Logan v. Greenwich Hospital Ass'n

465 A.2d 294, 191 Conn. 282, 38 A.L.R. 4th 879, 1983 Conn. LEXIS 598
CourtSupreme Court of Connecticut
DecidedSeptember 6, 1983
Docket10969
StatusPublished
Cited by172 cases

This text of 465 A.2d 294 (Logan v. Greenwich Hospital Ass'n) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Logan v. Greenwich Hospital Ass'n, 465 A.2d 294, 191 Conn. 282, 38 A.L.R. 4th 879, 1983 Conn. LEXIS 598 (Colo. 1983).

Opinion

Shea, J.

In this medical malpractice action the trial court directed a verdict for the defendant hospital and for one of the three doctors whom the plaintiff had named as defendants. The jury returned a verdict for the other two defendant doctors. The plaintiff has appealed, claiming error in the direction of the verdicts and in the charge to the jury. The principal issue raised involves the propriety of the court’s instruction that the duty of a physician to advise a patient of possible alternatives in obtaining an informed consent to a contemplated operative procedure does not require the disclosure of a more hazardous alternative. We find error in this instruction and order a new trial limited to the absence of informed consent theory of the complaint. We affirm, however, the direction of a verdict for two of the defendants as well as the verdict reached by the jury for one of the defendants whose request for a directed verdict was denied.

The evidence was that the defendant Marc E. New-berg, a specialist in internal medicine, first met the plaintiff in July, 1971, following the birth of her twin children at the Greenwich Hospital. After her discharge from the hospital on August 4,1971, the plaintiff continued to consult Newberg because of continued pain, swelling and a decreased range of motion. She was hospitalized for ten days in February, 1972, because of pain in her neck, shoulders, arms, and legs which interfered with her sleeping.

In August, 1972, Newberg advised the plaintiff that she had systemic lupus erythematosis (lupus). In October, 1972, he advised her to undergo a kidney biopsy to determine the extent of lupus involvement in her [285]*285kidneys. He explained that the biopsy was a simple procedure, which would be carried out under a local anesthetic, that she might suffer some bleeding and discomfort, but that she would be able to leave the hospital in a day or two if there were no complications. Newberg described the operation in a general way as consisting of the insertion of a surgical needle into her back in order to obtain a specimen of kidney tissue. He also indicated that Peter Bogdan, a urologist, would perform the operation and would describe the details more fully. The only complication which Newberg mentioned was the possibility of considerable pain and bleeding for which surgery might be necessary. He did not discuss the alternative of an open biopsy, which would require an incision and would be conducted under general anesthesia, because he did not consider that procedure advisable. He never mentioned the danger that the plaintiffs gall bladder might be punctured during the operation, an injury which did in fact occur.

As the attending physician, Newberg admitted the plaintiff to the Greenwich Hospital on October 31,1972. On the evening of November 2, 1972, the defendant Peter Bogdan visited the plaintiff in her room at the hospital to discuss the operation to be performed the next morning. He told her that there might be some bleeding and that there was a risk of hemorrhaging and of losing a kidney. The alternative of an open biopsy procedure under a general anesthetic was not mentioned, although Bogdan had performed such operations previously and conceded that it was a more controlled procedure in terms of visualizing the kidney. He did not consider this procedure to be a viable alternative for the plaintiff, however, because there is a greater risk of complications, especially those involving general anesthesia. After Bogdan had departed, the [286]*286plaintiff, in accordance with the rules of the hospital, signed a written form consenting to the surgical procedure which had been described.

The next morning the plaintiff was taken to a room in the x-ray department of the hospital where Bogdan and a student nurse were in attendance. The defendant Forbes Delany, the director of radiology at the hospital, was also present for the purpose of operating the fluoroscopic equipment which was necessary to provide a view of the kidney and the needle while the biopsy was being performed. Bogdan explained the procedure, advising the plaintiff that she would lie prone upon an x-ray table with a pillow under her upper abdomen and that he would give her instructions throughout the procedure.

The fluoroscopic equipment used consisted of a tube underneath the table on which the patient would lie. X-rays would pass through the table and the body of the patient onto a fluorescent screen augmented by a television system which improved the clarity of the image. Because the screen must be positioned above and rather close to the portion of the body being visualized there is insufficient space to allow for manipulation of the biopsy needle and the screen can be used only intermittently. The fluoroscope is not energized any longer than necessary in order to minimize radiation to the patient and the hands of the surgeon.

After the plaintiff had been placed upon the table, Bogdan injected a local anesthetic into the kidney region by using a small gauge anesthesia needle. He then inserted the biopsy needle and, using the fluoroscopic screen between six and eight times, he located the kidney and extracted a tissue specimen. After examining the specimen he concluded that it was inadequate. He made a second attempt to obtain a piece of [287]*287kidney tissue, advising the plaintiff beforehand and obtaining her consent. He adjusted the biopsy needle in order to obtain a deeper piece of kidney tissue and once again inserted it. In the course of this procedure the plaintiff suddenly felt pain far more severe than previously experienced and the needle was withdrawn before the tissue specimen could be obtained. During abdominal surgery on November 6,1972, to determine the cause of the abdominal pain which the plaintiff continued to suffer following the biopsy procedure, it was discovered that her gall bladder had been punctured and it was removed.

The complaint was in two counts, the first being directed against the defendant hospital and the second against the three doctors who in some manner had been connected with the biopsy procedure. One of the specifications of negligence in each count was the failure “to obtain the plaintiffs intelligent and informed consent to the performance of a percutaneous renal biopsy.”

I

The plaintiffs first claim of error involves the charge upon the absence of informed consent as alleged in the complaint, particularly with respect to the duty of a physician to advise a patient of feasible alternatives.1 The court instructed the jury that the duty to give a patient all information material to the decision to undergo an operation includes the obligation to advise [288]*288of feasible alternatives. The charge continued: “Now the duty to warn of alternatives exists only when there are feasible alternatives available. An alternative that is more hazardous is not a viable alternative. ” (Emphasis added.) The plaintiff excepted to the italicized sentence of the charge as removing from the patient the decision of which alternative procedure was the least dangerous. The same charge was repeated in response to a request of the jury, after they commenced deliberations, for a further definition of the standard of care. Again the plaintiff excepted to that part of the instructions.

We have not had previous occasion to consider substantively* 2 the doctrine of informed consent as a basis for malpractice liability of a physician.

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Bluebook (online)
465 A.2d 294, 191 Conn. 282, 38 A.L.R. 4th 879, 1983 Conn. LEXIS 598, Counsel Stack Legal Research, https://law.counselstack.com/opinion/logan-v-greenwich-hospital-assn-conn-1983.