to dismiss

because the defendants’ failure to meet the timeliness

requirements did not deprive the court of jurisdiction,

and it otherwise was within the court’s discretion to

entertain the motions.

1

We first consider whether the trial court properly

concluded that the defendants’ 2011 motions to dismiss

were functionally motions to reargue their 2006 motions

to dismiss. ‘‘[T]he interpretation of pleadings is always

a question of law for the court and . . . our interpretation of the pleadings therefore is plenary.’’ (Internal

quotation marks omitted.) Dimmock v. Lawrence &

Memorial Hospital, Inc., 286 Conn. 789, 799–800, 945

A.2d 955 (2008); see also Sherman v. Ronco, 294 Conn.

548, 554 n.10, 985 A.2d 1042 (2010). ‘‘[P]leadings must

be construed broadly and realistically, rather than narrowly and technically.’’ (Internal quotation marks omitted.) Connecticut Coalition for Justice in Education

Funding, Inc. v. Rell, 295 Conn. 240, 253, 990 A.2d

206 (2010). Courts analyze pleadings for what they are,

rather than for what their titles state they are. See, e.g.,

State v. Smith, 19 Conn. App. 646, 648, 563 A.2d 1034

(‘‘[a party] cannot change the nature of his motion by

changing its title any more than one can make a bull a

cow by giving it a female name’’), cert. denied, 213

Conn. 806, 567 A.2d 836 (1989).

In this case, the defendants’ original 2006 motions to

dismiss sought to dismiss the plaintiff’s complaint on

the ground that the plaintiff’s failure to attach a written

opinion letter from a similar health care provider, as

mandated by § 52-190a, deprived the court of jurisdiction. The defendants’ 2011 motions to dismiss sought

to dismiss the plaintiff’s complaint on the ground that

the plaintiff’s failure to attach a written opinion letter

from a similar health care provider required dismissal

of the action pursuant to § 52-190a (c) and Bennett v.

New Milford Hospital, Inc., supra, 300 Conn. 1. The

defendants’ 2011 motions to dismiss essentially sought

to reverse or to modify the denials of their earlier 2006

motions to dismiss20 by Judge Jones. We conclude that

the court was correct in concluding that the defendants’

2011 motions to dismiss, despite their titles, were in
reality motions to reargue their 2006 motions to dismiss.

2

The plaintiff contends that the twenty day filing deadline in Practice Book § 11-12 (a) is a mandatory limitation, and therefore, because the defendants’ 2011

motions were untimely, Judge Levin improperly considered the motions.21 The defendants argue that Judge

Levin properly considered their 2011 motions to dismiss.22 We agree with the defendants.

We review the plaintiff’s claim under the abuse of

discretion standard; see, e.g., Chartouni v. DeJesus,

107 Conn. App. 127, 127, 129, 944 A.2d 393 (we review

denial of motion to reargue for abuse of discretion),

cert. denied, 288 Conn. 902, 952 A.2d 809 (2008); and

conclude that the court did not abuse its discretion in

considering the defendants’ untimely 2011 functional

motions to reargue.

Practice Book § 11-12 (a) provides: ‘‘A party who

wishes to reargue a decision or order rendered by the

court shall, within twenty days from the issuance of

notice of the rendition of the decision or order, file a

motion to reargue setting forth the decision or order

which is the subject of the motion, the name of the

judge who rendered it, and the specific grounds for

reargument upon which the party relies.’’ (Emphasis

added.) ‘‘We construe words used in the Practice Book

according to their commonly approved meaning.’’ Lo

Sacco v. Young, 210 Conn. 503, 507, 555 A.2d 986 (1989).

The word ‘‘shall’’typically implies a mandatory connotation. ‘‘Our Supreme Court previously has recognized

the significance of the [drafter’s] choice in electing to

choose shall or may in formulating a . . . directive.

. . . Absent an indication to the contrary, the [drafter’s]

choice of the mandatory term shall rather than the

permissive term may indicates that the . . . directive

is mandatory.’’ (Citation omitted; internal quotation

marks omitted.) Vargas v. Doe, 96 Conn. App. 399, 412,

900 A.2d 525, cert. denied, 280 Conn. 923, 908 A.2d 546

(2006). Ordinarily, then, a motion to reconsider must

be timely filed, and a court may and usually should

decline to consider an untimely motion.

Our determination that the filing deadline in Practice

Book § 11-12 is mandatory, however, does not end the

inquiry. ‘‘Rules of practice are not statutory or constitutional mandates, but they reflect the courts’ authority

to prescribe rules to regulate their proceedings and

facilitate the administration of justice . . . . Even if a

. . . Practice Book rule must be strictly construed and

is mandatory, compliance with its requirements does

not necessarily become a prerequisite to a court’s subject matter jurisdiction.’’ (Citations omitted; internal

quotation marks omitted.) State v. Falcon, 84 Conn.

