Borkowski v. Sacheti, 14181

CourtAppellate Court of Connecticut
Writing for the CourtBefore DUPONT; HEALEY
Citation43 Conn.App. 294,682 A.2d 1095
PartiesMarcella D. BORKOWSKI, Administratrix (ESTATE OF Anthony BORKOWSKI), et al. v. Chandra K. SACHETI.
Docket NumberNo. 14181,14181
Decision Date20 November 1996

Page 1095

682 A.2d 1095
43 Conn.App. 294
Marcella D. BORKOWSKI, Administratrix (ESTATE OF Anthony
BORKOWSKI), et al.
Chandra K. SACHETI.
No. 14181.
Appellate Court of Connecticut.
Argued April 2, 1996.
Decided Oct. 1, 1996.
Certification Denied Nov. 20, 1996.

Page 1097

James H. Howard, with whom on the brief, was David R. Kritzman, Manchester, for appellant (plaintiff).

Denise Martino Phelan, with whom were Andrew J. O'Keefe and, on the brief, Maureen Sullivan Dinnan, Hartford, for appellee (defendant).


HEALEY, Judge.

The plaintiff appeals from the judgment for the defendants, after a jury trial, in this medical malpractice action. The action was brought by Marcella D. Borkowski as administratrix of the estate of her deceased husband Anthony Borkowski (the decedent) against Chandra K. Sacheti, a cardiologist. The amended complaint is in three counts with both the first and second counts alleging in part that this is a "negligence action and statutory action [brought] pursuant to Conn. Gen.Stat. § 52-555." 1 The third count was brought by the plaintiff individually and sought damages for loss of [43 Conn.App. 296] consortium. 2 The first count alleges that the decedent's wrongful death was caused by the malpractice of Sacheti, his agents or employees. 3 The second count alleges that the negligence of Sacheti, his agents or employees caused the decedent to suffer "a lost or decreased chance of survival." We hereafter refer to the second count as the plaintiff's "loss of chance" claim. The trial court submitted the first and third counts 4 to the jury, which returned a verdict for the defendant on each of those counts. 5 It declined to submit the second count to the jury, opining that there is no cognizable cause of action in Connecticut for recovery on the "loss of chance" theory alleged in that second count. Later, the trial court denied the plaintiff's motions to set aside the verdict and for a new trial. This appeal followed.

On appeal, the plaintiff claims that the trial court improperly (1) refused to charge the jury on the second count, which sought compensation for a "lost or decreased chance" of survival, (2) permitted the defendant to introduce evidence of contributory negligence [43 Conn.App. 297] when contributory negligence had not been pleaded and (3) refused to charge the jury that the decedent had exercised reasonable care in attending to his health care needs.

In order to put what follows into context, we set out certain facts that the jury could reasonably have found. The decedent died on October 24, 1987, after suffering a myocardial infarction and being admitted to Rockville General Hospital. The decedent was forty-seven years of age at that time and had a history of heart problems. On August 6, 1985, he had sustained a myocardial infarction and the subsequent diagnosis was that of

Page 1098

chronic stable angina pectoris. He was under the care of Sacheti from 1985 until some time in 1987. During that period, he was treated with medication. The decedent was employed as the business manager at Manchester Community College. He was married and had one son about twelve years of age.

The last time prior to the decedent's going to Rockville General Hospital on October 22, 1987, that Sacheti had seen or spoken to him was on April 30, 1987. On that occasion, Sacheti had examined him during a scheduled office visit. The decedent had also undergone a stress test in that office on that date. At that time, Sacheti told him that this stress test was "more significant" than his September, 1985 stress test, commenting that this latest stress test was "abnormal." Sacheti discussed the matter with him on April 30, 1987, and told the decedent that it was his feeling that the decedent should have an angiogram and that when he came in for his next scheduled visit "we will schedule the angiogram." Sacheti told the decedent: "[Y]ou really need a cardiac [catheterization], think it over."

The decedent's next scheduled visit was set for June 24, 1987. He did not appear at the Sacheti's office on June 24, 1987, nor did he contact that office concerning [43 Conn.App. 298] that appointment. In keeping with established office policy regarding a "no show" appointment, an attempt to contact the no show by telephone was presumably made and was followed two weeks later by an appointment card. On Sunday, October 18, 1987, the decedent told the plaintiff that, while taking his usual walk that day, he felt some shortness of breath and was not feeling well. He did not call the Sacheti's office that day. The decedent did not come to the office nor did he contact Sacheti's office until October 19, 1987. The decedent was on vacation during the week of October 19, 1987. The plaintiff was at home recuperating from gall bladder surgery.

