Macamaux v. Millard et al

Filing 178

RULING granting in part and denying in part 117 Motion for Summary Judgment. Signed by Judge Janet C. Hall on 9/16/2011. (Oliver, T.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
ROBERT MACAMAUX,
Plaintiff,
v.
DAY KIMBALL HOSPITAL,
Defendant.

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CIVIL CASE NO.
3:09-cv-164 (JCH)

SEPTEMBER 16, 2011

RULING RE: MOTION FOR SUMMARY JUDGMENT (DOC. NO. 117)
I.

INTRODUCTION
The claims in this action arise from the medical evaluation and treatment

provided by defendant, Day Kimball Hospital, to plaintiff, Robert Macamaux, following
an automobile accident. In an Amended Complaint, Macamaux asserts six causes of
action under federal and state law. Day Kimball has moved for summary judgment
regarding three of these claims: Count I, a claim for failure to provide an appropriate
medical screening examination as required by the Emergency Medical Treatment and
Active Labor Act (EMTALA), 42 U.S.C. § 1395dd(a); Count II, a claim for failure to
stabilize an emergency medical condition as required by EMTALA, 42 U.S.C.
§ 1395dd(b); and Count IV, a state law claim for failure to obtain Macamaux’s informed
consent. Counts III, V, and VI of the Amended Complaint are not at issue here. For the
reasons that follow, Day Kimball’s Motion is granted in part and denied in part.
II.

FACTS1
At approximately 4:00 pm on January 16, 2006, Macamaux was in a traffic

accident while traveling on Interstate 395 in Plainfield, Connecticut. Based on
1

Unless otherwise cited, the following facts are based upon the uncontested portions of the
parties’ Local Rule 56(a) Statements.

1

Macamaux’s complaint of neck pain, the first responders on the scene placed
Macamaux on a backboard and fitted him with a cervical collar. Macamaux was then
transported by ambulance to Day Kimball Hospital in Connecticut, arriving at 4:54 p.m.
At Day Kimball’s emergency department, the triage nurse assessed Macamaux
and noted that he complained of neck and back pain and pain between the shoulders.
Subsequently, Macamaux was examined by Dr. Nelson, a board certified emergency
physician on duty, and Macamaux was registered in Day Kimball’s computer system as
complaining of “upper back pain.” Dr. Nelson ordered x-rays for cervical spine trauma
and x-rays of the chest. At the time the x-rays were ordered, no radiologists were
scheduled to be on duty. In such circumstances, Day Kimball policy calls for the x-rays
to be read in the first instance by the emergency department, i.e., by Dr. Nelson, and
reviewed later by a radiologist during a subsequent shift. In his deposition, Dr. Nelson
testified that he interpreted these x-ray images and then reassessed Macamaux and
found that Macamaux had scapula pain, but no neck pain or tenderness. Nelson Dep.
(Pl. Ex. 3) at 52-53, 58. These findings are not recorded in the medical record. See Pl.
Ex. 11.
By 6:30 p.m., Dr. Nelson ordered a CT scan of Macamaux’s chest and a blood
alcohol test. However, Dr. Nelson canceled these tests at 6:35 p.m. Dr. Nelson
testified that he had spoken to Macamaux about “getting a CT scan of his chest and he
wanted to leave. That’s why these orders were canceled.” Nelson Dep. at 58; see id. at
91. However, Macamaux was not then discharged. At approximately 6:40 p.m., Dr.
Nelson ordered additional x-rays, including chest x-rays, an x-ray of the left scapula,
and a lateral x-ray of the cervical spine. Dr. Nelson testified that he ordered these
2