App. 429, 433, 853 A.2d 607 (2004), overruled in part

on other grounds by State v. Das, 291 Conn. 356, 368,
968 A.2d 367 (2009); see also Lo Sacco v. Young, supra,

210 Conn. 508 (failure to comply with mandatory time

requirement in our rules of practice does not affect

subject matter jurisdiction); Practice Book § 1-8 (‘‘[t]he

design of these rules being to facilitate business and

advance justice, they will be interpreted liberally in any

case where it shall be manifest that a strict adherence

to them will work surprise or injustice’’). For example,

our Supreme Court has held that a failure to meet the

twenty day deadline to appeal from a final judgment,

as required by our rules of practice, does not deprive an

appellate court of jurisdiction, even where the opposing

party files a motion to dismiss the untimely appeal. See

Kelley v. Bonney, 221 Conn. 549, 559, 606 A.2d 693

(1992) (‘‘pursuant to Practice Book § 4056 [now § 66-

8], the Appellate Court had broad discretion to hear

the appeal, whether timely filed or not’’). The issue,

then, is whether the court abused its discretion in granting the defendants’ motions to reargue, which were

untimely according to the terms of our rules of practice.

After a thorough review of the record, we conclude

that the court did not abuse its discretion in considering

the defendants’ untimely 2011 motions to dismiss. First,

as noted previously, noncompliance with mandatory

filing deadlines in our rules of practice does not deprive

the court of subject matter jurisdiction to consider the

pleading. Second, the defendants, in filing their 2011

motions to dismiss, sought reconsideration because of

a newly articulated controlling principle of law set forth

by our Supreme Court in Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 1. See Opoku v. Grant, 63

Conn. App. 686, 692–93, 778 A.2d 981 (2001) (‘‘[T]he

purpose of a reargument is . . . to demonstrate to the

court that there is some decision or some principle of

law which would have a controlling effect, and which

has been overlooked, or that there has been a misapprehension of facts. . . . [A] motion to reargue . . . is

not to be used as an opportunity to have a second bite

of the apple or to present additional cases or briefs

which could have been presented at the time of the

original argument.’’ [Citations omitted; internal quotation marks omitted.]). Thus, it was reasonable for the

defendants to file what amounts to a late motion to

reargue before a second judge in light of the Supreme

Court’s decision in Bennett, issued almost four years

after Judge Jones issued his ruling on the defendants’

2006 motions to dismiss.23

Forthe aforementioned reasons we conclude that the

court properly considered and granted the defendants’

2011 motions to dismiss.

II

The plaintiff also claims thatthe court erred in rendering summary judgment as to her claims of lack of

informed consent against Carrese and Yaari. Specifically, the plaintiff argues that the court (1) erred in
concluding that Carrese had no duty to obtain the plaintiff’s informed consent, and (2) erred in concluding that

Yaari had no obligation to disclose to the plaintiff that

the cesarean hysterectomy24 could perhaps be more

safely performed at another health care facility. We

address these claims separately.

‘‘Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, 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.

In deciding a motion for summary judgment, the trial

court must view the evidence in the light most favorable

to the nonmoving party. . . . The party moving for

summary judgment has the burden of showing the

absence of any genuine issue of material fact and that

the party is, therefore, entitled to judgment as a matter

of law.25. . . Our review of the trial court’s decision

to grant [the defendant’s] motion for summary judgment

is plenary.’’ (Internal quotation marks omitted.) Milton

v.Robinson, 131Conn.App. 760, 779, 27A.3d 480 (2011),

cert. denied, 304 Conn. 906, 39 A.3d 1118 (2012).

‘‘[T]he lack of informed consent claim is a different

cause of action from [a] claim of [medical] negligence

. . . .’’26 Goral v. Kenney, 26 Conn. App. 231, 237 n.7,

600 A.2d 1031 (1991). ‘‘In order to prevail on a cause

of action for lack of informed consent, a plaintiff must

prove both [1] that there was a failure to disclose a

known material risk of a proposed procedure and [2]

that such failure was a proximate cause of his injury.’’27

(Emphasis added.) Shortell v. Cavanagh, 300 Conn. 383,

388, 15 A.3d 1042 (2011). In order to obtain valid

informed consent, the physician’s disclosure to the

patient must include four factors: (1) the nature of the

procedure; (2) the risks and hazards of the procedure;

(3) the alternatives to the procedure; and (4) the anticipated benefits of the procedure. Logan v. Greenwich

Hospital Assn., 191 Conn. 282, 292, 465 A.2d 294 (1983).

Our Supreme Court has adopted an objective lay standard for determining the materiality of risk. See, e.g.,

Shortell v. Cavanagh, supra, 300 Conn. 388 (‘‘[u]nlike a

medical malpractice claim, a claim for lack of informed

consent is determined by a lay standard of materiality,

rather than an expert medical standard of care which

guides the trier of fact in its determination’’); see also

Logan v. Greenwich Hospital Assn., supra, 191 Conn.

292 (adopting lay standard for lack of informed consent

claims). ‘‘[T]he lay standard of informed consent

requires a physician to provide the patient with that

information which a reasonable patient would have

found materialfor making a decision whetherto embark

upon a contemplated course of therapy.’’ (Emphasis in

original; internal quotation marks omitted.) Duffy v.

Flagg, 279 Conn. 682, 692, 905 A.2d 15 (2006). ‘‘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, 291. Our Supreme Court has also noted, however,

‘‘that the cases on informed consent require something

less than a full disclosure of all information which may

have some bearing, however remote, upon the patient’s

decision.’’ (Internal quotation marks omitted.) Duffy v.

Flagg, supra, 692.

