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*********************************************** 
LAUREN WOOD v. THOMAS J.

RUTHERFORD ET AL.

(AC 40142)

Sheldon, Elgo and Flynn, Js.

Syllabus

The plaintiff patient sought to recover damages from the defendant R, a

licensed gynecological oncologist, alleging that R’s conduct during a

certain postoperative examination constituted battery and the negligent

infliction of emotional distress. The plaintiff alleged that she underwent

a surgical procedure known as a laser ablation of the vulva that was

performed by R, and that he, having subsequently discovered during the

postoperative examination that the plaintiff’s labia were agglutinated,

digitally separated her agglutinated labia without providing her with any

warning or notice. R filed a motion to dismiss, claiming that the plaintiff’s

claims against him were for medical malpractice and, as such, the plaintiff was required by statute (§ 52-190a) to attach to the complaint a

certificate of good faith and a written opinion letter of a similar health

provider. The trial court found that the claims were for medical malpractice and, thus, granted the motion to dismiss without prejudice to the

plaintiff filing a separate action claiming a lack of informed consent.

The plaintiff then filed a revised complaint claiming that R had failed

to obtain her informed consent before embarking on a course of medical

treatment for a complication that he discovered during the postoperative

examination. Subsequently, R filed a motion for summary judgment,

which the court granted on the ground that R’s conduct in separating

the plaintiff’s agglutinated labia was not a separate procedure or course

of treatment giving rise to a duty to obtain informed consent but was,

instead, a part of another examination for which R had received the

written consent of the plaintiff. On appeal, the plaintiff challenged the

trial court’s conclusion and, specifically, claimed that although R had

obtained her informed consent to perform the laser ablation of her vulva

and, as part of that course of treatment, to perform a postoperative

examination, a substantial change in circumstances occurred when R

discovered a complication during the postoperative examination that

required medical intervention, which in turn obligated R to obtain her

informed consent before proceeding further. Held:

1. The trial court improperly granted R’s motion to dismiss the plaintiff’s

battery and negligent infliction of emotional distress counts due to

the plaintiff’s noncompliance with § 52-190a: the written opinion letter

requirement of § 52-190a did not apply to the plaintiff’s battery claim, as

our Supreme Court has held that the written opinion letter requirement

contained in § 52-190a applies only to claims of medical negligence, and

the plaintiff’s battery claim, which contained no allegations of negligence

on the part of R and did not allege any deviation from the applicable

standard of care, was predicated on the alleged lack of informed consent

and was, thus, not subject to that requirement; moreover, the plaintiff’s

negligent infliction of emotional distress count was not a claim of medical negligence subject to the requirements of § 52-190a, as that count

lacked any allegation that R departed from the applicable standard of

care, and it was, instead, derivative of the plaintiff’s battery claim, as

it concerned her general theory that R lacked informed consent to

digitally separate her agglutinated labia.

2. The trial court improperly rendered summary judgment in favor of R

on the plaintiff’s revised complaint: when a substantial and material

alteration of the risks, anticipated benefits, or alternatives previously

disclosed to the patient occurs during a course of medical treatment, the

doctrine of informed consent generally requires an additional informed

consent discussion between the physician and the patient, and, in the

present case, a genuine issue of material fact existed as to whether R’s

discovery of the plaintiff’s medical complication during the postoperative examination constituted a substantial and material change in circumstances, such that R was obligated to disclose the risks, anticipated

benefits, and viable alternatives to the plaintiff before embarking on a
course of treatment, as a finder of fact could have concluded on the

basis of certain statements in the affidavits of the plaintiff and her

mother, which alleged that R, after separating the plaintiff’s agglutinated

labia, informed them that he performed that procedure so that the

plaintiff would not have to go to the operating room for surgery, as well

as R’s admission that severely agglutinated labia may require a surgical

procedure and evidence from both parties of the significant pain experienced by the plaintiff, that R discovered the medical complication during

his initial examination of the plaintiff and then, without her informed

consent, made a unilateral decision to pursue a particular course of

treatment, namely, digital separation, when another viable alternative

existed; moreover, although a physician’s failure to obtain informed

consent may be excused in certain circumstances, such as when the

patient has authorized the physician to remedy complications that arise

during a course of medical treatment, a genuine issue of material fact

existed as to whether the plaintiff had authorized R to remedy unforeseen

complications that arose, not during her laser ablation procedure but,

rather, during the postoperative examination that occurred weeks later,

as the plaintiff’s signed consent form, when read in the light most

favorable to the plaintiff as the nonmoving party, authorized R to take

whatever action may be necessary only with respect to unforeseen

complications that arose during the laser ablation procedure and did

not discuss postoperative care.

Argued May 22, 2018—officially released January 8, 2019

Procedural History

Action to recover damages for, inter alia, battery, and

for other relief, brought to the Superior Court in the

judicial district of Fairfield, where the court, Radcliffe,

J., granted the named defendant’s motion to dismiss;

thereafter, the court granted the plaintiff’s motion to

cite in the named defendant as a party defendant and

the plaintiff filed an amended complaint; subsequently,

the court granted the motion to dismiss filed by the

defendant Yale University and rendered judgment

thereon; thereafter, the court granted the named defendant’s motion for summary judgment and rendered judgment thereon, from which the plaintiff appealed to this

court. Reversed; further proceedings.

John L. Cesaroni, with whom was James R. Miron,

for the appellant (plaintiff).

Tadhg Dooley, with whom, on the brief, was Jeffrey

R. Babbin, for the appellee (named defendant).
Opinion

ELGO, J. This case concerns the conduct of a physician who discovered a complication during a postoperative examination. The plaintiff, Lauren Wood, appeals

from the trial court’s dismissal of her August 25, 2015

amended complaint, which alleged one count of battery

and one count of negligent infliction of emotional distress against the defendant, Thomas J. Rutherford,

M.D.1 The plaintiff claims that the court improperly

concluded that those counts sounded in medical malpractice and, thus, required compliance with General

Statutes § 52-190a. The plaintiff also challenges the propriety of the summary judgment rendered by the court

on her February 8, 2016 revised complaint, which

alleged that the defendant failed to obtain her informed

consent before embarking on a course of treatment

for a complication discovered during a postoperative

examination. We agree with the plaintiff that the court

improperly dismissed the battery and negligent infliction of emotional distress counts of her August 25, 2015

amended complaint, as those counts were predicated

on an alleged lack of informed consent. We further

conclude that a genuine issue of material fact exists

as to whether a substantial change in circumstances

occurred during the course of medical treatment that

necessitated a further informed consent discussion

between the parties, rendering summary judgment inappropriate. We, therefore, reverse the judgment of the

trial court.

The operative complaints, the plaintiff’s August 25,

2015 amended complaint and her February 8, 2016

revised complaint, contain similar factual allegations.

In both, the plaintiff alleged that, at all relevant times,

she was a patient of the defendant, a licensed gynecological oncologist. She further alleged that ‘‘[o]n April

25, 2014, the plaintiff underwent a surgical procedure

known as a CO2

laser ablation2 of the vulva [to remove

precancerous growths] that was performed by [the

defendant] at Yale University Gynecologic Center

. . . . On May 14, 2014, upon the advice of [the defendant], the plaintiff returned to Yale University Gynecologic Center for a postoperative examination. During

the postoperative examination . . . [the defendant]

discovered that the plaintiff’s labia [were] agglutinated.3

During the postoperative examination . . . [the defendant], without any warning or notice to or consent

from the plaintiff . . . forcefully inserted his fingers

through the plaintiff’s agglutinated labia and into her

vagina.’’ (Emphasis added; footnotes added.) The plaintiff further alleged that she sustained injuries as a result

thereof, including ‘‘scarring and impairment to her vulva

and vagina . . . .’’

The plaintiff commenced this action in 2015. Her

August 25, 2015 amended complaint contained two

counts against the defendant that alleged that his con-
duct during the postoperative examination constituted

battery and negligent infliction of emotional distress.

In response, the defendant filed a motion to dismiss,

in which he argued that ‘‘regardless of the caption

applied to them by the plaintiff, both of the claims . . .

are for medical malpractice. As such, the plaintiff is

required by [§] 52-190a4

to attach to the complaint a

good faith certificate and written opinion letter. The

plaintiff’s failure to attach these documents is fatal to

her claim and mandates that it be dismissed.’’ (Footnote added.)

The court heard argument from the parties on that

motion on October 19, 2015, at which the plaintiff’s

counsel acknowledged that the plaintiff had consented

to the postoperative examination on May 14, 2014, but

not to the defendant forcefully separating her agglutinated labia without warning or notice to her.5 The plaintiff’s counsel emphasized that, in her complaint, the

plaintiff did not ‘‘allege that there was a deviation of

the standard of care. . . . We don’t allege negligence

in this case.’’ Counsel then stated that count one of the

complaint ‘‘is not a negligence case. Count one is a

battery case, and the theory of battery as a basis for

recovery’’ against the defendant was his failure to obtain

informed consent. Counsel continued: ‘‘We don’t claim

negligence at all. Our claim here is that [the plaintiff]

had no knowledge . . . and was not informed . . .

and didn’t consent to [the defendant] sticking his fingers

into her vagina the way he did . . . .’’ In response, the

court stated in relevant part: ‘‘[Y]ou certainly have every

right to plead that this was a surgical procedure, that

there was a lack of informed consent and, as a result

of a lack of informed consent, the plaintiff sustained

damages . . . . That you can do. You can’t transform

. . . what amounts to a medical negligence or malpractice claim into a tortious action for purposes of circumventing § 52-190a . . . .’’ The court then made an

express finding that the three factors determinative of

whether a negligence claim sounds in medical malpractice6 all were satisfied. The court thus granted the

motion to dismiss ‘‘without prejudice to the plaintiff

filing a separate action claiming a lack of informed

consent . . . .’’7

Nine days later, the plaintiff requested leave to amend

her complaint pursuant to Practice Book § 10-60, which

the court granted. The plaintiff thereafter filed an

amended complaint claiming that the defendant had

failed to obtain her informed consent before embarking

on a course of treatment for a complication that he

discovered during the postoperative examination. More

specifically, the plaintiff alleged in her February 8, 2016

revised complaint that the defendant’s actions during

the postoperative examination ‘‘violated his duty to provide the plaintiff with information that a reasonable

patient would have found material for making a decision

to embark upon the course of treatment performed by
[the defendant] in that: (a) [the defendant] failed to

inform the plaintiff as to the nature of the procedure

he performed because he did not give her any warning

or explanation of said procedure; (b) [the defendant]

failed to disclose any risks and hazards of the procedure; (c) [the defendant] failed to discuss any alternatives to the procedure he performed where, upon

information and belief, other procedures were available; and (d) [the defendant] failed to disclose any anticipated benefits of the procedure he performed.’’ In his

answer, the defendant admitted that, while conducting

the postoperative examination, he discovered that the

plaintiff’s labia were agglutinated. He further admitted

that ‘‘during the postoperative examination, [he] separated the skin of the labia by inserting a finger through

the agglutination.’’8 The defendant otherwise denied the

substance of the plaintiff’s lack of informed consent

claim.

