Petriello v. Kalman

Connecticut Supreme Court · Torts

TortsMedical malpracticeInformed consentDamagesdirected verdictdutyhospital liabilityindependent physician

Facts

The plaintiff, pregnant and under Kalman's care, was admitted to Griffin Hospital after tests showed fetal death in utero, and Kalman planned a dilatation and curettage. Before surgery, a hospital nurse administered preoperative medication even though the plaintiff had not yet signed the hospital's informed consent form, contrary to hospital policy. Kalman then had the medicated plaintiff sign the form and performed the procedure, during which he perforated her uterus and injured her small intestine, requiring a bowel resection. Plaintiff's experts testified that the resection more probably than not caused adhesions and created an increased risk of future bowel obstruction, estimated by one expert at 8 to 16 percent.

Issue

Did the hospital owe a legal duty to obtain or ensure the plaintiff's informed consent before preoperative medication was administered for surgery by a nonemployee physician? Also, could the jury properly consider expert testimony and receive instructions allowing damages for the plaintiff's fear of future bowel obstruction and for the increased risk that such an obstruction would occur?

Rule

The duty to obtain a patient's informed consent to surgery rests with the attending physician, not with a hospital whose facilities are used by an independent, nonemployee physician, and a hospital policy requiring a signed consent form does not itself create a duty to guarantee informed consent. In a tort action, when a defendant's breach of duty is a substantial factor in causing a present injury that results in an increased risk of future harm, the plaintiff may recover compensation measured by the likelihood that the future harm will occur; evidence of increased risk is also admissible to support damages for fear of future injury when that fear has a reasonable basis.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Cleveland, Nora Patel scheduled knee surgery at Lakefront Pavilion Hospital with Dr. Ethan Cross, an orthopedic surgeon who merely held staff privileges there and was not a hospital employee. A hospital nurse noticed that Nora had not yet signed the hospital's consent form before sending her to pre-op, but Dr. Cross later arrived, obtained her signature, and operated.

If Nora later claims Dr. Cross never adequately explained the risks and alternatives, which statement best describes the hospital's liability on that theory?

Explanation. When surgery is performed by an independent, nonemployee physician, the attending physician bears the duty to obtain the patient's informed consent. The hospital is not a guarantor that the physician's disclosures were adequate merely because its facilities were used for the procedure. (Derived from Petriello v. Kalman (n.d.).)