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Informed Consent; Using Other Facility; Cesarean Hysterectomy


In the fourth or fifth month of her pregnancy, a woman began to experience pain, bleeding, and cramping. Her obstetrician-gynecologist (OB/GYN) diagnosed her with placenta previa, a condition in which the placenta is implanted in the lower segment of the uterus, thereby partially or completely obstructing the internal bone of the cervix. The woman and OB/GYN agreed that she would undergo a cesarean section when the baby was due. Within about a month of this diagnosis, the woman presented at the hospital with signs of vaginal bleeding and was seen by another OB/GYN for the first time. The woman signed herself out of the hospital against medical advice.

 

About a month prior to her due date, the woman went into labor. She presented at the hospital, thirty-five weeks pregnant with vaginal bleeding and uterine contractions. She was seen by the same OB/GYN she had seen the last time she was at the hospital as he was covering for her usual OB/GYN who was on vacation. Sometime after the woman was admitted, the OB/GYN diagnosed her with placenta previa and delivered her child by cesarean section.

 

After performing the cesarean section, the OB/GYN discovered that the woman in fact had placenta percreta, a condition in which the placenta can grow through the uterus and into the bladder. The placenta had invaded the posterior wall of the bladder causing substantial bleeding. Because of the severe bleeding, the OB/GYN performed a hysterectomy and removed the part of the bladder wall that had been invaded by the placenta. The OB/GYN called for an intraoperative urology evaluation. The urology team arrived and reconstructed the woman’s bladder.

 

The woman sued the two board certified OB/GYNs for medical negligence. With her complaint the woman submitted a written opinion letter of a medical expert, a board certified urologist, who had reviewed the OB/GYNs' care and opined that the OB/GYNs breached the standard of care by causing the original injury to her urinary tract and that her original OB/GYN breached the prevailing standard of care by failing to maintain adequate medical records. Subsequently, the woman amended her complaint and attached an additional opinion letter written by a board certified OB/GYN.

 

The OB/GYNs moved to dismiss the complaint on the ground that the original opinion letter was not obtained from a similar health care provider as required, which was a defect that could not be cured through amending the complaint. The Fairfield Superior Court granted the OB/GYNs' motions to dismiss the medical negligence claims. The court did not dismiss the woman's purported claims of lack of informed consent, combined within the allegations of negligence, reasoning that the requirement of a written opinion letter from a similar health care provider does not apply to a claim of lack of informed consent.

 

The OB/GYNs moved for summary judgment as to the woman's claims of lack of informed consent on the ground that the woman did not plead lack of informed consent, and, alternatively, to the extent that a lack of informed consent claim was pleaded, no triable issue existed. The court granted the OB/GYNs' motions for summary judgment as to the alleged claims of lack of informed consent.

 

The Appellate Court of Connecticut affirmed. The court held that, because the author of the opinion letter submitted by the woman was neither trained and experienced in obstetrics-gynecology nor board certified in obstetrics-gynecology, the letter did not comply with the statute, and accordingly, the trial court properly dismissed the woman's professional negligence claims. The trial court did not err in concluding that the woman’s primary OB/GYN had no duty to obtain her informed consent. The trial court did not err in concluding that the operating OB/GYN had no obligation to disclose to the woman that the cesarean hysterectomy could perhaps be more safely performed at another health care facility.

 

A complaint for medical negligence must be accompanied by a written and signed opinion of a similar health care provider. For health care providers who are board certified or who hold themselves out as specialists, such as the OB/GYNs who treated the woman in this case, the statute defines “similar health care provider” as one who: (1) “[i]s trained and experienced in the same specialty”; and (2) “is certified by the appropriate American board in the same specialty.” There is a statutory exception to the “similar health care provider” requirement when the defendant health care provider is providing treatment or a diagnosis for a condition which is not within his or her specialty. In such a case, a specialist trained in the treatment or diagnosis for that condition shall be considered a similar health care provider. The woman argued that this case falls within the statutory exception because her complaint alleged that the OB/GYNs had left the area of obstetrics and were diagnosing and treating her urological system, something outside their specialty.

 

The court found that the woman’s argument failed for two reasons. First, in the opinion letter, the board certified urologist never suggested that the OB/GYNs were diagnosing or treating the woman for a condition not within their specialty. Second, the woman's bladder and ureter were damaged when the OB/GYN was performing a hysterectomy, an obstetric-gynecological procedure, because of the woman's condition of placenta percreta, an obstetric condition. The court reasoned that, because this case did not fall within the statutory exception, the original written opinion letter must satisfy the requirements. The language of the statutes dictated that a similar health care provider with respect to the woman's health care providers in this case was one who was trained and experienced in obstetrics-gynecology and was board certified in obstetrics-gynecology. Because the author of the opinion letter submitted by the woman was neither, the letter did not comply with the statute, and accordingly, the trial court properly dismissed the woman's professional negligence claims.

 

The trial court did not err in concluding that the woman’s primary OB/GYN had no duty to obtain her informed consent. A physician's obligation to obtain informed consent turns on the performance of a procedure and not the intent to perform a procedure. Although the woman’s primary OB/GYN may have anticipated performing a cesarean section sometime in the future, the operation was not imminent and there was no immediate reason for specific informed consent. Unlike performing a cesarean section, providing prenatal care is not a procedure, operation, or surgery. The woman’s primary OB/GYN did not have an obligation to provide the woman, or any subsequent substitute treating physician, with information regarding the increased risks she might face when undergoing a cesarean section due to the condition of placenta previa.

 

The trial court did not err in concluding that the operating OB/GYN had no obligation to disclose to the woman that the cesarean hysterectomy could perhaps be more safely performed at another health care facility. A physician has no obligation to inform his or her patient that a procedure may be better performed at another health care facility. The gravamen of informed consent is a discussion of the material risks of the procedure itself. The procedure itself does not necessarily extend to the place where the procedure is to be performed. In the circumstances of this case, the alleged fact that the facility was not a tertiary facility was not, as a matter of law, a material risk. There was no genuine issue of material fact that the woman would have undergone a cesarean hysterectomy in any event. The record indicates that the cesarean hysterectomy was necessary to save her life. The woman did not allege, or present any evidence showing, that the operating OB/GYN was not competent to perform the cesarean hysterectomy.

 

The Appellate Court of Connecticut affirmed the trial court’s dismissal of the woman’s professional negligence claims and grant of summary judgment of her informed consent claims.

 

See: Torres v. Carrese, 2014 WL 1464334 (Conn.App., April 22, 2014) (not designated for publication).

 

See also Medical Law Perspectives, December 2012 Report: When Urgency Leads to Errors: Liability for Emergency Care 

 

 

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