On October 3, 2016, the plaintiff filed a certificate

of closed pleadings with the trial court, in which she

claimed a jury trial. The defendant filed a motion for

summary judgment on November 15, 2016, arguing that

‘‘[t]here is no triable issue of fact . . . because the

incident in question—the separation of agglutinated

labia during a postoperative examination of the plaintiff’s vagina—was not a ‘procedure’ requiring consent.

Even if it [was], the plaintiff consented to [the defendant] performing the vaginal exam, which necessarily

included separating her labia to observe the surgical

site.’’ That motion was accompanied by three exhibits,

including the defendant’s November 4, 2016 affidavit

and his August 17, 2016 responses to the interrogatories

of the plaintiff.

On January 23, 2017, the plaintiff filed an objection

to the motion for summary judgment, arguing that the

defendant, after discovering the complication during

the postoperative examination, ‘‘performed an invasive

procedure, which constitutes a course of treatment triggering a physician’s duty to inform.’’ The plaintiff noted

that the ‘‘cases that find a course of treatment that

triggers a physician’s duty to provide informed consent

share the fact that they involve the physician providing,

or attempting to provide, a therapeutic remedy to the

plaintiff. The mechanism of the treatment itself is not

important, but rather, the key element is that a medical

treatment was provided.’’ Because the defendant provided a medical treatment to remedy her labial agglutination, the plaintiff argued that he was obligated to

apprise her of ‘‘any material risks or alternatives’’ prior

to embarking on that course of treatment. In support

of her assertion that the defendant provided a medical

treatment, the plaintiff appended to her objection (1)

a copy of her answers to certain interrogatories, (2)

affidavits of the plaintiff and her mother, Janice Andersen, and (3) copies of five Superior Court decisions.
The defendant filed a reply to the plaintiff’s objection

on February 1, 2017, in which he maintained that the

plaintiff’s consent to the laser ablation procedure

included her consent to the postoperative examination,

as that examination was ‘‘not a separate course of therapy from the operation.’’ The defendant further submitted that ‘‘[t]he uncontroverted evidence shows that [he]

had to separate the plaintiff’s labia, which were agglutinated, in order to examine the surgical site.’’ A copy

of the plaintiff’s signed consent to the laser ablation

procedure was included as an exhibit to that reply.9

The court held a hearing on the motion for summary

judgment on February 6, 2017, at which the defendant’s

counsel contended that the May 14, 2014 postoperative

examination did not involve a procedure of any kind.

The court then inquired as to whether the plaintiff’s

counsel had ‘‘any authority that says that this type of

thing is a procedure’’; counsel responded that there was

‘‘nothing in Connecticut that says that this . . . is or

is not a course of treatment under the standard [set

forth] in Logan [v. Greenwich Hospital Assn., 191 Conn.

282, 292, 465 A.2d 294 (1983)].’’ The plaintiff’s counsel

nevertheless argued that, after discovering the labial

agglutination, the defendant failed to disclose to the

plaintiff the nature of the course of treatment he ultimately undertook to resolve that medical complication.

Counsel reminded the court that the affidavits submitted by the plaintiff and Andersen in opposition to the

motion for summary judgment both indicated that the

defendant told them that he performed the digital separation of the agglutination ‘‘to avoid having to go into the

operating room’’ to resolve that complication.10 Counsel

then rhetorically asked what the difference was

between a course of treatment in an operating room

and a course of treatment in an examination room,

before stating: ‘‘[T]he take home message is that the

form of treatment is not what’s important. It’s that the

doctor . . . and the patient embark on a course of

treatment, and the patient has to go into it with open

eyes, and that just didn’t happen here.’’ The plaintiff’s

counsel concluded his remarks by noting that the defendant ‘‘provided a treatment. [The plaintiff’s] labia [were]

fused together, and he separated [them]. There certainly

is some evidence that [separation] could have been

done in an operating room, and maybe it should have.

[The plaintiff] deserves to be able to explore that. And

certainly if [the defendant] can refute that, that’s fine,

but it’s an issue of fact to be decided in this case by

the trier of fact . . . .’’

When those arguments concluded, the court stated

that it ‘‘makes a finding that the activities of [the defendant], in examining the surgical site following a surgical

procedure which took place three weeks earlier, is not

a procedure which would give rise to the duty to inform

the plaintiff that a certain portion of the examination
of the surgical site might induce pain and [to conclude

otherwise] would extend the definition of a surgery

far afield. Under Logan [v. Greenwich Hospital Assn.,

supra, 191 Conn. 292], informed consent deals with a

procedure, an operation or surgery. This was not an

operation. It was not surgery. It was not a procedure

in and of itself. It was, rather, part of another examination for which the [defendant] received the written consent of the plaintiff. So, the motion for summary

judgment is granted.’’ Accordingly, the court rendered

judgment in favor of the defendant, and this appeal

followed.

I

We first consider the plaintiff’s challenge to the dismissal of her August 25, 2015 amended complaint

against the defendant. Although that complaint contained counts labeled battery and negligent infliction

of emotional distress, the trial court determined that,

despite the nomenclature employed by the plaintiff,

those counts both sounded in medical malpractice. As

a result, the court held that the plaintiff’s failure to

comply with the strictures of § 52-190a required dismissal of those counts due to lack of personal jurisdiction. That determination warrants closer scrutiny.

‘‘When a . . . court decides a . . . question raised

by a pretrial motion to dismiss, it must consider the

allegations of the complaint in their most favorable

light. . . . In this regard, a court must take the facts

to be those alleged in the complaint, including those

facts necessarily implied from the allegations, construing them in a manner most favorable to the pleader.’’

(Internal quotation marks omitted.) CitiMortgage, Inc.

v. Gaudiano, 142 Conn. App. 440, 441, 68 A.3d 101,

cert. denied, 310 Conn. 902, 75 A.3d 29 (2013); see also

Morgan v. Hartford Hospital, 301 Conn. 388, 395, 21

A.3d 451 (2011) (‘‘[i]n any consideration of the trial

court’s dismissal, we take the facts as alleged in the

complaint as true’’). As our Supreme Court has recognized, the failure to attach a proper written opinion

letter pursuant to § 52-190a to a complaint alleging

injury due to the medical negligence of a health care

provider ‘‘implicates personal jurisdiction’’ and mandates the dismissal of an action. Morgan v. Hartford

Hospital, supra, 402; see also General Statutes § 52-

190a (c) (failure to provide written opinion letter ‘‘shall

be grounds for the dismissal of the action’’). ‘‘Our review

of a trial court’s ruling on a motion to dismiss pursuant

to § 52-190a is plenary.’’ Torres v. Carrese, 149 Conn.

App. 596, 608, 90 A.3d 256, cert. denied, 312 Conn. 912,

93 A.3d 595 (2014).

The present case requires us to construe the nature

of the causes of action alleged in the plaintiff’s August

25, 2015 amended complaint to determine whether compliance with § 52-190a was necessary.11 ‘‘The interpretation of pleadings is always a question of law for the court
. . . . Our review of the trial court’s interpretation of

the pleadings therefore is plenary. . . . [W]e long have

eschewed the notion that pleadings should be read in

a hypertechnical manner. Rather, [we must] construe

pleadings broadly and realistically, rather than narrowly

and technically. . . . [A] pleading must be construed

reasonably, to contain all that it fairly means, but carries

with it the related proposition that it must not be contorted in such a way so as to strain the bounds of

rational comprehension. . . . Although essential allegations may not be supplied by conjecture or remote

implication . . . the complaint must be read in its

entirety in such a way as to give effect to the pleading

with reference to the general theory upon which it proceeded, and do substantial justice between the parties.’’

(Citations omitted; internal quotation marks omitted.)

Grenier v. Commissioner of Transportation, 306 Conn.

523, 536–37, 51 A.3d 367 (2012).

A

Battery

We begin with the first count of the August 25, 2015

amended complaint. It alleges in relevant part that, during the postoperative examination, the defendant ‘‘without any warning or notice or consent from the plaintiff,

intentionally, wantonly and/or forcefully inserted his

fingers through the plaintiff’s agglutinated labia and

into her vagina.’’ Count one further alleges that the

defendant’s conduct ‘‘constituted a battery in that his

actions were harmful and/or offensive to the plaintiff’’

and concludes by alleging a variety of injuries that the

plaintiff sustained as the ‘‘result of the harmful and/or

offensive conduct’’ of the defendant. In dismissing that

count, the court concluded that those allegations constituted a claim of medical negligence on the part of the

defendant, which necessitated compliance with § 52-

190a. We disagree.

As the plaintiff emphasized at the hearing on the

defendant’s motion to dismiss, and as the complaint

plainly indicates, her battery claim was predicated on

the lack of informed consent. Our Supreme Court has

‘‘long recognized the principle that [e]very human being

of adult years and sound mind has a right to determine

what shall be done with his own body; and a surgeon

who performs an operation without his patient’s consent, commits an assault, for which he is liable in damages.’’ (Internal quotation marks omitted.) Godwin v.

Danbury Eye Physicians & Surgeons, P.C., 254 Conn.

131, 136, 757 A.2d 516 (2000). In Logan v. Greenwich

Hospital Assn., supra, 191 Conn. 289, the Supreme

Court clarified that a patient can recover on a ‘‘theory

of battery as a basis for recovery’’ against a physician

in three limited circumstances: (1) when a physician

performs a procedure other than that for which consent

was granted; (2) when a physician performs a procedure

without obtaining any consent from the patient; and
(3) when a physician realizes that the patient does not

understand what the procedure entails. This court similarly has observed that ‘‘[o]ur courts have long adhered

to the principle that the theory of intentional assault

or battery is a basis for recovery against a physician

who performs surgery without consent.’’ Chouinard v.

Marjani, 21 Conn. App. 572, 579, 575 A.2d 238 (1990);

see also Canterbury v. Spence, 464 F.2d 772, 783 (D.C.

Cir.) (‘‘[i]t is the settled rule that therapy not authorized

by the patient may amount to . . . a common law battery’’), cert. denied, 409 U.S. 1064, 93 S. Ct. 560, 34 L.

