Burns v. Hanson

Decision Date03 August 1999
Docket Number(SC 15962)
Citation734 A.2d 964,249 Conn. 809
CourtConnecticut Supreme Court
PartiesPATRICIA BURNS ET AL. v. THOMAS M. HANSON ET AL.

Callahan, C. J., and Borden, Berdon, Norcott, Palmer, McDonald and Peters, Js. Howard K. Goldstein, pro hac vice, with whom were Kenneth J. McDonnell and, on the brief, Andrew S. Kessler, pro hac vice, for the appellant (named plaintiff).

Mark R. Kravitz, with whom was Kevin C. Shea, for the appellees (defendants).

Opinion

PETERS, J.

The issues in this action for negligence and medical malpractice arise out of the birth of a healthy child to a severely disabled mother, who, in accordance with medical advice, had decided not to have another child. Specifically, we must decide the propriety of a pretrial ruling that struck a count in the named plaintiffs complaint. We also must consider whether jury instructions and evidentiary rulings, during the trial, impaired full jury consideration of her claims for recovery.

The named plaintiff, Patricia Burns (plaintiff), brought this action for negligence and medical malpractice against the defendants, her gynecologist, Thomas M. Hanson, and his practice group, Gynecology and Infertility, P.C.1 The plaintiff, who suffers from progressive multiple sclerosis, alleged that the defendant, in various respects, had provided her with negligent medical treatment. Among her specific allegations, the plaintiff asserted that the defendant, knowing both of her condition and that it was medically undesirable for her to become pregnant, incorrectly advised her that she was sterile and failed to diagnose her pregnancy after an examination early in her second trimester. In her initial amended complaint, the plaintiff sought damages for, inter alia: (1) her physical injury, including carrying a pregnancy to term, giving birth, and aggravation of her multiple sclerosis; (2) her pain and emotional distress; (3) her inability adequately to attend to the parenting of her child; and (4) her costs in caring for the child.2

Prior to trial, the trial court, Stanley, J., struck count two of the plaintiffs complaint, which pertained to the defendant's alleged liability for the costs of raising a healthy child. The plaintiff accordingly amended the complaint that went to the jury by deleting that count in its entirety. The trial court, Arena, J., instructed the jury in accordance with Judge Stanley's ruling.

The jury heard testimony relating to the circumstances both of the alleged advice about sterility and the alleged failure to diagnose the plaintiffs pregnancy. Although the defendant conceded that he failed to diagnose the plaintiffs pregnancy, the jury returned a verdict in his favor.3 The plaintiff appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-1 and General Statutes § 51-199 (c). We reverse the judgment of the trial court.

I FACTUAL HISTORY

The facts concerning the plaintiffs medical condition are largely undisputed. The plaintiff suffers from a chronic, progressive form of multiple sclerosis. She began experiencing the symptoms of her disease in 1980. At the time of the trial in 1997, her condition had so deteriorated that she was confined to a wheelchair and had only limited use of her arms. Her illness has caused the plaintiff to have blurred vision, ringing in her ears, weakness in her arms, coordination problems in her hands, numbness in her legs, bladder and periodic bowel incontinence, and frequent, severe fatigue. During 1985, she became unable to breathe on her own and had to relearn how to do so. By the time of trial, she was unable to drive, to move up stairs without crawling on all fours, or to leave her house without assistance. The plaintiff relied on a home health aide to assist her with personal care such as bathing, oral hygiene, dressing and eating. The defendant was aware of her condition.

By early 1992, because of the progression of the plaintiffs multiple sclerosis, the plaintiff and her husband decided not to have a second child. Three years earlier, her neurologist in fact had advised her not to have more children, in light of her disabled condition and her difficulty in functioning.

The defendant was the plaintiff's regular gynecologist throughout this time. He prescribed and adjusted the medical devices that she used to prevent pregnancy. Late in 1991, he advised the plaintiff to consider having a tubal ligation "as a pregnancy might further exacerbate her [multiple sclerosis]." In a letter dated one month later, the defendant reiterated that advice and noted that, in his opinion, "it [was] medically contraindicated that [the plaintiff] ever become pregnant... [and that] a tubal ligation is indicated."4

In May and June, 1992, in an effort to slow the progression of her multiple sclerosis, the plaintiff participated in a radiation treatment program at the Yale School of Medicine (Yale). Because of the risks of radiation in pregnancy, the plaintiff, as a program participant, agreed to practice birth control for four years following the treatment.

The Yale program advised participants that they had a 10 percent chance of becoming sterile as a result of the treatment. The plaintiff welcomed the possibility of sterility. The defendant knew of the plaintiff's participation in the radiation therapy program and was aware of the risk of radiation therapy in pregnancy.

After receiving radiation treatment at Yale in May, 1992, the plaintiff ceased having her menstrual periods, which previously had been regular. She consulted the defendant about her amenorrhea. He diagnosed her condition as estrogen deficiency and prescribed treatment accordingly.

The parties differ in their recall about whether, during two separate office visits relating to her amenorrhea, the plaintiff discussed the possibility of her sterility with the defendant. The plaintiff claims that the defendant told her that she had become sterile. The defendant claims that sterility was never discussed.