additional x-rays “because this first group was not adequate in my opinion.” Id. at 58.
At 7:25 p.m., after interpreting the second set of x-rays, Dr. Nelson evaluated
Macamaux again and determined to discharge him. At that time, Dr. Nelson noted,
“Home with son. Stable.” At 7:45 p.m., Macamaux was discharged with a diagnosis of
“MVA, Back strain.” In a typewritten report prepared eleven days later, Dr. Nelson
states that, while at Day Kimball, Macamaux had denied having neck pain, that Dr.
Nelson had ordered a “minimum of 4 views” with “no fractures seen.” Macamaux claims
that he did not deny having neck pain.
Day Kimball’s Diagnostic Services Manual contains a policy regarding the
images that must be taken when cervical spine trauma x-rays are ordered. That policy
lists a number of steps that “must be performed,” including taking the following cervical
images: a “Shoot-thru Lateral,” a “Swimmer’s,” and “AP and Odontoid films.” Day
Kimball Policy DI: Trauma Procedure (Pl. Ex. 10 at 13-15). Regarding the “Swimmer’s”
image, the policy states, “C7-T1 junction MUST be clearly visualized.” Id. The policy
further indicates that the reviewing “physician will notify the technologist whether or not
the patient needs any additional films.” Id. (Pl. Ex. 10 at 14). That was apparently not
done here.
On January 17, 2006, the day after Macamaux was discharged, his x-rays were
reviewed by Dr. Millard, a board certified radiologist at Day Kimball. Dr. Millard’s report
noted that, in the first set of x-rays taken, “[t]he C7 vertebral body is not well seen,” and
that, in the second set taken, the “C7 vertebral body is not included on examination.”
Dr. Millard’s report indicates that the inability to see the C7 vertebra is due to the
“difficulty in penetrating the patient’s shoulders.” A subsequent review by plaintiff’s
3

medical expert confirmed that the images did not permit visualization of the C7 vertebra
due to difficulty penetrating the patient’s shoulders. Based on Dr. Millard’s finding, a
physician’s assistant at Day Kimball ordered that there be a follow up communication
with Macamaux with a recommendation that Macamaux see a physician for follow up.
A letter was sent to Macamaux four days later, on January 21, 2006.
On January 19, 2006, two days before the letter was sent, Macamaux began to
experience neck pain, arm pain, swelling of his throat, and difficulty breathing, and he
checked himself into the emergency department at Landmark Medical Center in Rhode
Island. A CT scan of the cervical spine was performed, revealing multiple fractures and
significant dislocation at the C7-T1 junction. Macamaux was immobilized and
transferred to Rhode Island Hospital, where he underwent surgery to stabilize his spine.
After ten days, on January 30, 2006, Macamaux was discharged to Rehabilitation
Hospital for physical and occupational therapy, and on February 3, 2006, he was
discharged from Rehabilitation Hospital.
Macamaux admits that he would have required spinal surgery regardless of when
the fracture was diagnosed, but contends that, due to the delay in diagnosis, he
suffered permanent spinal cord injury and neurological deficits, including pain,
weakness and limited ability to use his shoulders, neck, and upper extremities.
Macamaux claims that he has been unable to return to work as a result.
III.

SUMMARY JUDGMENT STANDARD
On a motion for summary judgment, the burden is on the moving party to

establish that there are no genuine issues of material fact in dispute and that it is
entitled to judgment as a matter of law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
4

256 (1986); White v. ABCO Engineering Corp., 221 F.3d 293, 300 (2d Cir. 2000). Once
the moving party has met its burden, in order to defeat the motion, the nonmoving party
must “set forth specific facts showing that there is a genuine issue for trial,” Anderson,
477 U.S. at 255, and present such evidence as would allow a jury to find in his favor.
Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000).
In assessing the record to address questions of fact, the trial court must resolve
all ambiguities and draw all inferences in favor of the party against whom summary
judgment is sought. Anderson, 477 U.S. at 255; Graham, 230 F.3d at 38. Summary
judgment “is properly granted only when no rational finder of fact could find in favor of
the non-moving party.” Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir.
2000). “When reasonable persons, applying the proper legal standards, could differ in
their responses to the question” raised on the basis of the evidence presented, the
question must be left to the finder of fact. Sologub v. City of New York, 202 F.3d 175,
178 (2d Cir. 2000).
IV.