Ed. 2d 518 (1972); Schmeltz v. Tracy, 119 Conn. 492,

495, 177 A. 520 (1935) (‘‘if the lack of consent was

established, the removal of the moles [by the physician]

was in itself a trespass and had the legal result of an

assault’’); Torres v. Carrese, supra, 149 Conn. App. 621

n.29 (‘‘[l]ack of informed consent is a cause of action

separate from a claim of medical negligence’’); Shadrick

v. Coker, 963 S.W.2d 726, 732 (Tenn. 1998) (‘‘the doctrine

of lack of informed consent is based upon the tort of

battery, not negligence, since the treatment or procedure was performed without having first obtained the

patient’s informed consent’’).

Count one contains no allegations of negligence on

the part of the defendant. It likewise does not allege

any deviation from the applicable standard of care.12

The strictures of § 52-190a, therefore, do not apply to

that cause of action. Section 52-190a was enacted ‘‘to

prevent the filing of frivolous medical malpractice

actions.’’ Morgan v. Hartford Hospital, supra, 301

Conn. 398. By its plain language, that statute applies to

actions ‘‘to recover damages resulting from personal

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

resulted from the negligence of a health care provider

. . . .’’ (Emphasis added.) General Statutes § 52-190a

(a). Significantly, our Supreme Court has held that the

written opinion letter requirement contained in § 52-

190a applies only to claims of medical negligence, which

is defined as ‘‘the failure to use that degree of care for

the protection of another that the ordinarily reasonably

careful and prudent [person] would use under like circumstances. . . . It signifies a want of care in the performance of an act, by one having no positive intention

to injure the person complaining of it.’’ (Internal quotation marks omitted.) Dias v. Grady, 292 Conn. 350, 354,

972 A.2d 715 (2009); see also Wilkins v. Connecticut

Childbirth & Women’s Center, 314 Conn. 709, 723 n.4,

104 A.3d 671 (2014) (‘‘§ 52-190a applies only to claims

of medical malpractice’’); Dias v. Grady, supra, 359

(‘‘the phrase ‘medical negligence,’ as used in § 52-190a

(a), means breach of the standard of care’’).

In Shortell v. Cavanagh, 300 Conn. 383, 385, 15 A.3d

1042 (2011), the Supreme Court expressly held that a

cause of action against a physician predicated on a lack

of informed consent is not subject to the written opinion
letter requirement of § 52-190a. The court explained

that ‘‘[u]nlike a medical malpractice claim, a claim for

lack of informed consent is determined by a lay standard of materiality, rather than an expert medical standard of care which guides the trier of fact in its

determination.’’ Id., 388; see also Logan v. Greenwich

Hospital Assn., supra, 191 Conn. 293 (adopting lay standard for informed consent claims). Accordingly, ‘‘in an

informed consent case, the plaintiff is not required to

present the testimony of a similar health care provider

regarding the standard of care at trial.’’ Shortell v. Cavanagh, supra, 389. The court thus reasoned that ‘‘[i]t

would not be logical that an opinion from a similar

health care provider would be required to commence

an action of this nature, when the testimony of a medical

expert would not be necessary at trial to prove the

standard of care and its breach.’’ Id., 388. To do so

would ‘‘frustrate the purpose of using the lay standard

for informed consent cases if we were to require a

plaintiff in such a case to comply with § 52-190a and

attach to the complaint a good faith certificate and

written opinion of a similar health care provider.’’

Id., 391.

In count one of her August 25, 2015 amended complaint, the plaintiff alleges that the defendant committed

a battery through his intentional conduct during the

postoperative examination by failing to obtain her

informed consent prior to digitally separating her agglutinated labia. ‘‘[M]edical standards of care are inapplicable’’ to such claims. Chouinard v. Marjani, supra, 21

Conn. App. 580; accord Sherwood v. Danbury Hospital,

278 Conn. 163, 180, 896 A.2d 777 (2006) (‘‘[u]nlike the

traditional action of [medical] negligence, a claim for

lack of informed consent focuses not on the level of

skill exercised in the performance of the procedure

itself but on the adequacy of the explanation given

by the physician in obtaining the patient’s consent’’

[internal quotation marks omitted]). As a result, the

written opinion letter requirement of § 52-190a does not

apply to informed consent claims. Shortell v. Cavanagh,

supra, 300 Conn. 385. The trial court, therefore, improperly dismissed count one due to the plaintiff’s failure

to append to her complaint a written opinion letter of

a similar health care provider.

B

Negligent Infliction of Emotional Distress

We next consider the second count of the plaintiff’s

August 25, 2015 amended complaint. Titled ‘‘Negligent

Infliction of Emotional Distress against Dr. Rutherford,’’

it reiterates the allegation that, during the postoperative

examination, the defendant ‘‘without any warning or

notice [to] the plaintiff, forcefully inserted his fingers

through the plaintiff’s agglutinated labia and into her

vagina.’’ The count further alleges that ‘‘[t]he conduct

of [the defendant] . . . created an unreasonable risk
of causing, and did in fact cause, the plaintiff emotional

distress. The plaintiff’s emotional distress was a foreseeable result of the conduct of [the defendant]. The

emotional distress . . . was severe enough that it

resulted in illness and may result in further illness or

bodily harm. The conduct [of the defendant] was the

cause of the plaintiff’s distress.’’

As the plaintiff noted in her memorandum of law

in opposition to the motion to dismiss, the negligent

infliction of emotional distress claim set forth in count

two ‘‘is not based upon or incident to a claim of medical

negligence, but rather, is based upon her claim of battery against the defendant in count one.’’ Although

count two does not explicitly reference the term ‘‘consent,’’ we are mindful that, in construing a particular

cause of action, ‘‘[t]he complaint must be read in its

entirety in such a way as to give effect to the pleading

with reference to the general theory upon which it proceeded . . . .’’ (Internal quotation marks omitted.)

Perry v. Valerio, 167 Conn. App. 734, 739–40, 143 A.3d

1202 (2016). Read broadly and realistically, count two

plainly alleges that the plaintiff suffered emotional distress occasioned by the alleged battery perpetrated by

the defendant, as detailed in the preceding count of the

complaint. Both counts one and two claim that the

defendant, without warning or notice to the plaintiff,

digitally separated her agglutinated labia. The factual

issues of whether warnings and notice were provided

to the plaintiff, in turn, both pertain to the issue of

informed consent. See, e.g., Duffy v. Flagg, 279 Conn.

682, 692, 905 A.2d 15 (2006) (physician must disclose,

inter alia, nature of procedure and risks and hazards of

procedure to patient ‘‘in order to obtain valid informed

consent’’); Janusauskas v. Fichman, 264 Conn. 796,

810, 826 A.2d 1066 (2003) (informed consent requires

physician to provide patient with information that reasonable patient would have found material for making

decision whether to embark upon contemplated course

of treatment). We therefore agree with the plaintiff that

both counts one and two advanced claims related to

her general theory that there was a lack of informed

consent to the defendant’s conduct during the postoperative examination.

Like count one, count two contains no allegations

that the defendant deviated from an applicable standard

of care. It thus cannot properly be construed under our

law as a claim of medical negligence. See Dias v. Grady,

supra, 292 Conn. 359 (‘‘the phrase ‘medical negligence,’

as used in § 52-190a (a), means breach of the standard of

care’’). As the trial judge aptly observed in an unrelated

case, ‘‘[i]n a medical negligence claim, a treating physician must be found to have breached a standard of care

applicable to the patient. . . . By contrast, a claim of

negligent infliction of emotional distress need not necessarily involve a breach of the applicable standard of

care by the treating physician. If the plaintiff’s fear
or distress was reasonable, in light of the defendant’s

conduct, and the defendant should have realized that

his conduct created an unreasonable risk of causing

distress, there is a basis for liability.’’ (Citations omitted.) Brown v. Cusick, Superior Court, judicial district

of Fairfield, Docket No. CV-16-6060283-S (October 2,

2017); see also Brown v. Njoku, 170 Conn. App. 329,

331, 154 A.3d 587 (affirming judgment awarding plaintiff

$35,000 in damages following court trial in action for,

inter alia, battery and negligent infliction of emotional

distress against physician who ‘‘inappropriately

touched [her] buttocks and breasts’’), cert. denied, 326

Conn. 901, 162 A.3d 724 (2017).

Because count two lacks any allegation that the

defendant departed from the applicable standard of

care, it cannot be deemed a claim of medical negligence

subject to the requirements of § 52-190a. Rather, it more

properly is construed as one derivative of the plaintiff’s

battery claim, for it concerns her general theory that the

defendant lacked informed consent to digitally separate

her agglutinated labia. For that reason, the court

improperly granted the defendant’s motion to dismiss

due to noncompliance with § 52-190a.

II

Normally, our determination that a motion to dismiss

was improperly granted would conclude our inquiry. In

the present case, however, the court granted the motion

to dismiss without prejudice to the plaintiff’s pursuit

of an action against the defendant for lack of informed

consent. After filing a notice of intent to appeal from

that dismissal; see footnote 7 of this opinion; the plaintiff then obtained permission from the court to file

an amended pleading, on which the court ultimately

rendered summary judgment in favor of the defendant.

The plaintiff now challenges the propriety of that determination.

On appeal, the plaintiff claims that the court improperly concluded, as a matter of law, that she could not

prevail in an informed consent action because the

defendant’s conduct in separating her agglutinated labia

was not a separate procedure or course of treatment

giving rise to a duty to obtain informed consent. She

contends that a substantial change in circumstances

occurred when the defendant discovered a complication during the postoperative examination that required

medical intervention, which in turn obligated the defendant to obtain her informed consent before proceeding

further. The parties agree that this issue is one of first

impression in Connecticut. Accordingly, we first review

the doctrine of informed consent to determine the

proper legal standard by which to measure the plaintiff’s

claim. We then apply that standard to the facts before

us, ever mindful of the procedural posture of this case.

A
The doctrine of informed consent traces its origins

to the common-law notion that an adult ‘‘has a right to

determine what shall be done with his own body; and

a surgeon who performs an operation without his

patient’s consent, commits an assault, for which he is

liable in damages.’’ (Internal quotation marks omitted.)

Schmeltz v. Tracy, supra, 119 Conn. 495–96, quoting

Schloendorff v. New York Hospital, 211 N.Y. 125, 129–

30, 105 N.E. 92 (1914) (Cardozo, J.), overruled on other

grounds by Bing v. Thunig, 2 N.Y.2d 656, 143 N.E.2d

3, 163 N.Y.S.2d 3 (1957); see also Union Pacific Railway

Co. v. Botsford, 141 U.S. 250, 251, 11 S. Ct. 1000, 35 L.

