Pekera - Appellate Victory

December 29, 2003
The Appellate Practice Group of Wiggin & Dana has prevailed in the Connecticut Appellate Court in affirming a summary judgment for its client physician in a wrongful death action. In the case of Pekera v. Purpora, the plaintiff estate had sued for medical malpractice claiming the physician, a pulmonologist, failed to timely intubate and properly manage the patient's pulmonary condition when she was hospitalized with pneumonia and died. Because the decedent had refused to consent to intubation, the plaintiff's medical expert offered his opinion at his deposition that the physician could not have sufficiently advocated to the patient the need for intubation. The Appellate Court, in an opinion to be published in the December 30, 2003 Connecticut Law Journal, agreed with the trial court that the expert's opinion addressed the question of due care in informing the patient of medical risks -- that is, an issue of informed consent -- and not the question of appropriate performance of professional skills. Because the complaint's specification of negligence in managing the patient's medical condition addressed negligent performance and not informed consent, and the expert offered no opinion of negligent medical performance, the Appellate Court agreed that the physician was entitled to summary judgment. In doing so, the Appellate Court established important precedent in keeping negligent medical performance doctrinally distinct from informed consent or informed refusal of care, making it difficult for a plaintiff to change from one theory of recovery to the other after the expiration of the statute of limitations.