DISCUSSION
A.

Failure to Provide Appropriate Screening Pursuant to EMTALA
(Count I)

EMTALA requires that, when a person is presented to a hospital emergency
department for examination or treatment,
the hospital must provide for an appropriate medical
screening examination within the capability of the hospital’s
emergency department, including ancillary services routinely
available to the emergency department, to determine
whether or not an emergency medical condition . . . exists.
42 U.S.C. § 1395dd(a). The term, “appropriate medical screening examination,” is not
5

defined in the statute.
Courts have consistently held that this screening requirement does not impose a
general federal law against malpractice or negligent diagnosis. See, e.g., Hardy v. New
York City Health & Hosp. Corp., 164 F.3d 789, 792 (2d Cir. 1999) (“EMTALA is not a
substitute for state law on medical malpractice. It was ‘not intended to guarantee proper
diagnosis or to provide a federal remedy for misdiagnosis or medical negligence.’”
(quoting Power v. Arlington Hosp. Ass’n, 42 F.3d 851, 856 (4th Cir. 1994)); Gatewood v.
Washington Healthcare Corp., 933 F.2d 1037, 1041 (D.C. Cir. 1991) (“[W]e cannot
agree that [EMTALA] creates a sweeping federal cause of action with respect to what
are traditional state-based claims of negligence or malpractice.”).
Instead, EMTALA requires hospitals to provide uniform or even-handed
screening examinations for emergency conditions, consistent with their own policies and
based on the hospital’s capabilities and the medical circumstances and symptoms
presented. See, e.g., Marshall v. East Carroll Parish Hosp., 134 F.3d 319, 323 (5th Cir.
1998) (“Most of the courts that have interpreted [‘appropriate medical screening
examination’] have defined it as a screening examination that the hospital would have
offered to any other patient in a similar condition with similar symptoms.” (citing
numerous cases)); Brooks v. Maryland Gen. Hosp. Inc., 966 F.2d 708, 710-11 (4th Cir.
1993) (Under EMTALA, “the hospital must apply its standard of screening uniformly to
all emergency room patients, regardless of whether they are insured or can pay.”
(emphasis in original)); Gatewood, 933 F.2d at 1041 (“[T]he Act is intended . . . to
ensure that each is accorded the same level of treatment regularly provided to patients
in similar medical circumstances.”). A hospital violates this requirement if it fails to
6

provide a screening consistent with its own standard screening procedures for the issue
presented. See Correa v. Hospital San Francisco, 69 F.3d 1184, 1192 (1st Cir. 1995)
(“[A] refusal to follow regular screening procedures in a particular instance contravenes
the statute . . . .”); Repp v. Anadarko Mun. Hosp., 43 F.3d 519, 522 (10th Cir. 1994)
(“[A] hospital violates section 1395dd(a) when it does not follow its own standard
procedures.”); Gatewood, 933 F.2d at 1041 (“Thus, what constitutes an ‘appropriate’
screening is properly determined . . . by reference to a hospital’s standard screening
procedures. . . . [A]ny departure from standard screening procedures constitutes
inappropriate screening in violation of the Emergency Act.”).
On the record submitted here, there is a material issue of fact as to whether or
not Day Kimball performed a screening examination that conformed to its own standard
screening procedures. Macamaux was transported to Day Kimball on a backboard, with
a cervical collar, following an automobile accident, complaining of neck and back pain.
Dr. Nelson, the physician who examined Macamaux, ordered x-rays for cervical spine
trauma. Day Kimball policy provides that when a patient is sent from the emergency
department to the radiology department for diagnostic imaging of possible cervical spine
trauma, the radiology department “must” take certain specific types of images, and that
in one of these images the “C7–T1 junction MUST be clearly visualized.” Day Kimball
Policy No. DI: Trauma Procedure (Pl. Ex. 10 at 13, 15) (emphasis omitted). The policy
further indicates that, if these tests are ordered when a radiologist is not on duty, as was
the case here, the images will be brought to the Emergency Department for the
physician to review, and the “physician will notify the technologist whether or not the
patient needs any additional films.” Id. (Pl. Ex. 10 at 14). It is uncontested that none of
7

