Arroyo v. Univ. of Conn. Health Ctr.

• Decision Date: 15 August 2017
• Docket Number: AC 38701.
• Citation: 167 A.3d 1112,175 Conn.App. 493
• Court: Connecticut Court of Appeals
• Parties: Jose ARROYO, et al. v. UNIVERSITY OF CONNECTICUT HEALTH CENTER, et al.

175 Conn.App. 493

167 A.3d 1112

Jose ARROYO, et al.

v.UNIVERSITY OF CONNECTICUT HEALTH CENTER, et al.

AC 38701.

Appellate Court of Connecticut.

Argued May 16, 2017

Officially released August 15, 2017

Michael G. Rigg, for the appellants (defendants).

Michael J. Walsh, for the appellees (plaintiffs).

Alvord, Prescott and Pellegrino, Js.

PRESCOTT, J.

In this action seeking damages for medical malpractice relating to a vasectomy

, the defendants, the University of Connecticut Health Center (health center) and the state of Connecticut, appeal, following a bench trial, from the judgment of the trial court rendered in favor of the plaintiffs, Jose Arroyo and Marie Arroyo,¹ in the amount of $386,249.81.² The defendants claim that the court improperly (1) rendered judgment on a cause of action for which the plaintiffs had not obtained a waiver of sovereign immunity from the state's Claims Commissioner (commissioner),³ (2) awarded damages on a theory of liability that was not alleged in the plaintiffs' Superior Court complaint, and (3) concluded that the plaintiffs had satisfied their burden of proving that the defendants' employee, Peter Albertsen, a urologist, had negligently injured Arroyo's testicular artery. We disagree with the defendants' claims and, accordingly, affirm the judgment of the trial court.

The following facts, as found by the court, and procedural history are relevant to our resolution of the defendants' claims. On April 1, 2013, Arroyo underwent a vasectomy

performed by Dr. Albertsen at the health center. Immediately after the procedure, Arroyo suffered pain that continued, unabated, for several days. Subsequently, on April 4, 2013, he went to the emergency room at Saint Francis Hospital and Medical Center (hospital), where it was discovered that his left testicle was necrotic⁴ because of a lack of blood flow through the testicular artery. This required Arroyo to undergo an orchiectomy, or surgical removal of the testicle, that same day. The surgery was performed by Dr. Marlene A. Murphy–Setzko, a urologist at the hospital. This procedure resulted in discomfort and pain for Arroyo from protruding sutures and infection, which, in turn, required him to undergo further treatments over a period of five months.

Sovereign immunity generally prevents a litigant from suing the state for money damages without its consent. See Morneau v. State , 150 Conn.App. 237, 246, 90 A.3d 1003, cert. denied, 312 Conn. 926, 95 A.3d 522 (2014). Thus, in order to obtain permission to sue the defendants for money damages, the plaintiffs filed a notice of claim on September 13, 2013, with the commissioner pursuant to General Statutes § 4–147.⁵ The notice was accompanied by a certificate of good faith, as required in medical malpractice claims brought against the state pursuant to General Statutes § 4–160 (b),⁶ which provides in relevant part: "In any claim alleging malpractice against the state, a state hospital or against a physician, surgeon ... or other licensed health care provider employed by the state, the attorney or party filing the claim may submit a certificate of good faith to the Claims Commissioner in accordance with section 52–190a. If such a certificate is submitted, the Claims Commissioner shall authorize suit against the state on such claim."

In their notice of claim filed with the commissioner, the plaintiffs alleged that "[d]uring the procedure Dr. Albertsen failed to identify, dissect and ligate the vas deferens, but instead he incorrectly dissected and ligated surrounding vascular structures thereby depriving, restricting and severing blood flow to [Arroyo's] left testicle." In an order dated November 6, 2013, the commissioner granted the plaintiffs permission to sue the defendants.

Subsequently, the plaintiffs commenced the present action against the defendants in Superior Court on January 29, 2014.

The complaint, which was accompanied by a certificate of good faith as required by General Statutes § 52–190a,⁷ contained two counts, the first sounding in medical malpractice on behalf of Arroyo and the second sounding in loss of consortium on behalf of Marie.