A

The plaintiff claims that the court erred in concluding

that Carrese had no duty to obtain the plaintiff’s

informed consent. The plaintiff argues, essentially, that,

because Carrese was providing her prenatal care and

anticipated that he would be the physician to perform

the eventual cesarean section, he had an obligation

to provide the plaintiff, and any subsequent substitute

treating physician, with information about the plaintiff’s

condition and the nature of her pregnancy ‘‘such that

she could make knowing consent to treatment.’’28 We

disagree.

The following additional facts and procedural history

are relevant. In count one of her April 21, 2011 revised

complaint, the plaintiff alleged that Carrese (1) ‘‘failed

to advise the plaintiff in timely fashion of her options

with respect to complete bed rest, early delivery or

other means of dealing with potentially life threatening

complication of placenta percreta in a timely and appropriate fashion’’; (2) ‘‘failed to advise the plaintiff of the

possibility of complications during delivery due to her

condition(s) of placenta previa, placenta accreta and/

or placenta percreta’’; and (3)‘‘failed to advise the plaintiff of the risk that her bladder would be injured during

the cesarean [hysterectomy] . . . .’’

On July 28, 2011, Carrese moved for summary judgment on the grounds that the plaintiff did not allege

lack of informed consent29 or alternatively, to the extent

that a lack of informed consent claim was pleaded, no

genuine issue of fact existed. In support of his motion,

Carrese submitted his affidavit. In its January 3, 2012

memorandum of decision, the court granted the motion

and explained its decision: ‘‘The plaintiff does not dispute that Carrese neither performed nor participated

in the plaintiff’s cesarean hysterectomy. Therefore, Carrese had no duty to obtain the plaintiff’s informed consent. Carrese’s motion for summary judgment is

granted.’’

The plaintiff argues that because Carrese provided

her prenatal care and anticipated that he would be the

physician to perform the eventual cesarean section, he

had an obligation to provide the plaintiff, with information about the plaintiff’s condition and the nature of
her pregnancy ‘‘such that she could make knowing consent to treatment.’’ The plaintiff also argues that Carrese

had an obligation to provide any subsequent substitute

treating physician with information about her condition

such that she could give informed consent to treatment.

We disagree.

Our case law regarding the issue of a physician’s

obligation to obtain a patient’s informed consent

focuses on the decision ‘‘to embark upon a contemplated course of therapy,’’ such as a ‘‘procedure,’’ ‘‘operation,’’ or ‘‘surgery.’’ (Internal quotation marks

omitted.) Logan v. Greenwich Hospital Assn., supra,

191 Conn. 290–94 (examining our informed consent

case law).Carrese provided the plaintiff prenatal care.It

is undisputed that Carrese did not perform the plaintiff’s

cesarean section and was on vacation with his family

at the time of the plaintiff’s surgery. Although he may

have anticipated performing a cesarean section sometime in the future, the operation was not imminent and

there was no immediate reason for specific informed

consent. Unlike performing a cesarean section, providing prenatal care is not a ‘‘procedure,’’ ‘‘operation,’’

or ‘‘surgery.’’

Under the current state of the law of informed consent, Carrese did not have an obligation to provide the

plaintiff, or any subsequent substitute treating physician, with information regarding the increased risks the

plaintiff might face when undergoing a cesarean section

due to her condition of placenta previa.30

The plaintiff makes much of the fact that Carrese

intended at some point to perform the cesarean section.

Under our law, however, a physician’s obligation to

obtain informed consent turns on the performance of

a procedure and not the intent to perform a procedure.

Consequently, we find that the plaintiff’s arguments are

unavailing. See, e.g., Sherwood v. Danbury Hospital,

278 Conn. 163, 171 n.8, 192, 194, 896 A.2d 777 (2006)

(obligation to inform patient of risks of blood transfusion is owed by physician performing surgery and him

‘‘alone’’ [emphasis omitted]).

B

The plaintiff’s final claim is that the court erred in

concluding that Yaari had no obligation to disclose to

the plaintiff, in order to ensure that consent was

informed, that the procedure could be better performed

at another health care facility. The plaintiff argues that

Yaari had an obligation to advise the plaintiff of the

option of having a cesarean hysterectomy at another

health care facility, more specifically, a ‘‘tertiary facility’’ with other specialists present, because Yaari reasonably anticipated that the procedure would require

expertise beyond his specialty.31 The defendant contends that the law of informed consent does not impose

the obligation, at least in general, of advising a patient
that a different facility might provide more sophisticated care.

The following additional facts and procedural history,

as recited by the trial court, are relevant. ‘‘Sometime

afterthe plaintiff was admitted to the hospital on August

5, 1004, Yaari suspected and subsequently confirmed

that she had placenta previa. . . . Yaari also suspected

that the plaintiff had placenta accreta. Yaari tried to

stop the contractions and, according to the contemporaneous hospital record, he ‘explained to the [plaintiff]

that there [was] a good chance that we might need to

remove the uterus and there might be damage to the

bladder during this kind of operation because of the

location of the previous uterine incisions. The [plaintiff]

consented. This was also explained to her husband.’

. . .