the x-rays received and reviewed by Dr. Nelson permitted him to see and evaluate the
C7 vertebrae or the C7-T1 junction. Indeed, Day Kimball’s radiologist confirmed that
the “C7 vertebral body is not well seen” and that “the C7 vertebral body is not included
on the examination.” Day Kimball Medical Records (Pl. Ex. 11) at 8-9. Thus, it is
uncontested that, despite hospital policy that the “C7-T1 junction MUST be clearly
visualized,” Dr. Nelson discharged Macamaux without obtaining x-ray images that
permitted him to see the C7 vertebra or the C7-T1 junction. One might argue that is not
only sufficient to survive summary judgment, but to establish liability under EMTALA.
See Gatewood, 933 F.2d at 1041 (“[A]ny departure from standard screening procedures
constitutes inappropriate screening in violation of the Emergency Act.”).
Day Kimball argues that the departure from policy in this case cannot support an
EMTALA claim because the policy requiring an image showing the C7-T1 junction is
addressed to the radiology department, not the emergency department. However, Day
Kimball cites no authority that EMTALA liability may be founded only on a failure to
follow policies directed specifically at the emergency department.2 In an attempt to
support such a limitation, Day Kimball asserts that the “obligations of EMTALA are
imposed upon the Emergency Department of hospital,” Reply at 3, but the text of the
statute says otherwise. EMTALA expressly imposes a duty and a corresponding liability
upon hospitals, not specifically upon emergency departments: “the hospital must
provide an appropriate medical screening examination within the capability of the
2

Such a rule would be absurd. Under that construction of the statute, a hospital would not be
liable if it secretly directed its labs and radiology department not to follow their policies in the case of
uninsured emergency patients, but instead to prepare fake reports or images so that emergency
department doctors would discharge such patients under the impression that an adequate screening had
been performed.

8

hospital’s emergency department, including ancillary services routinely available to the
emergency department . . . .” 42 U.S.C. § 1395dd(a).3 Accordingly, a hospital may be
liable regardless of whether the hospital’s failure to provide an appropriate screening
examination might be more specifically assigned to the emergency department itself or
to an ancillary service working in conjunction with the emergency department, such as
the radiology department.4
In any case, Day Kimball cites no evidence that discharging patients based on
images that do not meet the terms of this diagnostic policy is within the standard
screening practice of Day Kimball’s emergency department. Day Kimball cites
testimony that the policies are part of the “Diagnostic Services Manual” and that they
provide instruction to “technologists [regarding the] procedure for doing trauma C
spines.” Slota Dep. (Reply Ex. 1) at 21, 26. This testimony does not rule out the
possibility that the policy also reflects Day Kimball’s expectations for its emergency
department practice. Indeed, a finder of fact could reasonably infer that, if Day Kimball
insists that an x-ray “MUST” show the C7-T1 junction, this is because the standard
screening procedure for cervical spine trauma involves consideration of such an image.
Moreover, Dr. Nelson testified that an examination of cervical spine trauma is
inadequate if the C7 vertebral body is not included, and that the appropriate measure to

3

The case law consistently reflects the plain statutory language that Day Kimball ignores. See,
e.g., Hardy, 164 F.3d at 792 (“EMTALA . . . imposes two primary obligations on . . . hospitals.” (emphasis
added)); Repp, 43 F.3d at 522 (“[A] hospital violates section 1395dd(a) when it does not follow its own
standard procedures.” (emphasis added)); Power, 42 F.3d at 856 (“The key requirement is that a hospital
apply its standard of screening uniformly to all emergency room patients . . . .” (emphasis altered;
quotation omitted)); Gatewood, 933 F.2d at 1039 (EMTALA “imposes on Medicare-provider hospitals a
duty to afford medical screening . . . .” (emphasis added)).
4

It bears noting that, under the circumstances of this case, it fell to the emergency department
doctor to read the insufficient x-rays.

