Sabatini and Associates, LLC

Attorney James Sabatini has prevailed before the Connecticut Supreme Court in the case entitled Shortell v. Cavanagh.  The case involved injuries suffered by a client during a dental procedure.  The injuries involve significant nerve damage.  A complaint was filed against the dentist and the complaint alleged failure to obtain informed consent. Defendant moved to dismiss the case on the grounds that a written opinion letter from a similar health care provider was not attached to the complaint.  Attorney Sabatini objected to the motion on the grounds that the statute (C.G.S. Sec. 52-190a) requiring a written opinion letter to be attached to medical malpractice lawsuits does not apply to informed consent claims.  The trial court granted the motion to dismiss.  Attorney Sabatini appealed and the Connecticut Supreme Court agreed with Attorney Sabatini’s legal position.  The Court held that 52-190a does not apply to a claim of lack of informed consent. The statute only applies to medical negligence claims and medical negligence claims as that term is used in 52-190a only pertain to claims where the standard of care and deviations from the standard of care are established and judged by an expert standard.  Informed consent claims are judged by a lay standard.

Connecticut lawmakers are considering a bill that would require state health officials to report annually on “adverse” events at hospitals and conduct random audits to determine hospitals’ compliance with reporting requirements.  Currently, only five states require specific disclosure of adverse events.  The public benefit of disclosure would be better accountability, more information to patients when choosing their doctors, and a reduction of medical errors.  Here is a map that displays the disclosure laws for each state. 

Attorney James Sabatini recently obtained a settlement for his client in a dental malpractice case.  The amount of the settlement is confidential.  The case involved multiple tooth extractions.  During the extractions, a communication was created between the mouth and the maxillary sinus.  Such a communication or hole is a known risk of extractions of upper teeth.  The communication went undiagnosed for an unreasonable period of time.  Since it went undiagnosed, no treatment was provided and the client suffered chronic sinusitis and other injuries.  The case settled shortly before trial.

To understand what informed consent means in a medical context and how to prove a failure to obtain informed consent, the following information is provided.  This information is taken directly from Connecticut court’s jury instructions in cases involving a failure to obtain informed consent cause of action.
The theory of informed consent imposes a duty upon a physician that is completely separate and distinct from (his/her) responsibility to skillfully diagnose and treat the patient’s ills.  A physician has a duty to disclose all known material risks of the proposed procedure.  A material risk is risk that a reasonably prudent person in the patient’s position would have found significant in deciding whether or not to submit to the proposed procedure.  The physician has a duty to give a patient whose situation permits it all information material to the decision to undergo the proposed procedure.  This duty includes a responsibility to advise the patient of feasible alternatives.  The duty to warn of alternatives exists only when there are feasible alternatives available.
The plaintiff must prove both that there was a failure to disclose a known material risk of a proposed procedure and that such failure was a proximate cause of (his/her) injury.  In order to find proximate cause in this context, you must find that a disclosure of the material risks of the proposed procedure would have resulted in a decision by a reasonably prudent person in the patient’s position not to submit to the proposed procedure.  The particular patient’s reaction, had (he/she) received the information as to the risks involved, is not the governing one with respect to the duty to inform.  The standard is what a reasonably prudent person in the patient’s position would have decided if suitably informed of all material risks.

The United States Government agreed to pay a former Utah family nearly $1 million to settle a medical malpractice case involving failure to treat infection / sepsis. The man was being treated for leukemia at at a Veterans Affairs hospital in 2004 when he developed a severe infection and died. His surviving wife and daughter filed suit under the Federal Tort Claims Act, alleging that the hospital told him to take gas-x instead of going to the emergency room to get antibiotics. The man was diagnosed with leukemia in June 2004 and received chemotherapy at the VA in October. Three days after his last treatment, he had diarrhea and abdominal pain. After calling the hospital to see what to do, his wife was told by an oncology doctor that the man should take an over-the-counter medicine for gas. What he really needed were antibiotics immediately to fight off a severe infection.  He did not receive the antibotics and died and preventable death.