Shenefield v. Greenwich Hosp. Ass'n

• Decision Date: 24 March 1987
• Docket Number: 3976,Nos. 3972,s. 3972
• Citation: 522 A.2d 829,10 Conn.App. 239
• Parties: Eugene SHENEFIELD et al. v. GREENWICH HOSPITAL ASSOCIATION et al.
• Court: Connecticut Court of Appeals

Page 829

522 A.2d 829

10 Conn.App. 239

Eugene SHENEFIELD et al. v. GREENWICH HOSPITAL ASSOCIATION et al.

Nos. 3972, 3976.

Appellate Court of Connecticut.

Argued Oct. 9, 1986.

Decided March 24, 1987.

Gregory C. Willis, with whom, on the brief, was Jennifer M. Damon, Bridgeport, for the (named defendant).

Ronald D. Williams, Bridgeport, for the appellant (defendant Dovell N. Bonnett).

Joseph S. Jurewicz, Norwalk, with whom, on the brief, was Marylouise S. Black, West Redding, for the appellee (named plaintiff).

Before DUPONT, C.J., and HULL and SPALLONE, JJ.

DUPONT, Chief Judge.

These appeals, which were heard and decided together, arise out of a malpractice action brought by the plaintiffs, a husband and wife, ¹ against the defendants, a medical doctor and a hospital. A jury entered a general verdict in favor of the plaintiff husband against both defendants, and in favor of the plaintiff wife against the doctor only. The plaintiff husband was awarded $195,000 in damages and the plaintiff wife was awarded $1 in damages for loss of consortium. ²

The jury could have reasonably found the following facts. The plaintiff first consulted the defendant doctor in 1975 for the treatment of an enlarged prostate. He later consulted the doctor in 1977 because of urethral bleeding. He was advised by the doctor that he had a tumor. The surgical procedures of a retropubic prostatectomy and cystoscopy were subsequently recommended. The plaintiff consented to the proposed surgery, and was thereafter admitted to the defendant hospital. At the time, the plaintiff was sixty-seven years old and had five children.

Prior to the surgery, the defendant doctor brought a hospital consent form into the plaintiff's hospital room, but failed either to explain the form or to engage in any substantial conversation with the plaintiff. The consent form of the defendant hospital contained express instructions for hospital officers which required them specifically to include on the form the "names of operations involving loss of important functions, such as ... hysterectomy, vasectomy, tubal ligation, etc." In addition, the consent form contained language which gave the signer's permission for the prostatectomy and cystoscopy, and for any other additional procedures deemed advisable by the doctor following any unforeseen condition arising "before, during or after such operation." The plaintiff signed the consent form, and surgery was performed by the defendant doctor on the following morning.

The plaintiff later discovered that the defendant doctor had performed a bilateral vasectomy, without his knowledge or consent, as well as the proposed prostatectomy. In addition, he experienced impotency resulting from the prostatectomy. The plaintiff thereafter brought a complaint alleging negligence on the part of both the doctor and the hospital for failing to obtain any consent for the vasectomy, and for failing to obtain an informed consent for the prostatectomy because he was not told that impotency was one of its attendant risks. In his complaint, the plaintiff claimed injuries consisting of sexual sterilization, sexual impotency and emotional stress and anxiety.

The trial court submitted extensive interrogatories to the jury to aid it in reaching its verdicts. In answering the interrogatories, the jury found that the doctor failed to obtain either the plaintiff's consent to the vasectomy or his informed consent to the prostatectomy, and that such failures were a proximate cause of the plaintiff's injuries. The jury also found that the doctor was acting as the agent of the defendant hospital when he failed to obtain the plaintiff's consent to the vasectomy and when he failed to obtain an informed consent to the prostatectomy.

I

Three of the defendants' claims of error ³ challenge the trial court's charge to the jury. The defendants claim that the trial court erred in its charge to the jury on proximate cause because it instructed the jury that the plaintiff could prove proximate cause in either of two ways. In addition, the defendant hospital claims that the trial court erred in its charge to the jury on agency.

