ALLISON DOWNS et al. v. ORLITO A. TRIAS, M.D., et al., SC 18755

Judicial District of Waterbury

 Medical Malpractice; Informed Consent Doctrine; Expert Testimony; Whether Plaintiffs Should have been Precluded from Introducing Expert Testimony on the Ground that Their Claims fell Within the Scope of the Informed Consent Doctrine.  In 2005, the named defendant, Orlito A. Trias, M.D., performed a hysterectomy on the named plaintiff, Allison Downs.  Approximately one year later, Downs was diagnosed with ovarian cancer.  Thereafter, Downs and her husband brought this medical malpractice action against Trias and his professional corporation, alleging, among other things, that Trias improperly failed to advise Downs during a preoperative consultation that her ovaries needed to be removed at the time of her hysterectomy.  Prior to the start of evidence, the defendants filed a motion in limine, arguing that the plaintiffs should be precluded from introducing expert testimony because their claims fell within the scope of the informed consent doctrine, and, under that doctrine, expert testimony is inadmissible given that informed consent claims are governed by a lay standard, not a medical one.  The plaintiffs countered that their claims sounded in both traditional medical negligence and a lack of informed consent because, in addition to alleging that Trias' advice was defective, they also alleged that Trias failed to properly treat Downs by neglecting to recommend that her ovaries be removed and by failing to remove her ovaries.  The trial court agreed with the plaintiffs and denied the defendants' motion.  Thereafter, Downs testified that a physician's assistant, Laurie McAnaspie, had informed her that her ovarian cancer could have been prevented if her ovaries had been removed at the time of her hysterectomy.  The defendants objected to this testimony on hearsay grounds, but the trial court overruled the objection on the ground that the testimony was admissible pursuant to § 8-3 (5) of the Connecticut Code of Evidence, which provides that a statement made for purposes of obtaining a medical diagnosis or treatment cannot be excluded by virtue of the hearsay rule.  Furthermore, over the defendants' objection, the court also permitted Downs to testify that she would have consented to the removal of her ovaries if Trias had recommended that she do so, ruling that such testimony related to the issue of causation.  Subsequently, the defendants sought to call McAnaspie as a witness for the purpose of contradicting Downs' version of her conversation with McAnaspie.  The court ruled that permitting McAnaspie to testify would constitute an unfair surprise since she had not been deposed by the parties.  The defendants later filed a motion for a mistrial, arguing that, although the court permitted the plaintiffs to question Trias regarding his knowledge of a genetic test for determining a woman's risk of developing ovarian cancer, it unfairly restricted the defendants' ability to question Trias about the same test.  The trial court denied the motion, and, subsequently, the jury returned a verdict in favor of the plaintiffs.  In this appeal, the Supreme Court will determine whether the trial court's rulings were proper.