Ed. 734 (1891) (‘‘[n]o right is held more sacred, or is

more carefully guarded, by the common law, than the

right of every individual to the possession and control

of his own person, free from all restraint or interference

of others, unless by clear and unquestionable authority

of law’’); Abigail Alliance for Better Access to Developmental Drugs v. von Eschenbach, 495 F.3d 695, 717

(D.C. Cir. 2007) (en banc) (courts have long ‘‘recognized

with universal acquiescence that the free citizen’s first

and greatest right, which underlies all others, is the

right to the inviolability of his person’’ [internal quotation marks omitted]), cert. denied, 552 U.S. 1159, 128

S. Ct. 1069, 169 L. Ed. 2d 839 (2008). As the United

States Supreme Court has recognized, the ‘‘notion of

bodily integrity [is] embodied in the requirement that

informed consent is generally required for medical

treatment.’’ Cruzan v. Director, Missouri Dept. of

Health, 497 U.S. 261, 269, 110 S. Ct. 2841, 111 L. Ed. 2d

224 (1990).

The doctrine of informed consent attempts to balance

the autonomy of the patient with the professional obligations of the physician.13 In the seminal decision of

Canterbury v. Spence, supra, 464 F.2d 780, the United

States Court of Appeals for the District of Columbia

Circuit explained that ‘‘[t]rue consent to what happens

to one’s self is the informed exercise of a choice, and

that entails an opportunity to evaluate knowledgeably

the options available and the risks attendant upon each.

The average patient has little or no understanding of

the medical arts, and ordinarily has only his physician

to whom he can look for enlightenment with which to

reach an intelligent decision. From these almost axiomatic considerations springs the need, and in turn the

requirement, of a reasonable divulgence by physician

to patient to make such a decision possible.’’ (Footnotes

omitted.) The court continued: ‘‘A physician is under a

duty to treat his patient skillfully but proficiency in

diagnosis and therapy is not the full measure of his

responsibility. . . . [T]he physician is under an obligation to communicate specific information to the patient

when the exigencies of reasonable care call for it. . . .

The context in which the duty of risk-disclosure arises

is invariably the occasion for decision as to whether a

particular treatment procedure is to be undertaken. To
the physician, whose training enables a self-satisfying

evaluation, the answer may seem clear, but it is the

prerogative of the patient, not the physician, to determine for himself the direction in which his interests

seem to lie. To enable the patient to chart his course

understandably, some familiarity with the therapeutic

alternatives and their hazards becomes essential.’’

(Footnotes omitted.) Id., 781. For that reason, the court

held that ‘‘the physician’s overall obligation to the

patient [includes the] duty of reasonable disclosure of

the choices with respect to proposed therapy and the

dangers inherently and potentially involved.’’ Id., 782.

Accordingly, a physician ‘‘must seek and secure his

patient’s consent before commencing an operation or

other course of treatment.’’14 Id.

The doctrine of informed consent ‘‘is embedded

firmly in American jurisprudence, now forming a recognizable basis for physician liability in the [fifty] [s]tates

and the District of Columbia.’’ J. Merz, ‘‘On a DecisionMaking Paradigm of Medical Informed Consent,’’ 14 J.

Legal Med. 231, 231 (1993). In Connecticut, ‘‘[i]nformed

consent requires a physician to provide the patient with

the information which a reasonable patient would have

found material for making a decision whether to embark

upon a contemplated course of therapy.’’ (Internal quotation marks omitted.) Janusauskas v. Fichman, supra,

264 Conn. 810; accord Canterbury v. Spence, supra, 464

F.2d 787 (‘‘[a] risk is . . . material when a reasonable

person . . . would be likely to attach significance to

the risk . . . in deciding whether or not to forego the

proposed therapy’’ [internal quotation marks omitted]).

As our Supreme Court held in Logan v. Greenwich

Hospital Assn., supra, 191 Conn. 292, ‘‘the physician’s

disclosure should include: (1) the nature of the 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.)

At the same time, our Supreme Court has emphasized

that the doctrine of informed consent ‘‘is a limited one’’

that requires ‘‘something less than a full disclosure of

all information which may have some bearing, however

remote, upon the patient’s decision.’’15 (Internal quotation marks omitted.) Duffy v. Flagg, supra, 279 Conn.

692–93; see also Munn v. Hotchkiss School, 326 Conn.

540, 605, 165 A.3d 1167 (2017) (Espinosa, J., concurring) (‘‘a physician need not disclose to patients every

remote risk potentially associated with a medical procedure but only those deemed sufficiently likely as to be

material’’); Pedersen v. Vahidy, 209 Conn. 510, 523, 552

A.2d 419 (1989) (disclosure generally unnecessary when

‘‘the likelihood of such injury is remote’’); Precourt v.

Frederick, 395 Mass. 689, 694–95, 481 N.E.2d 1144

(1985) (‘‘The materiality of information about a potential injury is a function not only of the severity of the

injury, but also of the likelihood that it will occur.
Regardless of the severity of a potential injury, if the

probability that the injury will occur is so small as to

be practically nonexistent, then the possibility of that

injury occurring cannot be considered a material factor

in a rational assessment of whether to engage in the

activity that exposes one to the potential injury.’’). Furthermore, ‘‘there is no need to disclose risks that are

likely to be known by the average patient or that are

in fact known to the patient usually because of a past

experience with the procedure in question.’’ (Internal

quotation marks omitted.) Logan v. Greenwich Hospital Assn., supra, 191 Conn. 292. A physician nonetheless

is obligated ‘‘to advise a patient of feasible alternatives’’;

id., 287; even when ‘‘some involve more hazard than

others.’’ Id., 295.

Under Connecticut law, application of the doctrine

of informed consent is not confined to operations and

surgical procedures. Rather, it concerns the physician’s

‘‘duty to provide patients with material information concerning a proposed course of treatment.’’ Downs v.

Trias, 306 Conn. 81, 89, 49 A.3d 180 (2012); see also

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

292–93 (physician obligated to provide patient with

information ‘‘material for making a decision whether

to embark upon a contemplated course of therapy’’).

A contemplated course of therapy includes—but is not

limited to—a particular procedure, operation, or surgery. See Torres v. Carrese, supra, 149 Conn. App. 622.16

For example, in Curran v. Kroll, 303 Conn. 845, 859–60,

37 A.3d 700 (2012), the patient sought medical treatment

for menopausal issues. Our Supreme Court held that

the failure of the defendant physician to advise the

patient of ‘‘any symptoms and risks associated’’ with

the birth control medication that the physician had prescribed gave rise to ‘‘a cause of action for lack of

informed consent.’’ Id., 858; see also Johnson v. Rheumatology Associates, P.C., Superior Court, judicial

district of Hartford, Docket No. CV-12-6031500-S

(December 29, 2014) (59 Conn. L. Rptr. 549, 550)

(‘‘[o]bviously treatment of a condition by the prescribing of medication is no less a form of treatment than

surgery for a condition’’). Our Supreme Court likewise

has held that the nonsurgical procedure of obtaining a

blood transfusion constituted a course of therapy and,

thus, properly could give rise to a cause of action for

lack of informed consent. Sherwood v. Danbury Hospital, supra, 278 Conn. 180–82. Accordingly, the doctrine

of informed consent applies to a course of medical

treatment undertaken by a patient in consultation with

a medical practitioner.

1

In the present case, the parties do not dispute that

the defendant obtained the informed consent of the

plaintiff to perform the laser ablation of her vulva on

April 25, 2014. Indeed, her consent was memorialized on
the signed consent form. The plaintiff further concedes

that she consented, as part of that course of treatment,

to the May 14, 2014 postoperative examination.17 The

plaintiff nonetheless argues that a substantial and material change in circumstances occurred when the defendant discovered the labial agglutination, which

obligated the defendant to obtain her informed consent

before embarking on a course of treatment therefor.18

That claim presents an issue of first impression in this

state. For his part, the defendant in his appellate brief

acknowledges that a ‘‘new informed consent’’ may be

required when ‘‘a substantial and material change in

circumstances’’ arises during a course of treatment.

The ‘‘determination of the proper legal standard in

any given case is a question of law subject to our plenary

review.’’ (Internal quotation marks omitted.) Mirjavadi

v. Vakilzadeh, 310 Conn. 176, 183, 74 A.3d 1278 (2013).

In light of the rationale underlying the doctrine of

informed consent, as well as persuasive out-of-state

authority, we agree with the parties that, when a substantial and material change in circumstances occurs

during the course of medical treatment, a duty may

arise on the part of the physician to secure the consent

of the patient before proceeding further.

The doctrine of informed consent is rooted in the

recognition of a patient’s right to bodily autonomy. See

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

288 (‘‘[w]e have approved the principle that [e]very

human being of adult years and sound mind has a right

to determine what shall be done with his own body’’

[internal quotation marks omitted]). The doctrine further is premised on the precept that ‘‘[t]rue consent to

what happens to one’s self is the informed exercise of

a choice, and that entails an opportunity to evaluate

knowledgeably the options available and the risks attendant upon each.’’ Canterbury v. Spence, supra, 464 F.2d

780; see also Logan v. Greenwich Hospital Assn., supra,

295 (physician obligated to advise patient of ‘‘all viable

alternatives . . . even though some involve more hazard than others’’). Accordingly, a physician is required

to provide the patient with that information which a

reasonable person would deem material in deciding

whether to embark upon a particular course of treatment.19 Sherwood v. Danbury Hospital, supra, 278

Conn. 180.

Significantly, our decisions on the doctrine of

informed consent do not limit that duty to the actual

date that a particular procedure is performed or medical

service is rendered. Rather, Connecticut law consistently has delineated that duty as one that applies to a

‘‘course of treatment’’; see, e.g., Downs v. Trias, supra,

306 Conn. 89; or a ‘‘course of therapy’’ undertaken by

a patient. See Logan v. Greenwich Hospital Assn.,

supra, 191 Conn. 293. While a physician’s treatment of

a patient sometimes begins and ends in a matter of
hours or days, a course of treatment often transpires

over a much longer period. See, e.g., Curran v. Kroll,

supra, 303 Conn. 848 (medical treatment of patient

occurred over span of ‘‘approximately one month

before her death’’ [internal quotation marks omitted]);

Tetreault v. Eslick, 271 Conn. 466, 469, 857 A.2d 888

(2004) (physician ‘‘planned to continue [the] course of

treatment for a period of at least six months’’).

As the Supreme Court of Wisconsin has observed,

a patient’s consent to treatment is not ‘‘categorically

immutable’’ once it has been given to a physician.

Schreiber v. Physicians Ins. Co. of Wisconsin, 223 Wis.