‘‘In her affidavit in opposition to the defendants’

motions for summary judgment, however, the plaintiff

state[d] that ‘Yaari . . . did not advise me of the risks

associated with undertaking a cesarean section in the

presence of placenta accreta or placenta percreta nor

did he tell me anything about my alternatives at that

time (orin May 2004), including that of having my cesarean delivery take place at an appropriate tertiary facility

and of having it handled by a team of specialists experienced in dealing with very difficult, potentially lifethreatening lower abdominal surgery. . . . Yaari did

not tell me that he suspected that I had placenta accreta

or placenta percreta nor did he mention anything about

my bladder or my ureters potentially being damaged

should he go ahead with the surgery.’ . . .

‘‘The plaintiff signed a consent form giving Yaari permission to perform a ‘repeat C-Section, Possible Hysterectomy, Possible [illegible].’ Specifically, the form

state[d]: ‘My condition, the nature of the above procedure, risks and hazards of the procedure, the benefits

of the procedure, any problems related to recuperation,

the likelihood of success of the procedure, all viable

alternatives to the procedure and the same type of information regarding such alternatives have been explained

to my satisfaction by . . . Yaari.’ Yaari also signed the

consent form, affirming that he had provided the information to the plaintiff.

‘‘After performing the cesarean section, Yaari discovered that the plaintiff in fact had placenta percreta and

that the placenta had invaded the wall of the bladder

causing substantial bleeding, requiring a hysterectomy.

The contemporaneous hospital record signed by Yaari

further states that the plaintiff ‘was taken to the

operating room and a cesarean section was performed.

A live baby girl was delivered. . . . Because of the

severe bleeding that we could not prevent . . . we had

to pursue a cesarean hysterectomy. Because of the location of the placenta at the lower level of the uterus, it

penetrated the posterior wall of the bladder and thus
was removed with the uterus and we called for intraoperative urology evaluation. The urology team arrived,

headed by Dr. [Jeffrey] Small, and the patient had later

on a reconstruction of the bladder and reimplantation

of the one of the ureters.’ ’’

On August 1, 2011, Yaari filed a motion for summary

judgment, arguing that he was entitled to judgment as

a matter of law because there was no genuine issue of

material fact that he disclosed all material risks to the

plaintiff.32 The plaintiff opposed the motion, arguing

that Yaari had a duty to advise her of the option of

having a cesarean hysterectomy at a tertiary facility,

with other physicians present, including a urologist and

a gynecologist-oncologist. Yaari maintained that the law

of informed consent did not impose such an obligation.

The court granted Yaari’s motion for summary judgment

on December 30, 2011. The court held that ‘‘[u]nder the

circumstances of this case, where the plaintiff concedes

that she would have had a cesarean hysterectomy

regardless of whether Yaari otherwise obtained her

informed consent, and where there is no allegation nor

evidence that Yaari was not competent, prepared and

experienced to perform a cesarean hysterectomy, there

is no genuine issue of material fact that . . . Yaari did

not violate any duty to the plaintiff by not advising her

that she might have the surgery performed by more

experienced physicians or more specialized physicians.’’

We note initially that the plaintiff’s ‘‘informed consent’’ claim has little to do with any known material

risk of a cesarean hysterectomy and thus falls outside

the usual rubric of informed consent. The plaintiff conceded, and our review of the record confirms, that there

is no genuine issue of material fact that the plaintiff

would have undergone a cesarean hysterectomy in any

event—the plaintiff’s counsel so indicated.33 Further,

the record indicates that the cesarean hysterectomy

was necessary to save the plaintiff’s life.34 Additionally,

the plaintiff did not allege, or present any evidence

showing, that Yaari was not competent to perform the

cesarean hysterectomy. The crux of the plaintiff’s lack

of informed consent claim as to Yaari is solely that Yaari

‘‘depriv[ed] her of the choice to seek the intervention of

physicians more experienced in and/or specializing in

dealing with this type of condition.’’ Yaari contends that

the current state of the law of informed consent in

Connecticut imposes no such affirmative obligation

on physicians.

None of our courts have addressed a claim closely

analogous to the plaintiff’s—that is, whether a physician

has an obligation to inform his or her patient that a

procedure may be better performed at another health

care facility.35 We hold that on the facts presented in

this case, Yaari had no such obligation. Our holding is

informed primarily by binding precedent such as Shor-
tell v. Cavanagh, supra, 300 Conn. 383, and Logan v.

Greenwich Hospital Assn., supra, 191 Conn. 282, which

suggest that the gravamen of informed consent is a

discussion of the material risks of the procedure itself.

The procedure itself does not necessarily extend to the

place where the procedure is to be performed; in the

circumstances of this case, the alleged fact that the

facility was not a tertiary facility was not, as a matter

of law, a material risk.36

The judgment is affirmed.

In this opinion the other judges concurred.

1 As the trial court explained: ‘‘Placenta previa is a condition in which

the placenta is implanted in the lower segment of the uterus, thereby partially

or completely obstructing the internal bone of the cervix. . . . Placenta

accreta is a condition where the placenta has grown through the placental

membrane and into the uterine wall, so that it cannot be detached without

removing the uterus. . . . As this case and the literature indicates, placenta

percreta is a condition in which the placenta can grow through the uterus

and into the bladder.’’ (Citations omitted.)

2 According to the court, ‘‘On June 30, 2006, the court had granted the

plaintiff’s petition to extend the statute of limitations ninety days pursuant

to General Statutes § 52-190a (b). The statute of limitations would otherwise

have expired on August 5, 2006. The extended statute of limitations, therefore, was November 4, 2006.’’