Count one mirrored the language used in the notice of claim filed with the commissioner, alleging that "Dr. Albertsen failed to identify, dissect and ligate the vas deferens, but instead he incorrectly dissected and ligated surrounding vascular structures, thereby depriving, restricting and severing blood flow to the plaintiff's left testicle." It also alleged that Dr. Albertsen was negligent in one or more of six ways, those being that he failed "[1] to properly identify the anatomy of the testicle, both before and during the procedure, by all means available to him, including palpation and visualization, to ensure that he adequately identified the spermatic cord and the vas deferens prior to his attempt to dissect the vas deferens ... [2] to properly isolate and free the vas deferens from the surrounding anatomical structures prior to attempts to dissect the vas deferens ... [3] to properly confirm that he had, in fact, identified the vas deferens by all means available to him, including palpation and visualization, before his attempts to dissect the vas deferens ... [4] to dissect and ligate the vas deferens, and instead he incorrectly dissected and ligated surrounding blood vessels and vascular structures, thereby depriving, restricting and severing blood flow to the left testicle ... [5] to timely and properly realize that he had, in fact, failed to dissect the vas deferens, but instead had dissected vascular structures in the testicle, and proceeded to conclude the procedure and discharge the patient from the facility; and ... [6] to properly respond to and investigate the patient's repeated complaints of unusual and inordinate pain, both during and following the procedure in question, which investigation in all likelihood would have led him to the realization that he had failed to sever and dissect the appropriate vas deferens and instead severed and dissected vascular structures necessary for the continued viability of the left testicle."

The case progressed to pretrial discovery. During this time, the plaintiffs disclosed Dr. Michael Brodherson as their expert witness, and the defendants disclosed Dr. Wayne Glazier as their expert witness. The parties deposed both experts prior to trial.

Thereafter, on November 4, 2015, the trial commenced. The court heard testimony from several witnesses, including Dr. Albertsen, Dr. Brodherson, and Dr. Glazier. The evidence showed that during Arroyo's vasectomy

, Dr. Albertsen failed to properly identify, dissect, and ligate the vas deferens in the left testicle and, instead, dissected and ligated a section of "vascular structures." There was no disagreement that the blood flow to the left testicle had been obstructed at the time that Arroyo was seen by Dr. Murphy–Setzko at the hospital on April 4, 2013, and that the loss of blood flow caused the necrosis of Arroyo's testicle. Rather, the parties disputed the cause of the injury. The plaintiffs argued that the injury to the testicular artery occurred during the vasectomy

on April 1, 2013, and the defendants argued that testicular torsion⁸ caused the loss of blood flow, meaning that the injury occurred sometime after the vasectomy, between April 1 and 4, 2013.

In a short memorandum of decision dated November 19, 2015, the court rendered judgment in favor of the plaintiffs. Specifically, the court concluded that the plaintiffs had established by a fair preponderance of the evidence that Dr. Albertsen was negligent in his treatment of Arroyo in that he "deviated from the standard of care of a board certified urologist in not isolating the vas deferens and [thereby] injuring the testicular artery to the left testicle of [Arroyo] during his performance of a vasectomy

...." This appeal followed.⁹

Additional facts and procedural history will be set forth as necessary.

I

The defendants claim for the first time on appeal¹⁰ that the court improperly rendered judgment for the plaintiffs on a theory of liability materially different from that which was alleged in their notice of claim filed with the commissioner and, thus, from that which they had received a waiver of sovereign immunity. Specifically, the defendants argue that in alleging that Dr. Albertsen "dissected and ligated ... vascular structures, thereby ... severing blood flow to [Arroyo's] left testicle," the "vascular structure" to which the plaintiffs must have been referring in their notice of claim was the testicular artery because the only "vascular structure" that could have resulted in a lack of blood flow to the testicle was the testicular artery. The defendants then reason that because the plaintiffs' theory of liability presented at trial was that Dr. Albertsen dissected and ligated a vein , not the testicular artery, and injured the nearby testicular artery in turn by unintentionally cauterizing¹¹ it, the plaintiffs did not obtain a waiver of sovereign immunity for the claim presented to the court.¹² We disagree.

"The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law." (Internal quotation marks omitted.) Morneau v. State , supra, 150 Conn.App. at 246, 90 A.3d 1003. Therefore, "[o]ur Supreme Court expressly has stated that a plaintiff seeking monetary damages against the state must first obtain authorization from the Claims Commissioner." Id., at 248, 90 A.3d 1003. Section 4–147 provides in relevant part: "Any person wishing to present a claim against the state shall file with the Office of the Claims Commissioner a notice of claim ... containing the following information: (1) The name and address of the claimant; the name and address of his principal, if the claimant is acting in a representative capacity, and the name and address of his attorney, if the claimant is so represented; (2) a concise statement of the basis of the claim , including...