9

take in such a case is to order a “repeat film and do whatever’s necessary.” Nelson
Dep. (Pl. Ex. 3) at 79-80. Plaintiff’s expert similarly testified that, if “it is necessary to
image the cervical spine at all, then it is necessary to image the entire cervical spine or
else it is not a complete study.” Johnson Dep. (Pl. Ex. 5) at 84. This testimony does
not distinguish between the standard of care applicable in a malpractice claim and the
standard screening practice at Day Kimball, which is relevant under EMTALA.
Nonetheless, given such testimony and the written policy, a fact-finder could reasonably
infer that Day Kimball’s standard screening for cervical spine trauma includes obtaining
and reviewing films that actually reveal the C7 vertebra prior to discharge.
The policy and medical testimony also prevents the court from deciding, as a
matter of law, whether this is a case of misdiagnosis based upon an appropriate
screening examination or a case of failure to provide an appropriate screening
examination. See Def. Mem. at 25-26; Power, 42 F.3d at 859 (“[I]f [the standard tests]
are performed and the doctor evaluating the results draws an incorrect conclusion, a
violation of EMTALA may not be established, but medical negligence may be.”
(quotation omitted)). Day Kimball does not cite any evidence that conclusively explains
why Dr. Nelson would order a second set of x-rays, after finding the first to be
inadequate, and then discharge Macamaux after obtaining a second set of deficient xrays. Given the diagnostic imaging policy and Dr. Nelson’s own testimony, the finder of
fact could reasonably conclude that Day Kimball provided Macamaux with a materially
incomplete screening examination.
Finally, Day Kimball argues that it is entitled to summary judgment because
Macamaux has failed to establish that it acted with an improper motive. Only the Sixth
10

Circuit has suggested that proof of motive is required for an EMTALA screening claim.
See Cleland v. Bronson Health Care Group, Inc.,917 F.2d 266, 272 (6th Cir. 1990)
(“‘[A]ppropriate’ must more correctly be interpreted to refer to the motives with which the
hospital acts.”).5 Every other circuit to consider the issue has held that the statute does
not support this interpretation. See Phillips v. Hillcrest Medical Center, 244 F.3d 790,
798 (10th Cir. 2001) (“EMTALA looks only at the participating hospital's actions, not
motives.”); Summers v. Baptist Medical Center Arkadelphia, 91 F.3d 1132, 1138 (8th
Cir. 1996) (en banc) (“[T]he statute contains no such requirement . . . .”); Power, 42
F.3d at 857 (4th Cir.) (“We are persuaded that the D.C. Circuit’s rejection of an improper
motive requirement is indeed the correct approach.”); Burditt v. U.S. Dep’t of Health and
Human Services, 934 F.2d 1362, 1373 (5th Cir. 1991) (“As written, EMTALA prevents
patient dumping without [an improper motive] requirement. We refuse to alter the
statutory scheme.” (citation omitted)); Gatewood, 933 F.2d at 1041 & n.3 (D.C. Cir.)
(“We do not read subsection 1395dd(a) as referring in any way to the ‘motives’ with
which an emergency room acts when it provides something less than its normal
screening procedure.”). This latter group of decisions is persuasive. The statutory
language does not reflect any concern with motives. See 42 U.S.C. § 1395dd(a).
Therefore, Macamaux is not required to show that Day Kimball acted with an improper
motive in order to prevail on his EMTALA screening claim.
In sum, there is a material issue of fact as to whether Day Kimball provided a
screening examination consistent with its own standard screening practice for cervical

5

Day Kimball contends that Holcomb v. Monahan, 30 F.3d 116 (11th Cir. 1994), also supports an
improper motive requirement. That decision does not mention, much less support, such a requirement.