2d 417, 429, 588 N.W.2d 26, cert. denied, 528 U.S. 869, 120

S. Ct. 169, 145 L. Ed. 2d 143 (1999). When a substantial

change of circumstances occurs during the course of

medical treatment, it ‘‘results in an alteration of the

universe of options a patient has and alters the agreed

upon course of navigation through that universe.’’20 Id.,

432. Although a patient previously may have provided

informed consent to a particular course of treatment,

the Supreme Court of Wisconsin ‘‘decline[d] to view

the informed consent discussion as a solitary and blanketing event, a point on a timeline after which such

discussions are no longer needed because they are ‘covered’ by some articulable occurrence in the past. Rather,

a substantial change in circumstances . . . requires a

new informed consent discussion. . . . To conclude

otherwise would allow a solitary informed consent discussion to immunize a physician for any and all subsequent treatment of that patient.’’ (Citation omitted.) Id.,

433–34. The court, thus, concluded that, when a substantial change in circumstances arises, the physician

has ‘‘a duty to conduct another informed consent discussion and [provide the patient with] her treatment

options and . . . the opportunity to choose.’’21 Id., 434.

The Supreme Court of Colorado likewise has recognized that, when a ‘‘previously undisclosed, and substantial risk arises,’’ a physician may have a ‘‘duty [to

obtain informed consent that is] based on changed circumstances.’’ Gorab v. Zook, 943 P.2d 423, 430 (Colo.

1997) (en banc).

We find that authority highly persuasive, particularly

in light of the underpinnings of the doctrine of informed

consent. When consent is provided by a patient in a

given case, its scope necessarily is limited to the course

of treatment outlined by the medical practitioner, and

encompasses only those risks, hazards, alternatives,

and anticipated benefits then disclosed. For that reason,

when a truly substantial change arises during the course

of treatment that meets the standard of materiality

under our law,22 we agree that the medical practitioner

generally is obligated to obtain consent from the patient

before proceeding further. To conclude otherwise

would contravene the fundamental purpose of the doctrine of informed consent.
2

At the same time, the circumstances in which substantial changes arise do not always lend themselves

to such a dialogue between patient and physician. For

that reason, a physician’s duty to secure informed consent is not an absolute one, but rather is contingent on

the particular context in which it arises. To accommodate the exigencies inherent in the practice of medicine,

courts have crafted exceptions to the physician’s general duty that excuse the failure to obtain such consent

in certain circumstances.23 See generally A. Meisel, ‘‘The

‘Exceptions’ to the Informed Consent Doctrine: Striking

a Balance Between Competing Values in Medical Decisionmaking,’’ 1979 Wis. L. Rev. 413 (1979). As the

Supreme Court of Iowa recently observed, ‘‘a number

of situations may be established by the defendant physician as a defense to an informed consent action, constituting exceptions to the duty to disclo[se]. These

include: (1) Situations in which complete and candid

disclosure might have a detrimental effect on the physical or psychological well-being of the patient;24 (2) Situations in which a patient is incapable of giving consent

by reason of mental disability or infancy; (3) Situations

in which an emergency makes it impractical to obtain

consent; (4) Situations in which the risk is either known

to the patient or is so obvious as to justify a presumption

on the part of the physician that the patient has knowledge of the risk; (5) Situations in which the procedure

itself is simple and the danger remote and commonly

appreciated to be remote; (6) Situations in which the

physician does not know of an otherwise material risk

and should not have been aware of it in the exercise

of ordinary care.’’25 (Footnote added; internal quotation

marks omitted.) Andersen v. Khanna, 913 N.W.2d 526,

537 n.4 (Iowa 2018); see also Holt v. Nelson, 11 Wn.

App. 230, 240–41, 523 P.2d 211 (1974) (enumerating

various exceptions).

The emergency exception has been recognized by

courts across the country. See Shine v. Vega, 429 Mass.

456, 464, 709 N.E.2d 58 (1999) (‘‘[t]he emergency exception to the informed consent doctrine has been widely

recognized’’); Miller v. Rhode Island Hospital, 625 A.2d

778, 784 (R.I. 1993) (‘‘[e]qually as well established as

the informed consent doctrine is the exception to it for

emergencies’’). As the court in Canterbury explained,

the emergency exception ‘‘comes into play when the

patient is unconscious or otherwise incapable of consenting, and harm from a failure to treat is imminent

and outweighs any harm threatened by the proposed

treatment. When a genuine emergency of that sort

arises, it is settled that the impracticality of conferring

with the patient dispenses with need for it.’’ Canterbury

v. Spence, supra, 464 F.2d 788–89. Put simply, ‘‘a physician is not required to obtain the patient’s consent in an

emergency situation where the patient is in immediate
danger.’’ Wheeldon v. Madison, 374 N.W.2d 367, 375

(S.D. 1985). Although our appellate courts have not had

occasion to circumscribe the precise parameters of the

emergency exception, it applies under our state regulations to medical treatment performed in hospitals

throughout Connecticut. See Regs., Conn. State Agencies § 19-13-D3 (d) (8);26 cf. In re Cassandra C., 316

Conn. 476, 496–97, 112 A.3d 158 (2015) (‘‘[A]t common

law, minors generally were considered to lack the legal

capacity to give valid consent to medical treatment or

services, and consequently a parent, guardian, or other

legally authorized person generally was required to provide the requisite consent. In the absence of an emergency, a physician who provided medical care to a

minor without such parental or other legally authorized

consent could be sued for battery.’’ [Emphasis added;

internal quotation marks omitted.]); Ranciato v.

Schwartz, Superior Court, judicial district of New

Haven, Docket No. CV-11-6023107-S (November 26,

2014) (‘‘in the absence of an emergency a healthcare

provider must offer pertinent information to his or her

patients’’ [internal quotation marks omitted]).

Courts also have recognized that a physician’s alleged

failure to secure informed consent properly is excused

by the existence of a valid waiver on the part of the

patient. See, e.g., Arato v. Avedon, 5 Cal. 4th 1172, 1189,

858 P.2d 598, 23 Cal. Rptr. 2d 131 (1993) (en banc) (‘‘a

patient may validly waive the right to be informed’’);

Spar v. Cha, 907 N.E.2d 974, 983 (Ind. 2009) (‘‘[m]any

jurisdictions recognize either by judicial ruling or statute that a patient may waive her right to informed consent’’); cf. Utah Code Ann. § 78B-3-406 (3) (2012).27 For

that reason, ‘‘[w]hen a patient consents to surgery,

acknowledges he or she understands complications

may arise, and authorizes the doctor to remedy these

complications, it follows that the patient has consented

to treatment of those complications whether they occur

in the operating room or afterward in the recovery

room.’’ Hageny v. Bodensteiner, 316 Wis. 2d 240, 250–

51, 762 N.W.2d 452 (App. 2008); see also Cobbs v. Grant,

8 Cal. 3d 229, 245, 502 P.2d 1, 104 Cal. Rptr. 505 (1972)

(en banc) (‘‘a medical doctor need not make disclosure

of risks when the patient requests that he not be so

informed’’); Holt v. Nelson, supra, 11 Wn. App. 241 (‘‘[a]

physician need not disclose the hazards of treatment

when the patient has requested she not be told about

the dangers’’). The patient’s ability to relieve a physician

of the duty to obtain informed consent during the course

of medical treatment is consistent with, and in furtherance of, the right to bodily autonomy. As one commentator aptly noted, ‘‘[a] properly obtained waiver is

completely in keeping with the values sought to be

promoted by informed consent. The patient remains

the ultimate decisionmaker, but the content of his decision is shifted from the decisional level to the metadecisional level—from the equivalent of ‘I want this
treatment . . .’ to . . . ‘I don’t want to decide; you

make the decision as to what should be done.’ Waiver

thus permits the patient to be treated without participating in the medical decisionmaking process, or at least

without fully participating.’’ (Footnote omitted.) A.

Meisel, supra, 1979 Wis. L. Rev. 459.

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

Conn. 292, our Supreme Court acknowledged an additional exception, noting that ‘‘there is no need to disclose risks that are likely to be known by the average

patient or that are in fact known to the patient usually

because of a past experience with the procedure in

question.’’ (Internal quotation marks omitted.) See also

Ranciato v. Schwartz, supra, Superior Court, Docket

No. CV-11-6023107-S (plaintiff could not prevail on

informed consent claim when ‘‘she knew of [the] risk

due to past experience’’); Crain v. Allison, 443 A.2d

558, 562 (D.C. 1982) (‘‘a physician need not advise concerning risks of which the patient already has actual

knowledge’’); Spar v. Cha, supra, 907 N.E.2d 984 (physician need not advise of risks known to patient because

of past experience with procedure); Sard v. Hardy, 281

Md. 432, 445, 379 A.2d 1014 (1977) (‘‘disclosure is not

required where the risk is . . . known to the patient’’);

Scaria v. St. Paul Fire & Marine Ins. Co., 68 Wis. 2d

1, 12–13, 227 N.W.2d 647 (1975) (physician ‘‘should not

be required to discuss risks that are apparent or known

to the patient’’). The rationale for that exception is that

the patient who is aware of the risks that accompany

a particular procedure or course of treatment already

is an informed patient.

Application of the doctrine of informed consent,

therefore, involves more than simply an examination of

the communications, or lack thereof, between physician

and patient. It also requires consideration of the context

in which the physician’s duty arose. That context is

crucial to the determination of whether an exception

to that duty is implicated. Moreover, in an action predicated on an alleged lack of informed consent, ‘‘[t]he

burden of proving an exception to [the] duty’’ rests with

the physician. Scott v. Bradford, 606 P.2d 554, 558 (Okla.

1979); see also Canterbury v. Spence, supra, 464 F.2d

791 (‘‘[t]he burden of going forward with evidence pertaining to a privilege not to disclose . . . rests properly

upon the physician’’ [footnote omitted]); Cobbs v.

Grant, supra, 8 Cal. 3d 245 (physician bears ‘‘the burden

of [proving] justification for failure to disclose’’); Shine

v. Vega, supra, 429 Mass. 462 (‘‘the [defendant physician

and hospital] had the burden of proving that an exception relieved them of tort liability’’).

3

Accordingly, we conclude that, when a substantial

and material alteration of the risks, anticipated benefits,

or alternatives previously disclosed to the patient

occurs during a course of medical treatment, the doc-
trine of informed consent generally requires an additional informed consent discussion between physician

and patient. When, however, the context of such alteration implicates an exception to the duty to disclose,

the law relieves the physician of that obligation. With

that analytical framework in mind, we return our attention to the present case.