At this point, we refer to certain circumstances claimed by the plaintiff as surrounding the telephone calls the decedent allegedly made to Sacheti's office starting on October 19, 1987, all of which Sacheti vigorously denied ever took place. Those circumstances include the following claims of the plaintiff. On Monday, October 19, 1987, the decedent dressed, ate and drove his son to school. The plaintiff claimed that on that day the decedent called Sacheti's office, 6 spoke to one of Sacheti's employees and complained of his shortness of breath during his walk on October 18 and that an appointment was then made for Monday, October 26, 1987. On Tuesday, October 20, 1987, he got up, prepared and ate his breakfast and drove his son to school. He did not complain to anyone that day that he was having any problems. On Wednesday, October 21, 1987, the decedent got up, drove his son to school and then drove the plaintiff to her medical appointment. He told the plaintiff that he "was feeling anxious" and she suggested [43 Conn.App. 299] that he try to have his October 26 appointment moved up. The plaintiff claimed that the decedent called Sacheti's office and asked that his appointment be moved up. In doing so, he did not ask to speak to Sacheti. On October 21, his appointment of October 26 was moved up to Friday, October 23.

Chronologically, we now come to further events disclosed by the evidence. On Thursday, October 22, 1987, the decedent got up and drove his son to school. He was home until leaving sometime between 4 and 5 p.m. to do some errands for the plaintiff and to buy some batteries for his son. While he was out he encountered a friend and made tentative arrangements for that evening to go to that friend's house, some thirty minutes from his home, to watch a World Series game. Upon arriving home at about 7 p.m., he complained of a bad headache and, between 7:30 and 8 p.m., he called Sacheti's office. Sacheti's answering service answered the call. Shortly thereafter, the physician who was covering for Sacheti at that time telephoned the decedent. The decedent told the physician that he had chest pain radiating into his left arm. The physician advised

Page 1099

him to go to the emergency room at Rockville General Hospital. After taking a shower, the decedent went by ambulance to a hospital where he was admitted at 8:58 p.m. An electrocardiogram taken at that time showed that he had not had a heart attack, and he was started on thrombolytic treatment. At 10:40 p.m., however, about one and one-half hours after his admission, the decedent suffered cardiac arrest. He was successfully revived and remained in the hospital. On Saturday, October 24, 1987, the decedent again suffered cardiac arrest and died.

We first address the plaintiff's claim that the trial court improperly refused to charge the jury on the second[43 Conn.App. 300] count of her amended complaint, which sought compensation for a lost or decreased chance of the survival of the decedent. In doing so, she points out that the trial court refused to give her requested charge on the lost chance doctrine, maintaining that the trial court said that the doctrine was not a recognized cause of action in Connecticut.

The plaintiff argues that the lost chance doctrine is recognized in Connecticut and she points to LaBieniec v. Baker, 11 Conn.App. 199, 526 A.2d 1341 (1987), which she claims this court recognized such a cause of action. The defendant, while acknowledging in his brief that LaBieniec "did not relax the established standards for proximate cause," nevertheless, argued before us that the attorneys who briefed LaBieniec in this court had not addressed Professor Joseph H. King's widely cited Yale Law Journal article. J. King, "Causation, Valuation and Chance in Personal Injury Torts Involving Pre-existing Conditions and Future Consequences," 90 Yale L.J. 1353 (1981). 7 Had that been done, he argues, the "fundamental understanding" of what this cause of action entails would have demonstrated that "fundamentally in order to recognize this cause of action [one] would have to get into an alternative to the traditional rule of proximate cause." We note that, while instructive, Professor King's article does advocate an approach that was not adopted by the LaBieniec court.

In recent years, a growing line of cases, generally termed "loss of a chance" cases, has put a strain on the [43 Conn.App. 301] traditional causation analysis in medical malpractice cases. See comment, "Proving Causation in 'Loss of a Chance' Cases; A Proportional Approach," 34 Cath. U.L.Rev. 747 (1985). "In a loss of chance case, a tortfeasor, through his negligence, causes an individual to lose a chance to avoid some form of physical harm." Id., 749; Gooding v. University Hospital Building, Inc., 445 So.2d 1015 (Fla.1984) (loss of chance to survive ruptured abdominal aortic aneurysm); see, e.g., Cooper v. Sisters of Charity of Cincinnati, Inc., 27 Ohio St.2d 242, 272 N.E.2d 97 (1971) (loss of chance to live). The traditional standard of the sufficiency of the evidence for submitting a...

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