11

spine trauma prior to discharging Macamaux. Therefore, Day Kimball’s Motion for
Summary Judgment is denied with respect to Count I.
B.

Failure to Stabilize Pursuant to EMTALA (Count II)

In addition to requiring an appropriate medical screening, EMTALA requires
stabilization of any known emergency medical conditions prior to discharge.
Specifically, the statute provides:
If any individual . . . comes to a hospital and the hospital
determines that the individual has an emergency medical
condition, the hospital must provide either . . . such
treatment as may be required to stabilize the medical
condition, or [a transfer to another medical facility, under
conditions further specified in subsection 1395dd(c)].
42 U.S.C. § 1395dd(b). In Count II, Macamaux alleges that Day Kimball violated this
requirement by discharging him without stabilizing his condition or providing him with an
appropriate transfer.
The statutory language indicates that EMTALA’s stabilize or transfer requirement
applies only where the hospital “determines” that the individual has an emergency
medical condition. 42 U.S.C. § 1395dd(b). This language has been interpreted to
require “actual knowledge,” or diagnosis, of the emergency medical condition. See,
e.g., Torretti v. Main Line Hospitals, Inc., 580 F.3d 168, 178 (3d Cir. 2009) (A claim for
violation of subsection 1395(b) “requires that . . . the hospital actually knew of [plaintiff’s
emergency medical] condition . . . .”); Bryant v. Adventist Health System/West, 289 F.3d
1162, 1166 (9th Cir. 2002) (“[A] hospital has a duty to stabilize only those medical
conditions that its staff detects.”); Battle v. Mem. Hosp. at Gulfport, 228 F.3d 544, 558
(5th Cir. 2000) (“The duty to stabilize does not arise unless the hospital has actual
12

knowledge that the patient has an unstabilized medical emergency.”); Summers, 91
F.3d at 1140 (“[U]nder the express wording of the statute, this portion of EMTALA
applies only if the hospital determines that the individual has an emergency medical
condition . . . .” (emphasis in original; quotation omitted)); Holcomb v. Monohan, 30 F.3d
116, 117 (11th Cir. 1994) (“To succeed on a section 1395dd(b) claim, a plaintiff must
present evidence that . . . the hospital knew of the [emergency medical] condition . . . .”);
Gatewood, 933 F.2d at 1041 (“Here, no such [emergency] condition was diagnosed,
and the statute’s stabilization and transfer requirements are therefore inapplicable.”).
The statute defines an emergency medical condition as
a medical condition manifesting itself by acute symptoms of
sufficient severity (including severe pain) such that the
absence of immediate medical attention could reasonably be
expected to result in-(i) placing the health of the individual . . . in serious jeopardy,
(ii) serious impairment to bodily functions, or
(iii) serious dysfunction of any bodily organ or part[.]
42 U.S.C. § 1395dd(e)(1)(A).
Macamaux admits that his emergency medical condition—a fractured C7
vertebra—was not diagnosed prior to his discharge. See Pl. L.R. 56(a)(2) St. at 8, ¶ 5
(“[T]he scans performs did not permit full visualization of Plaintiff’s spine, specifically the
C7 vertebral body could not be seen.”). Macamaux admits that he was discharged “with
a diagnosis of ‘MVA, back strain,’” Pl. L.R. 56(a)(2) St. at 2, ¶ 20, and with “a diagnosis
of contusions of the shoulder and scapular region,” Pl. L.R. 56(a)(2) St. at 9, ¶ 13.
Significantly, Macamaux also admits that, as a result of the inadequate scans, Day
Kimball had not determined that he had a condition requiring stabilization. Pl. L.R.
13

