Survey of Connecticut Tort Law: 1991
| Pages | 245 |
| Publication year | 2021 |
66 CBJ 245. Survey of Connecticut Tort Law: 1991
The most significant developments in Connecticut tort law in 1991 occurred in the areas of medical malpractice, emotional distress, governmental liability and premises liability. Other decisions of interest affected the law of unfair trade practices, product liability and tort actions relating to workers' compensation. This survey will discuss decisions in these and other areas, and then briefly outline tort related cases which had a significant impact on trial procedure.
The Connecticut Supreme Court has determined that more than one method of diagnosis by a physician may be appropriate, so that the failure to utilize a more conventional method may not be malpractice. In Wasfi v. Chaddha, (fn1) the plaintiff had visited one of the defendant doctors, an ear and throat specialist, complaining that she had suddenly lost hearing in one ear. (fn2) Before ordering a CAT scan, the doctor recommended a treatment called "carbogen therapy," which involves inhaling carbon dioxide and oxygen to open a blocked ear vessel. The patient was instructed to notify the doctor after the therapy was completed, at which time the doctor testified he would have ordered a CAT scan if hearing loss persisted. The patient subsequently decided against undergoing the therapy, but never notified the doctor of her decision. A CAT scan performed six months later by a different physician revealed the existence of an acoustic neuroma, which is a progressively enlarging benign tumor within the ear. Surgery performed to remove the tumor resulted in total hearing loss in one ear, facial paralysis, and voice loss.
At trial, experts on both sides disagreed about the propriety of prescribing carbogen therapy prior to ordering a CAT scan. The jury returned a defendants' verdict from which the plaintiff appealed.
The primary issue on appeal pertained to the judge's charge to the jury that, if the carbogen therapy was "an established diagnostic modality under any recognized school of thought" (fn4) in cases such as the instant one, the physician was not negligent in using it. The plaintiff argued that this amounted to a "schools of thought" charge, which provides that the law will not choose between different medical schools of thought, as long as a physician acts in accordance with the standards of a particular 11 school." Such a charge would have been improper because the defendant physician had offered no evidence at trial that his conduct conformed to a distinct recognized school of thought in his speciality.
The Supreme Court rejected this argument, noting that despite the unfortunate use of the term, the trial court was not instructing on "schools of thought," but rather on the principle of "acceptable alternatives." This principle provides that where a treatment is one of choice among competent physicians, a doctor is not guilty of malpractice in selecting the one which, in his or her judgment, is best suited to the patient's needs. The doctrine does not require evidence of a recognized school of thought. However, the plaintiff argued that the doctrine was inappropriate in her case because it applied to alternative methods of treatment, not diagnosis. The Supreme Court disagreed, finding "no reasoned basis for recognizing a physician's latitude in selecting alternative acceptable methods of treatment, but denying him the same latitude in selecting alternative acceptable methods of diagnosis." (fn5) All that is required is a showing that the method is approved by the profession as a whole or is the subject of unresolved conflict in the profession as to its wisdom.
This relaxed standard may open "Pandora's Box" as suggested by the plaintiff in Wasfi, by allowing jurors to avoid making the sometimes difficult choice between opposing experts as to acceptable methods of treatment and diagnosis. While this
might be desirable in cases involving two equally acceptable or recognized methods, it may also have the impact of shielding physicians from liability any time two experts disagree, which occurs frequently. The Supreme Court recognized this potential temptation for jurors to decide that both sets of experts are right ' but determined that this possibility was endemic to the jury system and not the result of the expanded principle created by its decision.
Three opinions by the Appellate Court involved the doctrine of informed consent, which requires doctors in some instances to obtain a patient's consent prior to performing certain medical procedures. In Samose v. Hammer-Passero Norwalk Chiropractic Group, P.C., (fn6) the Appellate Court considered the evidence necessary to establish causation in an action for lack of informed consent. The only evidence offered in Samose was the plaintiff's testimony on direct examination that he would have walked out of the defendant's office had he been informed of the potential risks associated with a chiropractic manipulation (fn7) The Court found this evidence sufficient to allow a jury to find that the lack of informed consent caused the plaintiff's damages.
In Hammer v. Mount Sinai Hosp., (fn8) the standard of proof for proximate causation in an informed consent case was addressed. The Court noted that two separate standards, one subjective and one objective, have been recognized in other jurisdictions, but the courts in Connecticut have not yet adopted either standard. The test under the subjective standard is whether the patient would have decided differently about submitting to the medical procedure at the time the decision had to be made if he or she had been properly informed. The test under the objective standard is whether a prudent person in the patient's position
would have decided to undergo the procedure if suitably informed of all significant perils.
The Court in Hammer chose to follow the majority of jurisdictions by holding that the objective standard is the better test. The Court questioned the validity of the subjective standard's reliance upon the patient's testimony, given in hindsight by an injured and disgruntled plaintiff. (fn9) This decision appears to contradict the ruling in Samose, where the patient's testimony was the sole basis for the finding of causation. To reconcile these two cases, there seems to be a requirement that the plaintiff produce some evidence of causation, which will almost always be limited to his own testimony. The fact-finder will then apply the objective test to that evidence before finding causation. Thus, even where a patient testified he would not have submitted to a medical procedure had he been properly informed of the risks, there is no proximate cause if the jury finds that a prudent person similarly informed would have undergone the procedure.
In Mason v. Walsh, (fn10) the Appellate Court held that, where a claim for lack of informed consent is made against several physicians involved in a procedure, the plaintiff must establish by expert testimony which, if any, of the physicians owed him a duty to inform. The plaintiff in Mason had sued two anesthesiologists and a urologist for failing to obtain his informed consent to the administration of general anesthesia prior to surgery. The evidence at trial indicated that the duty to inform rested with an anesthesiologist, without identifying which one and without addressing any duty of the urologist. Verdicts were returned in favor of the two anesthesiologists and against the urologist, from which the latter appealed. The Appellate Court reversed the judgment against the urologist, noting that the plaintiff had failed to offer expert testimony that the customary standard of care in his speciality was to obtain the patient's informed consent to the method of anesthesia.
In one Superior Court decision of note, Martinez v. Hartford Hosp., (fn11) the court refused to strike a malpractice claim involving a failure to diagnose the plaintiff's pregnancy at the time she was examined for and underwent sterilization by tubal ligation. The plaintiff subsequently gave birth to twin girls. Based upon the plaintiff's claim she would have procured an abortion had she been properly informed of the pregnancy, the court held that damages pertaining to the birth of the twins and costs of raising them were recoverable. This holding represents a significant extension of the Supreme Court's ruling in Ochs v. Borelli, (fn12) wherein damages pertaining to childbirth and child rearing were allowed where the birth resulted from conception occurring after an unsuccessful sterilization procedure. Under the fact pattern in Ochs, the issue of proximate cause was clear, whereas in Martinez it depends upon the subjective and potentially selfserving statement of the plaintiff that she would have undergone an abortion had she been advised of her pregnancy. This case not only raises questions about the subjective-objective standards for causation discussed above with respect to informed consent, but also about the impact that the perennial debate over abortion will have on the law in this area and on a jury deciding the issue.
Confusion regarding the viability of recovery for bystander emotional distress continues in the Superior Court. The Supreme Court's 1988 decision in Maloney v. Conroy (fn13) prohibiting such claims in medical malpractice actions has spawned a series of conflicting decisions on whether such claims remain viable in other contexts.
In Short v. Connecticut, (fn14) a claim for bystander emotional distress arose from...
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