3 The court noted that ‘‘[a]lthough the complaint does not indicate whether

the defendants are board certified, it is undisputed that both [defendants]

are board certified obstetricians-gynecologists.’’

4 On January 3, 2007, the plaintiff filed a request to amend and an amended

complaint, the only material changes being (1) the original written opinion

letter’s author was revealed to be Jay Motola, a board certified urologist,

and (2) the attachment of a second written opinion letter authored by Daniel

Miller, an obstetrician-gynecologist. Neither defendant objected.

5 On October 17, 2006, counsel for Yaari filed an appearance. His motion

to dismiss was filed within thirty days of filing an appearance, as is required

by Practice Book § 10-30.

6 On October 18, 2006, counsel for Carrese filed an appearance. His motion

to dismiss was filed within thirty days of filing an appearance, as is required

by Practice Book § 10-30.

7 On May 4, 2007, the defendants each filed motions to reargue claiming,

inter alia, that in denying their motions to dismiss the court improperly had

considered a subsequent complaint and opinion letter filed by the plaintiff.

The court, Jones, J., denied the defendants’ motions to reargue, noting that

it did not rely on the plaintiff’s amended complaint or subsequent opinion

letters in doing so.

8 The plaintiff objected to the defendants’ motions to dismiss, arguing that

(1) the defendants’ motions to dismiss were the functional equivalent of

motions to reargue the prior rulings on the motions and were untimely

under Practice Book § 11-12; (2) Bennett v. New Milford Hospital, Inc.,

supra, 300 Conn. 1, should not be applied retroactively to this case; (3) the

opinion letter attached to the plaintiff’s good faith certificate was authored

by a similar health care provider as defined by § 52-184c (c); (4) § 52-190a

violates article second of the Connecticut constitution; and (5) judicial

economy requires denial of the defendants’ motions.

9 The court filed its memorandum of decision on March 14, 2011, after

having issued written orders granting the motions to dismiss on March 7,

2011. The plaintiff subsequently filed a motion to reargue on March 7, 2011,

which the court denied in part. The plaintiff then filed an amended complaint

on April 21, 2011.

10 On January 11, 2012, the plaintiff filed a motion to reargue, which the

court denied on January 30, 2012. On February 16, 2012, the plaintiff filed

this appeal.

11 Practice Book (2006) § 10-30 provides in relevant part: ‘‘Any defendant,

wishing to contest the court’s jurisdiction, may do so even after having

entered a general appearance, but must do so by filing a motion to dismiss

within thirty days of the filing of an appearance. . . .’’

12 General Statutes § 52-190a (a) provides in relevant part: ‘‘No civil action

or apportionment complaint shall be filed to recover damages resulting from
personal injury or wrongful death occurring on or after October 1, 1987,

whether in tort or in contract, in which it is alleged that such injury or death

resulted from the negligence of a health care provider, unless the attorney

or party filing the action or apportionment complaint has made a reasonable

inquiry as permitted by the circumstances to determine that there are

grounds for a good faith belief that there has been negligence in the care

or treatment of the claimant. . . . [T]he claimant or the claimant’s attorney

. . . shall obtain a written and signed opinion of a similar health care

provider, as defined in section 52-184c, which similar health care provider

shall be selected pursuantto the provisions of said section,that there appears

to be evidence of medical negligence and includes a detailed basis for the

formation of such opinion. . . .’’

13 General Statutes § 52-184c (c) provides: ‘‘If the defendant health care

provider is certified by the appropriate American board as a specialist, is

trained and experienced in a medical specialty, or holds himself out as a

specialist, a ‘similar health care provider’ is one who: (1) Is trained and

experienced in the same specialty; and (2) is certified by the appropriate

American board in the same specialty; provided if the defendant health care

provider is providing treatment or diagnosis for a condition which is not

within his specialty, a specialist trained in the treatment or diagnosis for

that condition shall be considered a ‘similar health care provider’.’’

14 Although the plaintiff may have obtained opinion letters from board

certified obstetrician-gynecologists after the action commenced, after the

defendants had filed their motions to dismiss, and after the statute of limitations had expired, the court may not consider those documents. See, e.g.,

Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn. App. 569,

585, 966 A.2d 813, cert. denied, 292 Conn. 911, 973 A.2d 661 (2009).

15 Practice Book (2006) § 10-30 (b) provides in relevant part: ‘‘Any defendant, wishing to contest the court’s jurisdiction, may do so even after having

entered a general appearance, but must do so by filing a motion to dismiss

within thirty days of the filing of an appearance. . . .’’ (Emphasis added.)

Practice Book (2006) § 10-31 (a) provides in relevant part that ‘‘[t]he

motion to dismiss shall be used to assert (1) lack of jurisdiction over the

subject matter, (2) lack of jurisdiction over the person, (3) improper venue,

(4) insufficiency of process, and (5) insufficiency of service of process. . . .’’

16 On January 31, 2011, Yaari moved to dismiss the plaintiff’s September

15, 2006 complaint pursuant to § 52-190a (c), on the ground that the plaintiff’s

complaint did not comply with the requirements of § 52-190a because the

written good faith opinion letter was not authored by a health care provider

similar to Yaari. On February 10, 2011, Carrese filed a motion to dismiss

on similar grounds.