56(a)(2) St. at 8, ¶ 9 (“Because the imaging did not present a complete picture of the
Plaintiff’s cervical spine, the scans did not show that Plaintiff had a fracture injury to his
spine requiring stabilization, immediate care and treatment.”).
Nonetheless, Macamaux argues that he may prevail on his stabilization claim
because Day Kimball “was well aware of the potential severity of Plaintiff’s injuries
before his discharge.” Opp. at 16 (emphasis added). In support of this assertion,
Macamaux cites only the evidence that the diagnostic images obtained by Dr. Nelson
did not rule out his emergency medical condition. This is not sufficient to create a
material issue of fact on a claim under EMTALA’s stabilization requirement. Evidence
that Day Kimball had not adequately ruled out a C7 fracture does not support an
inference that Day Kimball had actual knowledge that Macamaux had an emergency
medical condition, as required by the statute.
Macamaux seeks to draw an analogy to the Fifth Circuit’s decision in Battle, 228
F.3d 544. There, the court permitted plaintiff to proceed on an EMTALA stabilization
claim although the record indicated that hospital had not correctly diagnosed the
patient’s underlying medical condition at the time of the discharge. However, in doing
so, the Fifth Circuit relied on the fact that, prior to discharge, the doctor had diagnosed
the patient as having another medical condition—seizure disorder—and on expert
testimony that that condition was an emergency medical condition requiring
stabilization. See Battle, 228 F.3d at 559. Here, there is no evidence that any medical
professional at Day Kimball had diagnosed Macamaux as having any emergency
medical condition prior to discharge. Macamaux’s argument is essentially that Dr.
Nelson had a reason to suspect an emergency medical condition and did not do enough
14

to investigate that suspicion. This may be sufficient to establish an EMTALA screening
claim or a claim for negligence, but it does not create a material issue of fact as to the
actual knowledge requirement for an EMTALA stabilization claim.
Macamaux has failed to show that there is any issue of fact regarding an
essential element of his EMTALA stabilization claim. Therefore, Day Kimball is entitled
to summary judgment on Count II.
C.

Lack of Informed Consent (Count IV)

In Count IV, Macamaux alleges that Day Kimball is liable for failing to obtain his
informed consent “to the treatment and care Defendant Day Kimball proposed to
administer and perform upon him . . . .” Amended Complaint at 4, ¶ 2. Macamaux does
not indicate any procedure or affirmative form of treatment that Day Kimball performed
without his informed consent. Rather, it appears that the “treatment and care” at issue
is the decision to discharge him without further treatment or testing. See Opp. at 18 (“If
Plaintiff had been informed of [the inadequate evaluation of his spine], he might have
insisted on additional or different scans, or else sought treatment at another hospital.”).
The Connecticut Supreme Court has explained that a medical malpractice claim
based on lack of informed consent derives from the right against bodily intrusions that
underlies the intentional torts of assault and battery:
The informed consent doctrine derives from 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.”
Sherwood v. Danbury Hosp., 278 Conn. 163, 180 (2006) (quoting Logan v. Greenwich
15

Hospital Ass’n, 191 Conn. 282, 288-89 (1983)). A claim based on lack of informed
consent is nonetheless analyzed as a claim for negligence, as it tests the doctor’s
performance of his “duty to exercise due care in informing a patient of medical risks.”
Sherwood, 278 Conn. at 180 (quotation omitted); see Logan, 191 Conn. at 299.
Under Connecticut law, “the doctrine of informed consent is a limited one.” Duffy
v. Flagg, 279 Conn. 682, 693 (2006) (quotation omitted). In 2001, the Connecticut
Supreme Court observed that “[a]ll of the informed consent cases in Connecticut have
involved the adequacy of information disclosed regarding the procedure and treatment
to be performed.” Alswanger v. Smego, 257 Conn. 58, 67 (2001) (collecting cases). All
of the cases cited by Macamaux involve claims based upon medical procedures actually
performed upon a person. See Duffy, 279 Conn. 682 (vaginal birth after cesarean
section resulting in the need for emergency surgery); Sherwood, 278 Conn. 163 (blood
transfusion resulting in HIV infection); Janusauskas v. Fichman, 264 Conn. 796 (2003)
(radial keratotomy procedure resulting in loss of vision); Logan, 191 Conn. 282 (biopsy
of the kidney resulting in punctured gallbladder). Furthermore, in each case, the
Connecticut Supreme Court has explained the relevant duty as a duty to provide
information about the procedure to be performed upon the patient:
[O]ur inquiry has been confined to whether the physician has
disclosed: “(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.”
Sherwood, 278 Conn. at 180 (quoting Logan, 191 Conn. at 292); accord Duffy, 279
Conn. at 692; Janusauskas, 264 Conn. at 810 n.12; Alswanger, 257 Conn. at 67-68.
Macamaux has cited no case in which any court has permitted a claim for lack of
16

