Dentist, Injuries, Negligence and Informed Consent: Connecticut Supreme Court

David Shortell

v.

Normam Cavanagh et al

Argued: January 11, 20011

Decided: March 15, 2011

Facts: The Plaintiff, David Shortell, had an oral procedure performed by the defendant, Norman Cavanagh, a dentist, in December 2006 which he later sustained serious injuries from after the dentist's failure to obtain the patient's informed consent for the procedure. The plaintiff filed a complaint alleging the defendant committed negligence when failing to inform him of the significant risks involving the implant procedure and they were "significant enough that a reasonable person in the plaintiff's position would have withheld consent to the procedure." Since the plaintiff did not attached to the complaint either a good faith certificate or the written opinion of a similar health care provider, the defendant filed a motion to dismiss the complaint due to the plaintiff's failure to attached documents mandated by [§ 52-190a].'' The plaintiff objected to the dismissal because ''failure to obtain informed consent cause of action does not require a written opinion from a similar health care provider to be attached to the complaint and it does not require a certificate of good faith.'' The trial court granted the motion to dismiss on the ground that ''[g]iving the information about risk is a necessary part of the appropriate operating procedure and . . . failure to give it and proceeding to operate constitutes malpractice.'' The plaintiff again filed this appeal.

Issue:  Is § 52-190a relevant to the plaintiff's case of lack of informed consent?

Decision: The trial jury judgment is reversed and the case is remanded for further proceedings.

Reasons: The court had agreed with the plaintiff that General Statute Section 52-190a does not apply to the appeal filed.

Basing their judgment on precedent of Dias v. Grady, supra, 292 Conn. 359, ''we conclud[ed] that the phrase medical negligence, as used in § 52-190a (a), means breach of the standard of care and was not intended to encompass all of the elements of a cause of action for negligence.'' (Internal quotation marks omitted.) Thus, if an expert is needed to establish the standard of care, a fortiori, an opinion letter is required from a similar health care provider. It is likewise both consistent and logical to hold that if an expert is not required to establish the medical standard of care, an opinion letter is not required under § 52-190a. This is especially true in an action for lack of informed consent where our case law is so well established that the lay standard of materiality of risk is applicable."

Dissenting opinion: None