Due to an editor’s error, the following article was accidentally omitted from the Connecticut Supreme Court Year In Review section published in the September 30 issue of the Connecticut Law Tribune.
In the arena of claims against health care providers, the Supreme Court wrestled with a variety of issues, including whether or not a plaintiff had to prove that the hospital had prior knowledge of its pedophilic doctor’s deviant sexual tendencies; whether a third party may bring a claim against a physician for his failure to inform his patient of risks associated with her condition; and whether an expert witness can spout off in court about tort reform and jurors must be forewarned about media coverage.
Add to that a couple of cases concerning lay opinion on causation, novel evidentiary rulings and a certificate of good faith case, and it is clear that this was an active, developmental year.
The horrific facts of Doe v. St. Francis Hospital and Medical Center, 309 Conn. 146 (2013), are well-known to many Connecticut residents. Beginning in 1964 and for decades thereafter, Dr. George Reardon purported to conduct a “child growth study” under the auspices of, and on the premises of, his employer, St. Francis Hospital. The ostensible purpose was to measure the growth rates of normal children to assist in the treatment of children with abnormally low rates of growth. In fact, Reardon was a pedophile and child pornographer who used the so-called study as a ruse to recruit and sexually exploit hundreds of unsuspecting children. The named plaintiff was one of those children. He brought this action against the hospital alleging, first, that the hospital negligently had failed to supervise Reardon’s activities in connection with the study and, second, that the hospital had breached the special duty of care that it owed to children in its custody. The defendant appealed the jury verdict in favor of the plaintiff, making several claims of instructional error.
In the 5 to 1 decision, Justice Richard Palmer’s exegesis on duty resolved in a statement of the following principle: “As this and many other courts have recognized, when a defendant’s conduct creates or increases the risk of a particular harm and is a substantial factor in causing that harm, or when the defendant otherwise has a legally cognizable duty to aid or protect another person, the fact that the harm is brought about by the actions of a third party does not relieve the defendant of liability, even though the third party’s conduct is criminal, if the harm that occurred is within the scope of the risk created by the defendant’s conduct or reasonably could have been anticipated in light of the defendant’s duty to protect. Thus, when the harm resulting from the criminal misconduct of a third party is foreseeable in view of the facts and circumstances presented, there is no reason why the injured party should nevertheless be required to establish that the defendant had actual or constructive knowledge of the third party’s criminal propensity.”
Also in Doe, the court noted a particularly important evidentiary principle. It is generally true that a violation of an employer’s work rules can be viewed as evidence of negligence, but such a violation does not establish the applicable duty of the hospital to its patients, since hospital rules, regulations and policies do not themselves establish the standard of care. However, after the plaintiff’s expert testified in Doe that the hospital’s bylaws did in fact represent the standard of care, the defendant was not entitled to an instruction on the inapplicable general principle.
Meanwhile, in Jarmie v. Troncale, 306 Conn. 578 (2012), the court reached the opposite conclusion that no duty existed. The specific holding of this decision was that a physician who fails to advise an unaware patient of the potential driving risks associated with her underlying medical condition does not owe a duty to the victim of the patient’s unsafe driving because of the failure to advise. But the larger implications of this decision are that third party claims against a doctor will not be recognized in this state, except in the narrow setting of a psychotherapist’s duty to a third party harmed by a patient. See Fraser v. United States, 236 Conn. 625 (1996).
Analyzing this case from both perspectives of a medical malpractice and an ordinary negligence claim, Justice Peter Zarella shot down the plaintiff’s causes of action. Viewed as a malpractice case, the court held that the plaintiff’s complaint was legally insufficient because it contained no allegations that the plaintiff and the defendant doctor had a physician-patient relationship as required under Connecticut’s medical malpractice law. As an ordinary negligence claim, the court held that the defendant doctor owed no duty to the plaintiff in this case because Connecticut precedent did not support it, the plaintiff was an unidentifiable victim, public policy considerations counseled against it, and there was no consensus among courts in other jurisdictions, which have considered the issue only rarely.
In his dissent, Justice Dennis Eveleigh did not buy what the majority was selling. His interpretation of Connecticut law was that the plaintiff had amply stated a cause of action in ordinary negligence. Under the specific facts of this case, he would conclude that the defendant doctor owed a duty to his patient to warn her of the potential risks associated with her underlying medical condition as they related to routine activities such as driving. The defendant’s breach of the duty to his patient, in turn, constituted a breach of duty to the injured third party in the present case who was struck by the patient’s car after she blacked out while driving.