17 The defendants’ 2006 motions to dismiss—filed on November 13, 2006,

and November 15, 2006, respectively—raised the issue of the adequacy of

the plaintiff’s § 52-190a opinion letter and were denied by the court, Jones,

J., on April 16, 2007.

18 Practice Book § 11-12 (a) provides: ‘‘A party who wishes to reargue a

decision or order rendered by the court shall, within twenty days from the

issuance of notice of the rendition of the decision or order, file a motion

to reargue setting forth the decision or order which is the subject of the

motion, the name of the judge who rendered it, and the specific grounds

for reargument upon which the party relies.’’

19 On March 7, 2011, the court granted the defendants’ motions to dismiss

the entire complaint. The court subsequently vacated its decision as to the

plaintiff’s claims of lack of informed consent, the result of which was that

only the professional negligence claims remained dismissed.

20 We note that the defendants’ 2006 motions to dismiss were timely filed

in accordance with Practice Book (2006) § 10-30 because they were filed

within thirty days of the defendants’ counsel filing their appearances in

this case.

21 On appeal, the plaintiff also now claims that the court, Levin, J., improperly considered the defendants’ 2011 motions to dismiss because the 2011

motions to dismiss were motions to reargue Judge Jones’ earlier denial of

their 2006 motions to dismiss. The motions were not decided by the same

judge who denied their earlier motions to dismiss, as is required by Practice

Book § 11-12 (c). Practice Book § 11-12 (c) provides in relevant part that

‘‘[a] motion to reargue shall be considered by the judge who rendered the

decision or order. . . .’’ The plaintiff did not raise this argument in her

written objection to the defendants’ 2011 motions to dismiss or at the hearing

on the defendants’ 2011 motions to dismiss. Because the plaintiff raises this

argument for the first time on appeal, we find it was not preserved, and we
decline to address it.

22 On cross appeal, the defendants argue that if this court finds that Judge

Levin properly could not reconsider Judge Jones’ denial of the defendants’

original 2006 motions to dismiss, then this court should find, nonetheless,

that Judge Jones’ denials of the 2006 motions to dismiss were improper

under Bennett v. New Milford Hospital, Inc., supra, 300 Conn. 1. Because

we find that the court, Levin, J., properly considered the defendants’ 2011

motions to dismiss, we find it unnecessary to address the defendants’ argument on cross appeal.

23 Unusual practical considerations were presented here. The trial court

correctly determined that Bennett was to have retroactive effect. See, e.g.,

Marone v. Waterbury, 244 Conn. 1, 10, 707 A.2d 725 (1998) (‘‘judgments that

are not by their terms limited to prospective application are presumed to

apply retroactively’’). In light of Bennett, the court was faced with a situation

in which any judgment rendered on the professional negligence issues in

favor of the plaintiff would likely be reversed in any event. By dealing with

the issue, the court avoided the time and expense, to the state and to the

parties, of a perhaps pointless trial.

24 Where appropriate, the operative procedures involving the cesarean

section and the hysterectomy will be referred to collectively as ‘‘the cesarean hysterectomy.’’

25 ‘‘The party opposing a motion for summary judgment must present

evidence that demonstrates the existence of some disputed factual issue.

. . . The movant has the burden of showing the nonexistence of such issues

but the evidence thus presented, if otherwise sufficient, is not rebutted by

the bald statement that an issue of fact does exist. . . . To oppose a motion

for summary judgment successfully, the nonmovant must recite specific

facts . . . which contradict those stated in the movant’s affidavits and documents. . . . The opposing party to a motion for summary judgment must

substantiate its adverse claim by showing that there is a genuine issue of

material fact together with the evidence disclosing the existence of such

an issue.’’ (Internal quotation marks omitted.) Milton v. Robinson, 131 Conn.

App. 760, 779, 27 A.3d 480 (2011), cert. denied, 304 Conn. 906, 39 A.3d

1118 (2012).

26 ‘‘[T]he focus of a medical malpractice case is often a dispute involving

the correct medical standard of care and whether there has been a deviation

therefrom. Conversely, the focus in an action for lack of informed consent

is often a credibility issue between the physician and the patient regarding

whether the patient had been, or should have been, apprised of certain risks

prior to the medical procedure.’’ Shortell v. Cavanagh, 300 Conn. 383, 389,

15 A.3d 1042 (2011); see also Caron v. Adams, 33 Conn. App. 673, 687, 638

A.2d 1073 (1994) (‘‘the basis for claiming a lack of informed consent is a

failure to make a sufficient disclosure of the risks of or alternatives to a

certain medical procedure or treatment’’).

27 ‘‘Our standard of disclosure for informed consent in this state is an

objective standard that does not vary from patient to patient based on what

the patient asks or what the patient would do with the information if it

were disclosed. As this court stated in [Logan v. Greenwich Hospital Assn.,

191 Conn. 282, 292–93, 465 A.2d 294 (1983)], the lay standard of informed

consent requires a physician to provide the patient with that information

which a reasonable patient would have found material for making a decision

whether to embark upon a contemplated course of therapy. . . . In adopting

the objective lay standard, this court recognized that rather than impose

on the physician an obligation to disclose at his peril whatever the particular

patient might deem material to his choice, most courts have attempted to

frame a less subjective measure of the physician’s duty.’’ (Emphasis omitted;

internal quotation marks omitted.) Duffy v. Flagg, 279 Conn. 682, 692, 905

A.2d 15 (2006).