B

In her revised complaint, the plaintiff alleges a cause

of action for lack of informed consent. Distilled to its

essence, her claim is that, upon discovering a complication that required medical intervention, the defendant

unilaterally proceeded with a course of treatment without obtaining her informed consent. The court subsequently rendered summary judgment in favor of the

defendant, concluding that the defendant’s conduct in

separating the plaintiff’s agglutinated labia was not a

separate procedure or course of treatment giving rise

to a duty to obtain informed consent, but rather ‘‘was

part of another examination for which the [defendant]

received the written consent of the plaintiff.’’ On appeal,

the plaintiff challenges the propriety of that determination.

Summary judgment is appropriate when ‘‘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.’’ Practice Book § 17-49; Miller v. United Technologies Corp., 233 Conn. 732, 744–45, 660 A.2d 810 (1995).

A material fact is one ‘‘that will make a difference in the

result of the case.’’ (Internal quotation marks omitted.)

Straw Pond Associates, LLC v. Fitzpatrick, Mariano &

Santos, P.C., 167 Conn. App. 691, 728, 145 A.3d 292,

cert. denied, 323 Conn. 930, 150 A.3d 231 (2016). ‘‘In

seeking summary judgment, it is the movant who has

the burden of showing the nonexistence of any issue

of fact. The courts are in entire agreement that the

moving party for summary judgment has the burden of

showing the absence of any genuine issue as to all the

material facts, which, under applicable principles of

substantive law, entitle him to a judgment as a matter

of law. The courts hold the movant to a strict standard.

To satisfy his burden the movant must make a showing

that it is quite clear what the truth is, and that excludes

any real doubt as to the existence of any genuine issue

of material fact. . . . As the burden of proof is on the

movant, the evidence must be viewed in the light most

favorable to the opponent. . . . When documents submitted in support of a motion for summary judgment

fail to establish that there is no genuine issue of material

fact, the nonmoving party has no obligation to submit

documents establishing the existence of such an issue.

. . . Once the moving party has met its burden, however, the opposing party must present evidence that

demonstrates the existence of some disputed factual
issue. . . . It is not enough, however, for the opposing

party merely to assert the existence of such a disputed

issue. Mere assertions of fact . . . are insufficient to

establish the existence of a material fact and, therefore,

cannot refute evidence properly presented to the court

under Practice Book § [17-45]. . . . Our review of the

trial court’s decision to grant [a] motion for summary

judgment is plenary.’’ (Internal quotation marks omitted.) Todd v. Nationwide Mutual Ins. Co., 121 Conn.

App. 597, 601–602, 999 A.2d 761, cert. denied, 297 Conn.

929, 998 A.2d 1196 (2010).

The following additional facts, as gleaned from the

pleadings, affidavits, and other proof submitted when

viewed in a light most favorable to the plaintiff; Martinelli v. Fusi, 290 Conn. 347, 350, 963 A.2d 640 (2009);

are relevant to the plaintiff’s claim. We begin by noting

what is not in dispute. Years prior to the medical treatment at issue in this appeal, the defendant performed

a laser ablation of the plaintiff’s vulva to remove precancerous growths. Prior to performing that procedure on

August 25, 2011, the defendant discussed the procedure

with the plaintiff and she signed a consent form so

indicating. After the procedure concluded, the plaintiff

was provided lidocaine gel as a preventative measure

to avoid labial agglutination.28 The defendant at that

time cautioned the plaintiff that ‘‘she should quit smoking or else she would end up needing the procedure

again.’’ Weeks later, the defendant conducted a postoperative examination of the surgical site to ensure that

it was healing properly. No complications were discovered during that examination.

When precancerous growths later returned, the plaintiff again consulted with the defendant. The defendant

discussed the laser ablation treatment with the plaintiff,

who then signed a standardized consent form. That

form stated in relevant part that the defendant ‘‘has

explained to me in a way that I understand: (a) the

nature and purpose of the procedure(s); (b) the potential benefits and risks of the procedure(s) including

bleeding, infection, accidental injury of other body

parts, failure to permanently improve my condition or,

death, as well as the potential risks and benefits of the

medications that may be administered to me as part of

the procedure; and (c) the alternative(s) to the procedure(s) and their potential risks and benefits, including

the option of not having the procedure.’’ The consent

form also authorized the defendant ‘‘to do whatever may

be necessary if there is a complication or unforeseen

condition during my procedure.’’

The defendant performed a second laser ablation to

remove precancerous growths on the plaintiff’s vulva

on April 25, 2014. When that procedure concluded, the

plaintiff again was provided with lidocaine gel and was

advised to schedule a postoperative examination ‘‘so

that [the defendant] could examine the surgical site and
make sure that it was healing properly.’’ The defendant

conducted that examination approximately three weeks

later, on May 14, 2014. Four individuals were present at

that examination: the plaintiff, the defendant, Andersen,

and an unidentified nurse. It is undisputed that the

plaintiff consented to the postoperative examination.

See footnote 17 of this opinion.

After arriving at the Yale University Gynecologic Center, the plaintiff undressed and placed her legs in stirrups. The defendant began his examination with a visual

inspection of the plaintiff and then informed her that

‘‘everything looked fine.’’ The parties disagree as to

precisely what happened next.

In her operative complaint, the plaintiff alleged that

the defendant discovered the labial agglutination ‘‘during’’ the postoperative examination; the defendant

admitted the truth of that allegation in his answer. The

plaintiff further alleged that the defendant at that time

embarked on a course of treatment for that complication without first obtaining her informed consent. More

specifically, the plaintiff alleged that the defendant

‘‘forcefully inserted his fingers through [her] agglutinated labia’’ without informing her of ‘‘the nature of

the procedure,’’ its ‘‘risks and hazards,’’ its ‘‘anticipated

benefits,’’ and ‘‘any alternatives [when] other procedures were available . . . .’’

In his November 4, 2016 affidavit, the defendant

described what transpired during the postoperative

examination as follows: ‘‘I informed [the plaintiff] that

I was going to examine her vagina. . . . In order to

observe the surgical site, I had to separate [her] labia.

As I did so, she yelped in pain. At that moment, I realized

that her labia had become agglutinated. I apologized

for causing her pain, and I continued with the examination. . . . Agglutination, which is the partial fusing of

skin, can occur after laser ablation surgery. It occurs

at the surgical site, which in [the plaintiff’s] case, was

on the interior of her labia. Because of that location,

there was no way for me to know if [her] labia were

agglutinated before trying to separate them to examine

the surgical site.’’ He continued: ‘‘If labia are agglutinated two weeks after laser surgery, they must be separated. Generally, the agglutination at that point is mild,

and it can be done in a split-second using a finger.

This is the least intrusive and most effective way of

separating agglutinated labia.’’ In his August 17, 2016

response to the plaintiff’s first set of interrogatories,

the defendant stated that although ‘‘[m]ore severely

agglutinated labia may require a surgical procedure,’’

the plaintiff’s labia were not agglutinated ‘‘to the degree

that . . . require[d] treatment or procedure.’’ The

defendant also acknowledged that, ‘‘[a]fter discovering

that [the plaintiff’s] labia were agglutinated during the

examination, I discussed with her that her labia had

agglutinated as a result of her laser ablation surgery.
. . . I informed her that she had agglutinated labia that

required separation. I told her I was sorry that I hurt

her by separating her agglutinated labia.’’ As he did in

his affidavit, the defendant stated in his response to

interrogatories that he ‘‘did not know that [the plaintiff’s] labia were agglutinated until [he] separated them

to perform [the] postoperative examination.’’

In opposing the motion for summary judgment, the

plaintiff provided a different account of those events. In

her sworn affidavit, she stated: ‘‘[W]hen the defendant

entered the room, he said that he was going to take a

look at me, and further stated that everything looked

fine. . . . Then, without warning, [he] forcefully

inserted his fingers into my vagina, separating an agglutination . . . of my labia, which caused me severe pain.

. . . I cried out in pain as a result of the defendant

inserting his fingers through the agglutination, and [he]

expressed his concern that I may pass out as a result.

. . . The defendant stated that he performed this procedure so that I would not have to go to the operating

room for surgery.’’ The plaintiff further stated that the

defendant provided ‘‘no warning or notice to [her] . . .

at any time before’’ he remedied the labial agglutination.

In her affidavit, Andersen likewise averred that the

defendant ‘‘expressed concern that the plaintiff may

pass out as a result of the separation of her agglutinated

labia’’ and then ‘‘stated that he performed [the] procedure so that the plaintiff would not have to go to the

operating room for surgery.’’

Although the defendant claims that he ‘‘did not know

that [the plaintiff’s] labia were agglutinated until [he]

separated them,’’ the affidavits of the plaintiff and Andersen, read in the light most favorable to the plaintiff as

the nonmoving party; see Brooks v. Powers, 328 Conn.

256, 259, 178 A.3d 366 (2018); suggest otherwise. Those

affidavits allege that the defendant, after separating her

agglutinated labia, informed them that he ‘‘performed

[the] procedure so that the plaintiff would not have

to go to the operating room for surgery.’’29 (Emphasis

added.) Viewed in a manner most favorable to the plaintiff, the finder of fact could construe that purported

statement, in light of the defendant’s admission that

‘‘severely agglutinated labia may require a surgical procedure’’ and the significant pain experienced by the

plaintiff,30 as an admission that the defendant was aware

of two viable alternative treatments at the time that

he discovered the medical complication. See Logan v.

Greenwich Hospital Assn., supra, 191 Conn. 295 (‘‘all

viable alternatives [must] be disclosed even though

some involve more hazard than others’’).31 If the finder

of fact were to credit those affirmations, it reasonably

could conclude that the defendant discovered the complication during his initial examination of the plaintiff

and then, without her informed consent, made a

unilateral decision to pursue a particular course of treatment—digital separation—when another viable alter-
native existed.32

In light of the foregoing, we conclude that a genuine

issue of material fact exists as to whether the discovery

of the medical complication during the postoperative

examination constituted a substantial and material

change in circumstances, such that the defendant was

obligated to disclose the risks, anticipated benefits, and

viable alternatives to the plaintiff before embarking on

a course of treatment therefor.

That determination does not end our inquiry, as a

physician’s failure to obtain informed consent may be

excused in certain circumstances, such as when the

patient has authorized the physician to remedy complications that arise during a course of medical treatment.

See, e.g., Hageny v. Bodensteiner, supra, 316 Wis. 2d

250–51. In rendering summary judgment, the court concluded that the materials submitted in connection with

the motion for summary judgment demonstrated that

the defendant’s conduct in remedying the labial agglutination was treatment ‘‘for which [the defendant]

received the written consent of the plaintiff.’’ We

disagree.