In Downs v. Trias, 306 Conn. 81 (2012), the court explored the nexus between claims of medical negligence and lack of informed consent. The issue presented was whether a physician, in failing to provide a patient with information, may incur liability for falling short of the professional standard of care. The court’s answer was a resounding “Yes.” A physician has both a professional duty to possess or obtain certain medical knowledge, as well as a duty — judged by a lay standard — to communicate the risks, benefits and alternatives of a contemplated procedure to his patient. A physician who fails to apprise his patient of certain facts may, therefore, be held liable for his failure to know the information in the first place (traditional medical negligence) and for his failure to convey that information to the patient (lack of informed consent.) In other words, under certain circumstances, the same set of facts, may give rise to two distinct, but complementary, causes of action.
In 1981, Allison Downs was a young woman with an extensive family history of breast cancer. Without ever having been diagnosed with the disease she underwent a bilateral mastectomy in order to reduce her future risk. In 2005, Downs developed uterine fibroid tumors, a painful but noncancerous condition. At a pre-operative consultation, Dr. Orlito Trias recommended that Downs have her uterus removed, but that she retain her cervix and ovaries. While he was aware of her family history of breast cancer, Dr. Trias explained that unless supplemented by genetic testing that the plaintiff had not undergone, her family history did not point to an increased risk of ovarian cancer.
Downs followed Dr. Trias’ advice and did not have her ovaries (or cervix) removed. But one year after the 2005 surgery, she was diagnosed with late stage terminal ovarian cancer that had spread to her abdomen. The plaintiff’s evidence established that at the time of her hysterectomy in 2005, she did not have ovarian cancer and, had her ovaries been removed prophylactically at that time, she would not have developed ovarian cancer.
In the malpractice action, the court held that the plaintiff’s allegations concerning the doctor’s failure to provide information and recommendations concerning ovarian cancer could properly be construed as describing specific instances of a broader theory that the defendant failed to provide proper medical treatment. Thus, the trial court properly admitted expert testimony concerning the professional medical standard of care and properly instructed the jury on a theory of medical negligence. Finally, the court also held that — on the issue of causation — the plaintiff was appropriately allowed to testify on the basis of personal knowledge and life’s experiences regarding the choices she would have made had she been properly informed of the increased risk of ovarian cancer by the defendant.
In Kervick v. Silver Hill Hospital, 309 Conn. 688 (2013), the Supreme Court exercised its supervisory authority in order to minimize the probability of juror exposure to media coverage of a case. In the future, all trial judges in this state are directed to enforce the following policy: “Immediately after each juror is selected, he or she must be instructed by the court, either orally or in a written order from the presiding judge, which the juror must read and sign before leaving the courthouse, that: 1) his or her sworn duty as a juror will be to decide the factual issues of the case for which he or she has been selected based only upon the evidence presented at trial; 2) consistent with that duty, he or she must avoid all publicity about the case and all communications to or from anyone about the case or any issues arising in it; and 3) if he or she is exposed to any such publicity or communications despite his or her best efforts to follow this instruction to avoid it, he or she must immediately inform the court about the exposure in writing …so that the court can follow up, as necessary, with him or her and/or other jurors, to protect the parties’ right to a fair trial.”
In the per curiam decision Pin v. Kramer, 304 Conn. 734 (2012), the Supreme Court affirmed the Appellate Court’s holding that prohibited the defendant’s expert orthopedic surgeon from erupting in court his concerns about malpractice claims, the need to practice “defensive medicine” to avoid such claims, how this trend was leading to the increased cost of medicine and was forcing physicians to leave the profession. The justices held that the thrust of this testimony was prejudicial because it drew the jury’s attention to the claimed economic and professional hardships faced by doctors due to claims made against them.
Finally, continuing along the now well worn road of Connecticut General Statutes§ 52-190a, the certificate of good faith statute, the Supreme Court worked with a convoluted factual and procedural scenario in Santorso v. Bristol Hospital, 308 Conn. 338 (2013), to articulate some guiding principles. First, the granting of a motion to dismiss, rather than a motion to strike, is the proper statutory remedy for deficiencies under § 52-190a. Second, the failure to file an opinion letter, or the providing of an insufficient opinion letter, constitutes insufficient process, which implicates personal jurisdiction over the defendant.
Third, a decision granting a motion to dismiss terminates only the existing action and is not a decision on the merits; thus, res judicata will not bar a second action. Fourth, a dismissal under § 52-190a is without prejudice and relief may be available under the accidental failure of suit statute, § 52-592. Fifth, but in order to meet the “matter of form” requirement of the saving statute, the plaintiff’s failure to file the appropriate good faith materials must have occurred due to circumstances such as mistake, inadvertence or excusable neglect. •