This past February, the Supreme Court advanced our understanding of the nettlesome Connecticut General Statutes § 52-190a, which requires plaintiffs in medical malpractice cases to obtain a “good faith” written statement from a health care provider of the same specialty as the defendant. This decision, together with the Appellate Court’s work on the same subject, went a considerable distance toward much needed clarification.

Other decisions of note from the high court in the area of medical malpractice related to evidentiary issues (inferences and inflammatory remarks), an exegesis on the difference between claims of medical malpractice and lack of informed consent, and a review of the law of juror misconduct.

Spelling Out Details

In Wilcox v. Schwartz, 303 Conn. 630 (2012), the state Supreme Court clarified the portion of C.G.S. § 52-190a that requires the similar medical provider to offer a “detailed basis” for his or her conclusion that the lawsuit defendant acted in a negligent manner. The Court concluded that the written opinion must state the similar health care provider’s opinion as to the applicable standard of care in the matter in question, the fact that the standard of care was breached, and the factual basis of the author’s conclusion concerning the breach.

The Court reiterated that the written opinion requirement was not intended to impose an additional burden on those plaintiffs seeking redress for reasonably investigated, potentially meritorious claims. Notably, in Wilcox, the Court stated that the opinion of a similar health care provider may be based on evidence of an injury or outcome that the medical professional believes is highly unlikely to have occurred in the absence of negligence.

To give Wilcox a temporal context, in July 2011 the Supreme Court decided Morgan v. Hartford Hospital, in which it held that the failure to attach a proper written opinion letter constituted insufficient service of process, and thus Practice Book § 10-32 and its corresponding time and waiver rules applied.

This past year, the Appellate Court, in Lohnes v. Hospital of Saint Raphael, decided that the 30-day time limit for filing a motion to dismiss under § 52-190a commenced as of the return date, not the date of the defendant’s appearance, which was filed before the return date. The intermediate court also ruled in Lucisano v. Bisson and Bell v. Hospital of Saint Raphael that the opinion letter must contain the author’s qualifying information.

Reasonable Inferences

Curran v. Kroll, 303 Conn. 845 (2012), came to the Supreme Court on the grant of a motion for directed verdict for the defense. The issue before the Court was whether there was sufficient evidence to support an inference that Dr. Sherry Kroll had failed to advise the plaintiff’s decedent, Leeann Curran, that leg pain was a symptom of blood clots associated with her newly prescribed birth control pills. The plaintiff had presented evidence from the decedent’s mother and husband that she had no idea what was causing her pain.

The court held that, “[a]lthough the evidence cannot be characterized as overwhelming, and it would not necessarily have compelled a finding that Kroll failed to warn the decedent about leg pain, it was sufficient to have produced ‘in the mind of the trier a reasonable belief in the probability of the existence of the material fact.’”

In other words, the evidence was sufficient to present the case to the jury based on reasonable inferences, not on speculation.

In Pin v. Kramer, the state Supreme Court held that it was harmful error for the trial court to have failed to issue a curative instruction in the face of the defense expert’s “highly controversial and legally improper” comment blurted out in fit of pique.

In front of the jury, the expert exclaimed: “I live in the worst malpractice community in the world. And…we practice a lot of defensive medicine. It’s true. It’s unfortunate, but it’s true. And so we order way more tests. You hear about the cost of medicine going up. We are the epicenter of it because we have more doctors leaving because they can’t get insurance and things like that. So, we order way more tests than are necessary to protect ourselves. And that’s just a fact.”

Informed Consent

Downs v. Trias, 306 Conn. 81 (2012), presented the Court with the opportunity to further define the proper characterization of a claim as either one alleging medical negligence or lack of informed consent.

At age 22, the plaintiff underwent a prophylactic bilateral mastectomy owing to her strong family history of breast cancer. Twenty-five years later, she underwent an elective partial hysterectomy to remedy a benign uterine fibroid condition.

At the pre-operative consultation for the hysterectomy, the defendant doctor explained to the plaintiff that, absent genetic testing, the woman did not appear to be at increased risk of ovarian cancer. The doctor did not see any reason to remove the woman’s ovaries so he advised against it. One year after surgery, the woman was diagnosed with late stage, terminal ovarian cancer. In her lawsuit, the plaintiff claimed that, if her ovaries had been removed at the time of the hysterectomy, then she would not have developed cancer.

In Downs, the Court stated that the chief salient distinction between a claim based on lack of informed consent and one based on medical negligence is that to prevail on an informed consent claim, a 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 injury.

Unlike a medical malpractice claim, a claim for lack of informed consent is determined by a lay standard of materiality, rather than an expert medical standard of care. By contrast, to find for the plaintiff in a medical negligence claim, the jury must determine that the defendant fell short of the prevailing professional standard of care.

As a result of these differing standards, expert testimony establishing the professional standard of care is ordinarily required to prove medical negligence, but such testimony regarding professional norms is not relevant to the question of whether a physician’s disclosure satisfies the lay “materiality” test. That is not to say that expert testimony must be excluded from informed consent cases.

In Downs, the court noted that a physician who fails to apprise a patient of a certain fact may therefore, in appropriate circumstances, be held liable for failing to know the fact in the first place (medical negligence) and for failing to convey the fact to the patient for his or her consideration in making medical treatment decisions (lack of informed consent).

Juror Misconduct

Sawicki v. New Britain General Hosptial, 302 Conn. 514 (2011), involved two issues: the proper standard to be employed in the analysis of a juror misconduct claim; and, whether the trial court abused its discretion.

The case involved a claim of a failure to properly and promptly diagnose Brenda Sawicki’s breast cancer. On the second day of trial, Juror M sent a note asking to speak to the judge. Upon questioning, Juror M stated that he was biased against the plaintiff owing to the fact that the plaintiff had not sought a second opinion regarding her breast sonogram. The court reminded Juror M not to engage in pre-deliberation discussions and to keep an open mind. Juror M, as well as others engaged in discussions of the case prior to deliberations. In its post-verdict decision, the trial court found that although juror misconduct had occurred, the plaintiff had not met her burden of showing prejudice.

After defining the type of evidence that may be considered in impeaching a jury’s verdict in light of the applicable objective standard, the Supreme Court held that given “the pervasive and egregious improper pre-deliberation discussions, we conclude that it is probable that one or more jurors viewed the evidence in an unfair and prejudicial manner.”•