It is undisputed that, in the spring of 2014, the plaintiff, in consultation with the defendant, embarked on

a course of treatment for precancerous growths on her

vulva. That course of treatment included both the laser

ablation procedure that the defendant performed on

April 25, 2014, and the postoperative examination on

May 14, 2014.

The plaintiff’s informed consent is memorialized on

the consent form, a copy of which was submitted as

an exhibit to the defendant’s reply to the plaintiff’s

objection to the motion for summary judgment. That

written consent came on a standardized form titled

‘‘Yale-New Haven Hospital Consent for Operation or

Special Procedure.’’ The form provides in relevant part:

‘‘After discussing other options, including no treatment,

with [the defendant], I give [the defendant] permission

to perform the following surgery, procedure(s) or treatment . . . CO2 Laser Ablation of Vulva.’’ The consent

form further stated: ‘‘I give permission to [the defendant] to do whatever may be necessary if there is a

complication or unforeseen condition during my procedure.’’ (Emphasis added.)

Undoubtedly, that signed consent vested the defendant with discretion to deal with any complications

or unforeseen conditions that arose during the laser

ablation procedure performed on April 25, 2014. That

consent form nevertheless is silent as to postoperative

care. It confirms only that the plaintiff had discussed

the CO2

laser ablation procedure and ‘‘other options’’

with the defendant. The consent form contains no indication that the parties discussed the possibility of labial

agglutination or various medical treatments for that
complication. Indeed, in his November 4, 2016 affidavit,

the defendant attested that, as a matter of practice,

he does ‘‘not warn patients that their labia might be

agglutinated because most do not have agglutinated

labia.’’

Furthermore, paragraph 3 of the standardized consent form begins by stating: ‘‘My responsible practitioner has explained to me in a way that I understand:

(a) the nature and purpose of the procedure(s); (b)

the potential benefits and risks of the procedure(s)

including bleeding, infection, accidental injury of other

body parts, failure to permanently improve my condition or, death, as well as the potential risks and benefits

of the medications that may be administered to me as

part of the procedure; and (c) the alternative(s) to the

procedure(s) and their potential risks and benefits,

including the option of not having the procedure.’’ It

then states: ‘‘I understand that some possible complications of the procedure(s) include’’ followed by several

blank lines. That part of the consent form was left blank,

with no possible complications identified.

Read literally, and in the light most favorable to the

plaintiff as the nonmoving party, the consent form

authorized the defendant ‘‘to do whatever may be necessary’’ only with respect to unforeseen complications

that arose during the April 25, 2014 laser ablation procedure. The defendant has provided no evidence, such as

affidavit testimony indicating otherwise. Accordingly,

we conclude that a genuine issue of material fact exists

as to whether the plaintiff had authorized the defendant

to remedy unforeseen complications that arose not during the April 25, 2014 laser ablation procedure, but

during the postoperative examination weeks later.

III

In sum, we conclude that the court improperly

granted the defendant’s motion to dismiss the battery

and negligent infliction of emotional distress counts of

the August 25, 2015 amended complaint due to noncompliance with § 52-190a. We further conclude that the

court improperly rendered summary judgment in favor

of the defendant on the plaintiff’s February 8, 2016

revised complaint, as genuine issues of material fact

exist regarding the defendant’s discovery of a medical

complication during the postoperative examination.

The matter, therefore, must be remanded to the trial

court for further proceedings.

The judgment is reversed and the case is remanded

for further proceedings in accordance with this opinion.

In this opinion the other judges concurred.

1 The operative complaints in the present case also named Yale University

as a defendant and alleged negligent supervision on its part. The trial court

subsequently granted Yale University’s motion to dismiss that claim, and

the plaintiff has not appealed from that judgment. Furthermore, Yale University is not a party to this appeal. We therefore refer to Thomas J. Rutherford,

M.D., as the defendant in this opinion.
2 Ablation is the ‘‘[r]emoval of a body part or the destruction of its function,

as by a surgical procedure, morbid process, or noxious substance.’’ Stedman’s Medical Dictionary (27th Ed. 2000) p. 3.

3 Agglutination is the ‘‘[a]dhesion of the surfaces of a wound.’’ Stedman’s

Medical Dictionary (27th Ed. 2000) p. 35; see also Webster’s Third New

International Dictionary (2002) p. 41 (defining ‘‘agglutinate’’ as ‘‘joined with

or as if with glue’’).

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

or apportionment complaint shall be filed to recover damages resulting from

personal injury or wrongful death occurring on or after October 1, 1987,

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

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

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

inquiry as permitted by the circumstances to determine that there are

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

treatment of the claimant. The complaint, initial pleading or apportionment

complaint shall contain a certificate of the attorney or party filing the action

or apportionment complaint that such reasonable inquiry gave rise to a good

faith belief that grounds exist for an action against each named defendant

or for an apportionment complaint against each named apportionment defendant. To show the existence of such good faith, the claimant or the claimant’s

attorney, and any apportionment complainant or the apportionment complainant’s attorney, shall obtain a written and signed opinion of a similar

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

care provider shall be selected pursuant to the provisions of said section,

that there appears to be evidence of medical negligence and includes a

detailed basis for the formation of such opinion. . . .

‘‘(c) The failure to obtain and file the written opinion required by subsection (a) of this section shall be grounds for the dismissal of the action.’’

5 The plaintiff’s counsel stated that the plaintiff ‘‘consented to [the defendant] examining her vagina. . . . [W]hat she didn’t consent to was his jamming his fingers into her vagina forcibly to separate something, and she

[had] no knowledge of that procedure, she didn’t know that was going to

happen, and she . . . didn’t consent to that. . . . [S]he will testify that had

she known that [her labia were agglutinated], she would have asked for

more clarification of what the process was going to entail, whether she

could get some sort of pain medication. She had no idea—she consented

only to being examined, not to having the [defendant], without any warning,

jam his fingers into her vagina. . . . [T]hat’s why we [pleaded] it as a battery.

There’s no consent to what he did to her.’’

6

‘‘The classification of a negligence claim as either medical malpractice

or ordinary negligence requires a court to review closely the circumstances

under which the alleged negligence occurred. [P]rofessional negligence or

malpractice . . . [is] defined as the failure of one rendering professional

services to exercise that degree of skill and learning commonly applied under

all the circumstances in the community by the average prudent reputable

member of the profession with the result of injury, loss, or damage to the

recipient of those services. . . . Furthermore, malpractice presupposes

some improper conduct in the treatment or operative skill [or] . . . the

failure to exercise requisite medical skill . . . . From those definitions, we

conclude that the relevant considerations in determining whether a claim

sounds in medical malpractice are whether (1) the defendants are sued in

their capacities as medical professionals, (2) the alleged negligence is of a

specialized medical nature that arises out of the medical professional-patient

relationship, and (3) the alleged negligence is substantially related to medical

diagnosis or treatment and involved the exercise of medical judgment.’’

(Emphasis in original; internal quotation marks omitted.) Boone v. William

W. Backus Hospital, 272 Conn. 551, 562–63, 864 A.2d 1 (2005).

7 On November 9, 2015, the plaintiff filed a notice of intent to appeal the

ruling of the court granting the motion to dismiss, in which the plaintiff

stated that she ‘‘seeks to defer the taking of an appeal until a final judgment

that disposes of this case for all purposes and as to all parties is rendered.’’

The defendant did not object to that notice and has raised no claim with

respect thereto in this appeal.

8 To be clear, the plaintiff in the present case does not allege that labial

agglutination was a material risk of the laser ablation procedure that the

defendant had a duty to disclose prior to performing that procedure, nor

has she furnished any affidavits or other proof that would support such a

contention. The only evidence in the record before us regarding the risk

of labial agglutination is the defendant’s uncontroverted statement in his
November 4, 2016 affidavit indicating that labial agglutination is a rare

complication of the laser ablation procedure. See Logan v. Greenwich Hospital Assn., 191 Conn. 282, 291, 465 A.2d 294 (1983) (duty of informed consent

does not require disclosure of ‘‘all information which may have some bearing,

however remote, upon the patient’s decision’’); see also Munn v. Hotchkiss

School, 326 Conn. 540, 605, 165 A.3d 1167 (2017) (Espinosa, J., concurring)

(‘‘a physician need not disclose to patients every remote risk potentially

associated with a medical procedure but only those deemed sufficiently

likely as to be material’’); Pedersen v. Vahidy, 209 Conn. 510, 523, 552 A.2d

419 (1989) (disclosure generally unnecessary when ‘‘the likelihood of such

injury is remote’’). For that reason, the defendant emphasizes in his appellate

brief that the plaintiff ‘‘has never alleged, let alone offered evidence, that

agglutination is a ‘known material risk’ of CO2

laser ablation of the vulva

such that [the defendant] had a specific duty to warn her about it before

she consented to the original procedure. . . . [I]t has never been the plaintiff’s claim that [the defendant] failed to obtain her informed consent to the

laser ablation procedure.’’ On appeal, the plaintiff does not disagree with

that statement. Rather, her claim is altogether a different one—namely,

that the defendant, after discovering the labial agglutination during the

postoperative examination, embarked on a course of treatment to remedy

that complication without her consent.

9

In her principal appellate brief, the plaintiff briefly notes her objection

to the inclusion of her signed consent form as an exhibit to the defendant’s

reply brief. Nonetheless, she raised no objection to that exhibit before the

trial court, either in written form or during the February 6, 2017 hearing on

the motion for summary judgment, rendering that evidentiary objection

unpreserved.

10 At oral argument on the motion for summary judgment, the defendant’s

counsel conceded that ‘‘going into an operating room, of course,’’ constitutes

‘‘a separate course of therapy’’ for which a medical practitioner must obtain

‘‘a separate consent’’ from the patient.

11 We emphasize that the question before us in part I of this opinion is a

narrow one regarding the applicability of § 52-190a, and not whether the

plaintiff’s battery and negligent infliction of emotional distress counts, as

pleaded, could survive a motion to strike or a motion for summary judgment.

12 For that reason, the three part test for ascertaining whether a negligence

claim properly is classified as one sounding in medical negligence; see

footnote 6 of this opinion; is inapposite. The defendant’s reliance on Votre

v. County Obstetrics & Gynecology Group, P.C., 113 Conn. App. 569, 585,

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

misplaced. Unlike the present case, the plaintiff’s complaint in Votre

‘‘included factual allegations that implicated deviation from professional

medical standards,’’ a distinction that this court expressly deemed to be

significant. Id., 574. The court in Votre further emphasized that ‘‘[a]lthough

the plaintiff here denominated the claims in her complaint as sounding in

ordinary tort and breach of contract, the factual allegations underlying the

claims require proof of the defendants’ deviation from the applicable standard of care of a health care provider . . . .’’ Id., 580. That is not the case

when a cause of action is predicated on a lack of informed consent. Shortell

v. Cavanagh, 300 Conn. 383, 390–91, 15 A.3d 1042 (2011).