28 The plaintiff also argues that the court improperly relied on cases involving the duties of referring physicians because Carrese was not a referring

physician. We agree with the plaintiff that Carrese was not a referring

physician. We note that the trial court, however, in discussing cases involving

the duties of referring physicians, stated that ‘‘[h]ere, Carrese was not even

a referring physician.’’

29 Carrese argues that the plaintiff did not properly allege lack of informed

consent and notes that the first time the plaintiff argued that there was a

pending lack of informed consent claim was in seeking to reargue the

dismissal of her medical malpractice claims. Carrese argues that count one

of the original complaint alleged medical negligence against Carrese and

not lack of informed consent. Lack of informed consent is a cause of action
separate from a claim of medical negligence and arises from a different set

of facts. See, e.g., Hammer v. Mount Sinai Hospital, 25 Conn. App. 702,

706, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991). The

plaintiff, therefore, had the burden, pursuant to Practice Book § 10-26, to

plead the lack of informed consent claim in a separate count properly to

put Carrese on notice of that claim. We note that regardless of whether the

plaintiff properly alleged a cause of action that was based on lack of informed

consent in the original complaint, the court ordered the defendants to

address the plaintiff’s claimed cause of action of lack of informed consent,

the defendants had notice of such claim, and the defendants may have

implicitly agreed to allow the plaintiff to amend her complaint to include

this cause of action by not objecting. Even if the plaintiff did not plead lack

of informed consent in her original complaint, in light of the defendants’

actions and notice of the plaintiff’s lack of informed consent claims, we

decline to address the defendants’ argument further.

30 Because the procedure was to be performed in the future and Carrese

was never in the position to be the operating surgeon, we conclude that

Carrese had no obligation to obtain informed consent. We do not address

the broader issue of whether the applicable standard of care was deviated

from in the course of the plaintiff’s care.

31 The court stated: ‘‘At oral argument on the defendants’ motions [for

summary judgment], the plaintiff clarified that the crux of her claim was

not that she would not have had a cesarean section or a hysterectomy if

provided with additional information, but rather that she should have been

told that the procedure should have been completed at a ‘tertiary facility,’

by a more skilled surgeon, with a team of specialists present.’’

32 The court held that there was no genuine issue of material fact that the

plaintiff would have undergone a cesarean hysterectomy.

33 The plaintiff’s attorney made the following remarks at the hearing on

the defendants’ motions for summary judgment:

‘‘[The Plaintiff’s Counsel]: Thank you, Your Honor. Your Honor, as to

the—just addressing quickly the informed . . . consent form that the defendant, Dr. Yaari has provided a copy of . . . all it says is repeat [cesarean]

section and possible hysterectomy. It says something else, possible greater,

I can’t read the words, but it says nothing, Your Honor, and the testimony

is . . . at no time did Dr. Yaari tell [the plaintiff] that because she’d had

multiple prior [cesarean] sections and had a placenta previa, she was at a

substantially increased risk of suffering from placenta percreta and/or placenta accreta. Placenta percreta is a more advanced or complicated version.

And in fact, she did suffer from placenta percreta. And he never had a

percreta or accreta discussion with her ever, Your Honor. . . .

‘‘The Court: What would have changed if she had? . . .

‘‘[The Plaintiff’s Counsel]: What would have changed, Your Honor, firstly,

in May of 2004, she was at Bridgeport Hospital. Dr. Yaari was again covering

for Dr. Carrese and was the responsible physician. . . . And the hospital

[record] says . . . suspected placenta previa, will tell Dr. Yaari when he

calls in an hour, something to that effect.

‘‘And so, that he knew so months before the delivery, it is our position,

and it certainly is an issue of fact on this, at least that she had a placenta

previa condition, and he knew about her prior [cesarean] sections. Under

those circumstances . . . [w]hat . . . we’re saying is that, well, certainly

she should have been given the risks and the alternatives to that. . . .

‘‘The Court: This is alternatives to what?

‘‘[The Plaintiff’s Counsel]: . . . [T]o having Dr. Carrese and/or Dr. Yaari

perform this cesarean section, cesarean section hysterectomy. A lot of them

are saying, and most—certainly all the plaintiff’s experts and a number of

the defendant’s experts, that it would have been preferable to have an

experienced general pelvic surgeon. It’s [a] very unusual occurrence, this

placenta accreta, in the life of an . . . obstetrician-gynecologist. And it’s—

it’s the plaintiff’s position that she would have liked to have known that

she was in an elevated risk of suffering lower urinary tract injury and that

she could have gone and she would like to have known the alternative

of going to, and having present, an experienced, let’s say, gynecological

oncologist to this procedure on her. . . .

‘‘The Court: Gynecological oncologist, did you say?

‘‘[The Plaintiff’s Counsel]: Yes. Yes, Your Honor, in other words, a doctor

who specializes in complicated lower urinary tract surgeries, for example.

So, rather—and she could have, if she’d known, if this had been brought

to her attention . . . you know, she could have had an alternative of having

somebody who specializes in this kind of complicated condition deal with

it. In fact, she was told nothing about it. She only found [out] about placenta

percreta, placenta accreta, after the delivery. They told her nothing about it.