The plaintiff became pregnant when, thinking that she had become sterile, she and her husband ceased using birth control for the first time in a decade. In April, 1993, when she was fourteen or fifteen weeks pregnant, the plaintiff consulted the defendant in accordance with an appointment schedule that previously had been arranged. The defendant observed breast tenderness, and performed a pelvic examination on the plaintiff, but did not diagnose her pregnancy at that time. According to the defendant, he failed to make an accurate diagnosis not because of negligence on his part but because the plaintiff was taking medication that could cause breast tenderness and had failed to provide him with information about experiencing other signs of early pregnancy, such as weight gain and bloating. Expert testimony on behalf of the plaintiff at trial indicated that the defendant's care of the plaintiff, both in telling her that she was infertile and in failing to diagnose her pregnancy, fell below the accepted standard of obstetrical and gynecological care.

Two months later, in June, 1993, the plaintiffs internist discovered that the plaintiff was twenty to twent-one weeks pregnant. The plaintiff did not have an abortion at that time. On October 27, 1993, the plaintiff gave birth to a healthy daughter, whom the plaintiff loves dearly.

From the time of the child's birth, the plaintiff has been unable to drive, clean the house, shop, do laundry, or prepare meals. Owing to her lack of mobility, she is unable to assist her child with basic tasks, such as bathing or preparing for bed. In several instances, she has been unable to remove the child from dangerous situations, such as running into the street. The plaintiff's husband assists in caring for the child, but he works eighty hours a week outside of their home.

The jury returned a verdict for the defendant, upon which the trial court rendered judgment after denying the plaintiff's motion to set the verdict aside. The verdict form stated only: "We, the Jury, find the issues in favor of the Defendants, Thomas M. Hanson, M.D. and Gynecology and Infertility, P.C." This appeal followed.

II APPELLATE CLAIMS

On appeal, the plaintiff argues that the judgment should be reversed because the trial court improperly: (1) in a pretrial ruling, excluded any claim for recovery of the costs of raising a healthy child; (2) in accordance with the pretrial ruling, instructed the jury that the birth of a healthy child does not give rise to compensable injury; (3) excluded, as speculative, testimony from the plaintiff on whether she would have terminated her pregnancy at fourteen weeks if she had known of it then; (4) instructed the jury that the plaintiff had a duty to mitigate her damages; (5) instructed the jury to deduct, from damages to which the plaintiff might otherwise be entitled, an amount representing the benefits conferred on the plaintiff by having a healthy child; and (6) precluded the plaintiff from offering evidence of economic damages for the period between the child's birth and the time of trial. We agree that the plaintiff is entitled to a new trial. Accordingly, we reverse the judgment of the trial court.

III THE PLAINTIFF'S SUBSTANTIVE LAW CLAIM

The first issue that we address is the pretrial ruling of the trial court, Stanley, J., that Connecticut does not recognize a right to recover damages arising from the birth and rearing of a healthy child, even when the child was born as a result of negligent medical advice and medical care. In the second count of her amended complaint, the plaintiff had sought to recover such damages because of the defendant's alleged negligence in advising her that she had become sterile and in failing to diagnose her pregnancy early in her second trimester. The plaintiff claimed, in count two, that as a consequence of the defendant's alleged negligence, she "gave birth to a...

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    • United States
    • Connecticut Supreme Court
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  • State v. T.R.D.
    • United States
    • Connecticut Supreme Court
    • March 25, 2008
    ...We also address the merits of the state's second and third claims because they are likely to arise on retrial. See Burns v. Hanson, 249 Conn. 809, 830, 734 A.2d 964 (1999). Because we do not believe that the defendant's claim of prosecutorial impropriety is likely to arise on retrial, we do......
  • Filippelli v. Saint Mary's Hosp.
    • United States
    • Connecticut Court of Appeals
    • April 2, 2013
    ...its admissibility, thereby creating an adequate record for appellate review.” (Internal quotation marks omitted.) Burns v. Hanson, 249 Conn. 809, 824, 734 A.2d 964 (1999). A court may not prevent a party from creating an adequate record for review by means of an offer of proof. See State v.......
  • Rich v. Foye
    • United States
    • Connecticut Superior Court
    • August 28, 2007
    ...would impair the exercise of a constitutionally protected right." (Citations omitted.) Id., at 258, 445 A.2d 883. In Burns v. Hanson, 249 Conn. 809, 734 A.2d 964 (1999), the plaintiff, the mother of one child, had multiple sclerosis (MS) and was advised that any future pregnancy could be de......
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1 books & journal articles
  • 1999 Connecticut Appellate Review
    • United States
    • Connecticut Bar Association Connecticut Bar Journal No. 74, 1999
    • Invalid date
    ...M. Cormier, 1997 Connecticut Appellate Review, 72 CONN.B.J. 1, 2-8 (1998). 50. 248 Conn. 508, 729 A.2d 740 (1999). 51. Id. at 542-43. 52. 249 Conn. 809, 734 A.2d 964 53. Id. at 837, 839. Other interesting McDonald dissents are in DeMaria v. DeMaria, 247 Conn. 715, 724 A.2d 1088 (1999), wher......

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