These challenges to the trial court's instructions to the jury, however, have not been presented properly in this court, and we therefore decline to consider them. See Henderson v. Levy, 183 Conn. 517, 518, 441 A.2d 10 (1981). Practice Book § 4065(d)(2) (formerly § 3060 F[d] provides that "[w]hen error is claimed in the charge to the jury, the brief or appendix shall include a verbatim statement of all relevant portions of the charge and all relevant exceptions to the charge. Evidence relevant to the claimed error shall be printed in narrative form with appropriate references to the page or pages of the transcript." The defendants' references in their briefs to pages of the trial transcript do not constitute compliance with this rule. Henderson v. Levy, supra. Moreover, our Supreme Court has recognized that "[i]t does not appear that a strict adherence to this rule will cause surprise or injustice; Practice Book § 3164 [now § 4187]; Savarese v. Hart, 183 Conn. 416, 418, 439 A.2d 386 (1981); especially when the claim of error relates to a matter which lies largely in the discretion of the trial court." Henderson v. Levy, supra, 183 Conn. at 518-19, 441 A.2d 10. ⁴

II

The defendants' next claim of error relates to the trial court's submission to the jury of special interrogatories. The defendants allege that such interrogatories incorporated conflicting standards of proximate cause which resulted in inconsistent answers by the jury, thereby necessitating that the verdict be set aside. ⁵ The defendants also claim that such interrogatories were lengthy and prejudicial, and that the trial court abused its discretion by submitting them to the jury.

Twelve interrogatories spanning sixteen pages were submitted to the jury in the present case. Interrogatories number 6(c) and 7(c) asked the jury if, in reaching the conclusion that the doctor's negligence was a proximate cause of the plaintiff's injuries, they found that "(1) plaintiffs proved that plaintiff Eugene Shenefield would not have undergone the operative procedure(s) performed on May 24, 1977 if he had been properly informed prior to the surgery? and/or that: (2) plaintiffs proved that a reasonable man in the plaintiff Eugene Shenefield's position would not have undergone the operative procedure(s) performed on May 24, 1977 if he had been properly informed prior to the surgery?" ⁶ The jury responded "yes" to the first question and "no" to the second question.

The defendants submit that the trial court erred in submitting both standards for causation to the jury, and that the answers given by the jury were clearly inconsistent. They rely upon the holding in Logan v. Greenwich Hospital Assn., 191 Conn. 282, 465 A.2d 294 (1983), as support for their claim. In Logan, the doctrine of informed consent was recognized as a basis for malpractice liability of a physician. The Logan court did not, however, expressly adopt a standard for demonstrating proximate cause. ⁷ The defendants claim that an objective standard should be adopted in this jurisdiction, and that the jury's finding that the plaintiff did not prove that a reasonable man in the same position would not have undergone the same procedures if he had been properly informed precluded the entry of a verdict for the plaintiff.

In essence, the defendants' claim is that the jury's verdict should be set aside because of its allegedly inconsistent answers to the trial court's special interrogatories. The role of an appellate court where an appellant seeks a judgment contrary to a general verdict on the basis of the jury's allegedly inconsistent answers to such interrogatories is extremely limited. See Belchak v. New York, N.H. & H.R. Co., 119 Conn. 630, 179 A. 95 (1935); Murteza v. State, 7 Conn.App. 196, 202-203, 508 A.2d 449, cert. denied, 200 Conn. 803, 510 A.2d 191 (1986). "To justify the entry of a judgment contrary to a general verdict upon the basis of answers to interrogatories, those answers must be such in themselves as conclusively to show that as a matter of law judgment could only be rendered for the party against whom the general verdict was found; they must negative every reasonable hypothesis as to the situation provable under the issues made by the pleadings; and in determining that, the court may consider only the issues framed by the pleadings, the general verdict and the interrogatories, with the answers made to them, without resort to the evidence offered at the trial." (Emphasis added.) Belchak v. New York, N.H. & H.R. Co., supra, 119 Conn. at 634, 179 A. 95. Thus, if any reasonable hypothesis may be formulated, the general verdict for the plaintiff is justified, despite any alleged inconsistency. Id., at 635, 179 A. 95. Moreover, in reviewing a motion to set aside a verdict, both the trial court and this court should give the most reasonably favorable construction to the evidence in order to sustain the verdict. Kalleher v. Orr, 183 Conn. 125, 126-27, 438 A.2d 843 (1981); Waldron v. Raccio, 166 Conn. 608, 618, 353 A.2d 770 (1974); Reilly v. DiBianco, 6 Conn.App. 556, 573, 507 A.2d 106, cert. denied, 200 Conn. 804, 510 A.2d 192 (1986). The trial court's refusal to set aside the verdict is therefore entitled to great weight, and every reasonable presumption should be given in favor of its correctness. Waldron v. Raccio, supra, 166 Conn. at 618, 353 A.2d 770.

In the present case, the plaintiff's amended complaint alleged that injury was suffered due to the negligence of the defendants in one or more of several ways. ⁸ The failure of the defendant doctor to obtain the informed consent of the plaintiff for the prostatectomy was but one of the grounds of negligence alleged by the plaintiff. Another ground alleged was the failure of the doctor , while acting as an agent of the defendant hospital, to...