informed consent based on a decision to discharge a patient without additional medical
testing or medical care. Such a claim is not supported by the underlying principles that
a person has a right to decide what is done to his body and that a procedure performed
without informed consent is an assault upon the person. See Sherwood, 278 Conn. at
180. Rather, such a claim would reflect an extension of the doctrine of informed
consent beyond that underlying basis.
The Connecticut Superior Court has rejected this extension of informed consent.
In Glover v. Griffin Health Services, the court held as follows:
[P]laintiff’s claims are based on allegations that the
defendants failed to inform her of the limitations, results,
findings, or significance of her CT scan, MRI, lumbar
puncture and examinations, and that the defendants failed to
inform her of additional tests or studies that were available.
. . . Thus, the plaintiff’s informed consent claims are devoid
of any allegations of a failure to inform her of the risks or
alternatives associated with a particular treatment or
procedure that she received, and as such, fail to assert the
requisite elements of this cause of action as set forth by
Connecticut cases.
2006 WL 1828605, *4 (Conn. Super. June 21, 2006). In a subsequent similar case, the
Superior Court followed Glover where the plaintiffs’ doctor failed to diagnose a serious
condition revealed by a fetal ultrasound examination. See Rich v. Foye, 51 Conn.
Supp. 11, 34-35, 976 A.2d 819 (Conn. Super. 2007). The Rich court similarly held that
a claim for lack of informed consent could not be based on a failure to inform the patient
properly of the results and the limits of the testing performed. See id.
Further, in both cases, as in the present case, the doctor had misdiagnosed or
failed to detect the problematic medical condition, and in both cases, the court held that
such claims are more appropriately framed as claims for negligent misdiagnosis. See
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id.; Glover, 2006 WL 1828605, *4-*5 (citing Backlund v. University of Washington, 137
Wash. 2d 651, 661 n.2, 975 P.2d 950 (1999); Roukounakis v. Messer, 63 Mass. App.
482, 487, 826 N.E.2d 777 (2005)). Macamaux asserts such a claim in Count III of the
Amended Complaint.
In sum, decisions of the Connecticut Supreme Court do not support a claim for
lack of informed consent where a doctor fails to diagnose a condition, fails to inform the
patient of the shortcomings of the diagnostic examination, and therefore, fails to treat
the condition. Connecticut’s lower courts have expressly rejected an extension of the
doctrine of informed consent to such circumstances. Further, Connecticut law provides
an opportunity for redress in such circumstances in the form of a claim for negligent
misdiagnosis and treatment, a claim which is separately alleged here. Accordingly, the
court holds that the doctrine of informed consent does not extend to the circumstances
presented here. Day Kimball is entitled to summary judgment on Count IV.
V.

CONCLUSION
For the foregoing reasons, Day Kimball’s Motion for Summary Judgment is

granted in part and denied in part. It is granted with respect to Counts II and IV, and
denied with respect to Count I.
SO ORDERED.
Dated at Bridgeport, Connecticut, this 16th day of September, 2011.

/s/ Janet C. Hall_
Janet C. Hall
United States District Judge 

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