‘‘And, in fact, Dr. [Frank] Boehm, Dr. Yaari’s expert, says that Dr. Yaari

knew ahead of time or suspected strongly that she had an accreta. And . . .

Dr. [Jeffrey] Richardson, one of the plaintiff’s experts, testified that, in fact,

he suspected that she—oh, testified that Dr. Yaari did anticipate on August

5, before the delivery was attempted, there was a placenta accreta and/or

percreta present, and that urologic injury could occur during the procedure.
‘‘And that because of knowing about it ahead of time, he, quote, he had

the luxury of time. In other words, we don’t accept that there is an emergency

exception, Your Honor. I believe that all that the defendant has cited to on

this issue is a state regulation, it’s not a statute, that simply says that hospitals

should make sure that doctors get informed consent. That’s essentially what

that regulation says. It doesn’t say anything about doctors don’t have to get

informed consent if there’s an emergency.

‘‘But beyond that, it’s our position, Your Honor, that there was not an

emergency, that . . . there was sufficient time for [the plaintiff] to give

informed consent, to have a discussion about possible bladder injury, about

possible urethral injury, about an option of having a urologist or a gynecological oncologist deal with the procedure. She wasn’t given any of these options.

She was not told the risks. She was not told the alternatives. And, Your

Honor, it’s the plaintiff’s position that that’s exactly what informed consent

is about. She should have been told of these risks and alternatives, and she

was not . . .

‘‘The Court: What . . . other alternatives were there, again, other than

you mentioned an experienced pelvic surgeon or gynecological oncologist?

‘‘[The Plaintiff’s Counsel]: She would have, Your Honor, have had to

undergo an operation where her uterus was removed. She would have had

to undergo a hysterectomy. But, Your Honor, it is our view that had she

been given this option of going with someone who knew what he was doing

and did this as a specialist, she would not be permanently unable to use

the bathroom today. She wasn’t given that option because she wasn’t told

about it.’’ (Emphasis added.)

34 In its memorandum of decision, the court stated: ‘‘In the deposition of

Dr. Frederick Rau, an obstetrician-gynecologist, the following exchange

occurred:

‘‘Q. And in reviewing all the records, have you developed any opinions

as to whether or not . . . Yaari conformed to the standard of care in his

care and treatment of [the plaintiff] in this particular situation?

‘‘A. I believe that . . . Yaari did conform to the standard of care in this

very difficult situation. . . . I don’t think he had any choice but to proceed

with the operation, perform the cesarean hysterectomy, and then manage

the bleeding and urologic issues after the hysterectomy.

‘‘Yaari submitted a portion of an uncertified deposition transcript of Dr.

Jeffrey Richardson, an obstetrician-gynecologist, who testified that the hysterectomy saved the plaintiff’s life. The pertinent deposition testimony is

as follows:

‘‘Q. Okay. Did the hysterectomy that was done in this case save [the

plaintiff’s] [life]? . . .

‘‘A. I would say the hysterectomy saved her [life].’’

‘‘Additionally, the plaintiff submitted a portion of a certified deposition

transcript of Dr. Frank Boehm, an obstetrician-gynecologist, who testified

that the circumstances of the plaintiff’s case constituted a life-threatening

situation. The pertinent deposition testimony is as follows:

‘‘A. [T]his is a life-threatening situation, placenta percreta with a previa.

The amount of blood loss was obviously enormous; the [plaintiff] received

nine units of blood.’’ (Emphasis omitted.)

35 The Wisconsin Supreme Court addressed an analogous claim in Adler v.

Kokemoor, 199 Wis. 2d 615, 545 N.W.2d 495 (1996) (where plaintiff produced

evidence showing defendant misrepresented mortality rates and his experience performing surgery, with respect to lack of informed consent claim,

court properly allowed plaintiff to introduce evidence showing decreased

risk of complications had plaintiff undergone neurosurgery for aneurysm

at a tertiary care facility). In Adler, the court considered whether a trial

court was correct in allowing the plaintiff to present evidence that the

defendant physician should have advised the plaintiff of the possibility of

undergoing surgery at a tertiary care facility with a more experienced surgeon. While we are not bound by Adler, we note that the facts of Adler—

which involved a physician who misrepresented mortality rates and did not

disclose the fact that, although he had performed thirty operations to clip

anterior circulation aneurysms, he had never performed operations to clip

the significantly more complicated posterior circulation aneurysms like the

one from which the plaintiff suffered—are wholly unlike the facts of this

case.

36 We do not foreclose the possibility that, in other circumstances, analogous factors may appropriately be regarded to be material risks subject to

consideration by a jury. For example, we do not necessarily rule out a

surgeon’s complete lack of experience or a grossly unsanitary operating

facility as a material risk attendant to the procedure. In this matter, risks

material to the procedure were disclosed, and there was never a suggestion

that the surgeon was not competent to perform the procedure. The plaintiff

now asserts that, had she known of all of the possible sequelae and places

where the surgery perhaps could have been performed, she would have

opted for a ‘‘tertiary facility.’’ Although, as noted previously, we express no

opinion as to whether the issue raises questions of professional negligence,

we do not hold that advising as to ‘‘tertiary facilities’’ was required on the

facts of this case. There was no evidence that this facility was substandard

and, in any event, there is almost always a more prestigious facility

somewhere.