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Even Though Claim Sounded in Medical Negligence Expert Testimony Unnecessary When Patient Qualified To Testify After Doctor Failed To Inform of Risk of Ovarian Cancer


A woman with a family history of breast cancer underwent a bilateral mastectomy to reduce her cancer risk.  Over twenty years later she was diagnosed with a uterine fibroid condition caused by painful, but ordinarily noncancerous, tumors. The woman elected to undergo a partial hysterectomy which entailed removing her uterus, but not her cervix or ovaries.

 

The defendant obstetrician and gynecologist consulted with her prior to performing the procedure. The obstetrician and gynecologist explained that, the woman’s family history of breast cancer, without more, did not indicate that she was at an increased risk of ovarian cancer. At that time, the plaintiff did not have ovarian cancer. The doctor told her that her ovaries were healthy, that there was no reason to remove them, and that removal would result in negative side effects. The obstetrician and gynecologist subsequently performed the partial hysterectomy without complications.

 

Approximately one year after the surgery, the woman was diagnosed with late stage, terminal, ovarian cancer, which had spread to her abdomen. Had the obstetrician and gynecologist prophylactically removed the woman’s ovaries at the time he performed the partial hysterectomy, she would not have developed the cancer.

 

The woman sued the obstetrician and gynecologist for negligence resulting in her developing ovarian cancer. After a jury trial, the trial court entered a judgment in the amount of $4 million in favor of the plaintiff. The obstetrician and gynecologist appealed arguing that, because the plaintiff's complaint turned on the defendant's failure to advise her that she should have her ovaries removed due to a family history of cancer, the trial court improperly construed the plaintiff's complaint as arising out of medical negligence rather than a failure to obtain informed consent. The obstetrician and gynecologist also argued that, due to this improper construction of the claim, the court improperly admitted certain expert testimony and improperly instructed the jury.

 

The Supreme Court of Connecticut affirmed the trial court’s decision. The court concluded that the claim was properly construed as a medical malpractice claim rather than a claim for lack of informed consent because a physician may, in failing to provide a patient with information, incur liability for falling short of the professional standard of care. The same underlying facts may give rise to both a medical malpractice claim and a claim for lack of informed consent. If a doctor fails to inform a patient of a certain fact, the claim would sound in medical negligence if the doctor was held liable for failing to know the fact in the first place. The claim would be properly construed as lack of informed consent if the doctor was held liable for failing to convey the fact to the patient for her consideration in making medical treatment decisions.

 

The court reasoned that this claim sounded in medical negligence because it alleged not only that the defendant had specifically failed to inform her of her risk of ovarian cancer, but also that he failed, more generally, to properly treat her and to provide her with proper gynecological care. Therefore, the trial court properly admitted testimony concerning the professional medical standard of care and properly instructed the jury.

 

The trial court allowed the plaintiff patient to testify to establish causation concerning the professional medical standard of care. The Supreme Court of Connecticut held that although ordinarily a claim of medical negligence cannot be proven without expert testimony because issues of medical treatment are generally beyond the common knowledge of laypersons, this rule does not apply to matters of common experience. In this case, because she had previously undergone a bilateral mastectomy to reduce her breast cancer risk, the patient was qualified to testify that she would have had her ovaries removed had she been informed of her risk of developing ovarian cancer. Her well-informed and nonspeculative lay testimony was sufficient.

 

See: Downs v. Trias,306 Conn. 81, 2012 WL 3288159 (Conn., August 21, 2012) (not designated for publication).

 

 

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