13 As one court succinctly put it, ‘‘[t]he doctor’s primary duty is to do what

is best for the patient.’’ Watson v. Clutts, 262 N.C. 153, 159, 136 S.E.2d 617

(1964). For a discussion of the tension that arises when principles of patient

autonomy and physician beneficence collide, see P. Walter, ‘‘The Doctrine

of Informed Consent: To Inform or Not to Inform,’’ 71 St. John’s L. Rev.

543 (1997).

14 In Logan v. Greenwich Hospital Assn., supra, 191 Conn. 290–93, the

seminal Connecticut decision on the doctrine of informed consent, our

Supreme Court expressly adopted the reasoning of Canterbury in holding

that a lay standard of disclosure governs informed consent claims in Connecticut. See also Downs v. Trias, 306 Conn. 81, 88–89 n.5, 49 A.3d 180 (2012).

15 As the Supreme Court of Idaho has observed, ‘‘it would be impossible

for a healthcare provider to fully apprise his or her patients of every aspect

of each procedure. The human body is amazingly complex, and to fully

comprehend even the most mundane treatment one must have an advanced

understanding of anatomy and physiology. Without some limit on the amount

of information that a healthcare provider is obligated to discuss, our healthcare infrastructure would grind to a halt.’’ Peckham v. Idaho State Board

of Dentistry, 154 Idaho 846, 853, 303 P.3d 205 (2013).

16 In Torres, this court noted that ‘‘[o]ur case law regarding the issue of
a physician’s obligation to obtain a patient’s informed consent focuses on

the decision to embark upon a contemplated course of therapy, such as a

procedure, operation, or surgery.’’ (Emphasis added; internal quotation

marks omitted.) Torres v. Carrese, supra, 149 Conn. App. 622. In Torres,

the court concluded that a physician who provided prenatal care to a patient,

but was not the surgeon who subsequently performed a cesarean section,

had no duty to apprise her of the risks involved in that surgical procedure.

As the court explained, ‘‘[u]nder our law . . . a physician’s obligation to

obtain informed consent turns on the performance of a procedure and not

the intent to perform a procedure.’’ (Emphasis in original.) Id., 623. ‘‘Because

the procedure was to be performed in the future and [the physician who

provided prenatal care] was never in the position to be the operating surgeon,

[that physician] had no obligation to obtain informed consent.’’ Id., 623 n.30.

By contrast, the defendant in the present case performed both the laser

ablation procedure on April 25, 2014, and the postoperative examination of

the plaintiff on May 14, 2014.

17 At the October 19, 2015 hearing on the defendant’s motion to dismiss,

the plaintiff’s counsel acknowledged that the plaintiff had consented to the

postoperative examination. The plaintiff’s counsel likewise confirmed at

oral argument before this court that the plaintiff was ‘‘not contesting [that

she consented to] the postoperative examination.’’

18 We reiterate that the plaintiff has not claimed, at any stage of the

proceedings, that labial agglutination was a likely and, hence, material risk

that the defendant had a duty to disclose prior to performing the laser

ablation procedure. See footnote 8 of this opinion. Rather, her claim is

that, when that remote risk subsequently materialized, the defendant was

obligated to apprise her of all viable treatment alternatives and their attendant risks and benefits before proceeding further.

19 That duty obligates a physician to disclose ‘‘(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.) Logan v. Greenwich Hospital Assn., supra, 191

Conn. 292.

20 As in Connecticut, the duty of informed consent under Wisconsin law

is measured by a materiality standard, for which ‘‘the touchstone [is whether

a] reasonable person in the position of the patient would want to know’’

of a given risk, benefit, or alternative to a particular course of treatment.

Schreiber v. Physicians Ins. Co. of Wisconsin, supra, 223 Wis. 2d 427; accord

Janusauskas v. Fichman, supra, 264 Conn. 810 (informed consent requires

physician to provide patient with information that reasonable patient would

have found material for making decision whether to embark upon contemplated course of treatment). In Schreiber, the court noted that a substantial

change in circumstances involves a material alteration of the risks, benefits,

or alternatives that accompany a particular treatment. Schreiber v. Physicians Ins. Co. of Wisconsin, supra, 428–32.

21 That conclusion comports with the precept that ‘‘[t]he context in which

the [physician’s] duty [to disclose] arises is invariably the occasion for

decision as to whether a particular treatment procedure is to be undertaken.’’

Canterbury v. Spence, supra, 464 F.2d 781.

22 ‘‘Materiality may be said to be the significance a reasonable person, in

what the physician knows or should know is his patient’s position, would

attach to the disclosed risk or risks in deciding whether to submit or not

to submit to surgery or treatment.’’ (Internal quotation marks omitted.)

Logan v. Greenwich Hospital Assn., supra, 191 Conn. 291. Under Connecticut law, a physician is obligated ‘‘to provide the patient with that information

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

whether to embark upon a contemplated course of therapy.’’ Id., 292–93;

see also Duffy v. Flagg, supra, 279 Conn. 691; Janusauskas v. Fichman,

supra, 264 Conn. 810; DeGennaro v. Tandon, 89 Conn. App. 183, 190, 873

A.2d 191, cert. denied, 274 Conn. 914, 879 A.2d 892 (2005).

23 Several of the exceptions that are well established in other jurisdictions

have not been formally recognized under Connecticut law. Their development in those jurisdictions, therefore, is illuminating. See Grovenburg v.

Rustle Meadow Associates, LLC, 174 Conn. App. 18, 57, 165 A.3d 193 (2017).

24 ‘‘[T]he so-called ‘therapeutic exception’ ’’; Arato v. Avedon, 5 Cal. 4th

1172, 1190, 858 P.2d 598, 23 Cal. Rptr. 2d 131 (1993) (en banc); permits ‘‘a

physician to withhold information where disclosure might jeopardize a

course of therapy.’’ Logan v. Greenwich Hospital Assn., supra, 191 Conn.

292; see also Scott v. Bradford, 606 P.2d 554, 558 (Okla. 1979) (‘‘where full

disclosure would be detrimental to a patient’s total care and best interests
a physician may withhold such disclosure, for example, where disclosure

would alarm an emotionally upset or apprehensive patient’’ [footnote

omitted]).

25 Some jurisdictions have enacted statutes codifying such exceptions.

See, e.g., Alaska Stat. § 09.55.556 (b) (2012); Del. Code Ann. tit. 18, § 6852

(b) (1974); N.Y. Pub. Health Law § 2805-d (4) (2012); Utah Code Ann. § 78B3-406 (3) (2012); Wis. Stat. § 448.30 (Supp. 2017); Vt. Stat. Ann. tit. 12,

§ 1909 (2017).

26 Section 19-13-D3 (d) (8) provides: ‘‘Informed consent. It shall be the

responsibility of each hospital to assure that the bylaws or rules and regulations of the medical staff include the requirement that, except in emergency

situations, the responsible physician shall obtain proper informed consent

as a prerequisite to any procedure or treatment for which it is appropriate

and provide evidence of consent by a form signed by the patient or a written

statement signed by the physician on the patient’s hospital record. The

extent of information to be supplied by the physician to the patient shall

include the specific procedure or treatment, or both, the reasonably foreseeable risks, and reasonable alternatives for care or treatment.’’ (Emphasis

added.)

27 Utah’s informed consent statute specifically addresses the issue of

patient waiver. It provides in relevant part: ‘‘It shall be a defense to any

malpractice action against a health care provider based upon alleged failure

to obtain informed consent if . . . the patient stated, prior to receiving the

health care complained of, that he would accept the health care involved

regardless of the risk; or that he did not want to be informed of the matters

to which he would be entitled to be informed . . . or . . . the patient or

his representative executed a written consent which sets forth the nature

and purpose of the intended health care and which contains a declaration

that the patient accepts the risk of substantial and serious harm, if any,

in hopes of obtaining desired beneficial results of health care and which

acknowledges that health care providers involved have explained his condition and the proposed health care in a satisfactory manner and that all

questions asked about the health care and its attendant risks have been

answered in a manner satisfactory to the patient or his representative.’’

Utah Code Ann. § 78B-3-406 (3) (2012).

28 Although it is undisputed that the plaintiff was provided lidocaine gel,

there is no indication in the record that the defendant ever discussed the

risk of labial agglutination with the plaintiff. As the defendant acknowledged

in his November 4, 2016 affidavit: ‘‘I do not warn patients that their labia

might be agglutinated because most do not have agglutinated labia.’’ The

plaintiff in this case does not claim that labial agglutination was a material

risk that the defendant had a duty to disclose prior to performing the laser

ablation procedure. See footnote 8 of this opinion.

29 When used as a conjunction, the word ‘‘so’’ means ‘‘in order that’’ and

‘‘for that reason.’’ See Merriam-Webster’s Collegiate Dictionary (11th Ed.

2003) p. 1182.

30 It is undisputed that the plaintiff cried out in pain when the defendant

digitally separated her agglutinated labia. The affidavits of Andersen and

the plaintiff further aver that the defendant at that time expressed his

concern that the plaintiff was going to lose consciousness.

31 We note that the defendant, in his affidavit, stated that ‘‘[i]f labia are

agglutinated two weeks after laser surgery, they must be separated.’’ While

the defendant may simply have been articulating a professional medical

opinion, his statement nonetheless ignores the well established right of a

patient to refuse medical treatment, even when the patient’s life is in jeopardy. See Cruzan v. Director, Missouri Dept. of Health, supra, 497 U.S.

278 (competent individuals have protected liberty interest under fourteenth

amendment to United States constitution to refuse unwanted medical treatment); Stamford Hospital v. Vega, 236 Conn. 646, 666, 674 A.2d 821 (1996)

(‘‘[i]f the common law right to refuse medical treatment, based on the

doctrine of informed consent, is entitled to respect, that respect must be

accorded when the consequences are likely to be the most serious—in

matters of life and death’’). The plaintiff has argued, before both the trial

court and now this court on appeal, that she had a right ‘‘to refuse this

treatment even if it was considered necessary.’’

32 We reiterate that the defendant, in his response to interrogatories,

averred that he did not discover the agglutination until after he had finished

separating the plaintiff’s agglutinated labia. If that statement is credited, his

explanation to the plaintiff that he digitally separated the agglutination ‘‘so

that [she] would not have to go to the operating room for surgery’’ becomes
illogical, as a surgical option necessarily would have been impossible at

that point.