Carusillo v. Associated Women's Health Specialists, PC

• Decision Date: 23 September 2003
• Docket Number: (AC 21604)
• Citation: 79 Conn. App. 649,831 A.2d 255
• Court: Connecticut Court of Appeals
• Parties: ALLISON CARUSILLO ET AL. v. ASSOCIATED WOMEN'S HEALTH SPECIALISTS, P.C.

79 Conn. App. 649

831 A.2d 255

ALLISON CARUSILLO ET AL. v. ASSOCIATED WOMEN'S HEALTH SPECIALISTS, P.C.

(AC 21604)

Appellate Court of Connecticut.

Argued March 24, 2003.

Officially released September 23, 2003.

Foti, Dranginis and Flynn, Js.

William F. Gallagher, with whom, on the brief, was Roger B. Calistro, for the appellants (plaintiffs).

Eugene A. Cooney, for the appellee (defendant).

Opinion

DRANGINIS, J.

This case is before us on remand from our Supreme Court. Carusillo v. Associated Women's Health Specialists, P.C., 262 Conn. 920, 812 A.2d 861 (2002). The plaintiff Allison Carusillo¹ appealed to this court from the judgment of the trial court rendered in favor of the defendant, Associated Women's Health Specialists, P.C., after the granting of the defendant's motion to set aside the jury's verdict and damages award. We determined that the court improperly granted the defendant's motion because expert testimony may be based on inadmissible hearsay as long as the expert's opinion is based on reliable information and the expert witness has sufficient experience to evaluate the information. Our Supreme Court granted the defendant's petition for certification to appeal and, in the same order, remanded the case to us for consideration of the defendant's alternate grounds for affirmance. Those alternate grounds for affirmance are that the plaintiff (1) did not present sufficient evidence of the appropriate standard of care for an operative vaginal delivery, and (2) failed to prove that the defendant did not act in accordance with that standard, and that such failure was a proximate cause of the plaintiff's injuries. We reject the defendant's alternate grounds for affirmance of the trial court's judgment.

The underlying facts and procedural history of this case are fully set forth in our opinion in Carusillo v. Associated Women's Health Specialists, P.C., 72 Conn. App. 75, 76-83, 804 A.2d 960, remanded, 262 Conn. 920,812 A.2d 861 (2002). The following summary of the facts is necessary to resolve the defendant's alternate arguments. On October 6, 1994, the plaintiff went to Waterbury Hospital to deliver her first child. At approximately 5:30 p.m., after the plaintiff had been pushing for two hours, Janet Vodra, the delivering obstetrician-gynecologist employed by the defendant medical practice, did an internal examination and determined that the baby was at a "plus two" station.² Because there was little or no progress in the baby's descent within the birth canal, Vodra decided to use a vacuum extractor to get the baby's head to come out of the womb.³ After repeated attempts with the vacuum extractor, the baby's head was delivered. The baby's shoulder, however, became stuck behind the plaintiff's pubic bone, a condition known as shoulder dystocia. Vodra made a fourth degree episiotomy, which is a vertical incision in the perineal tissue (the area between the vagina and the rectum), thereby allowing more room for the baby's delivery through the birth canal. The baby was delivered twelve to fifteen minutes later; she appeared normal except for an elongated head. Following the delivery, Vodra surgically repaired the episiotomy. The plaintiff subsequently suffered from a rectovaginal fistula (passage of stool through the vagina) and underwent two operations by Ian Cohen, another physician employed by the defendant, and David Cherry, a physician outside the defendant practice, to repair the nonhealing episiotomy incision, but the plaintiff continues to suffer pain and permanent incontinence.

In April, 1996, the plaintiff brought an action against the defendant, naming Vodra and Cohen as its agents.⁴ In her complaint, the plaintiff alleged that Vodra's performance of a high pelvic operative vaginal delivery had resulted in the baby's presentment of shoulder dystocia.⁵ She asserted that when confronted with the obstetric complication, Vodra performed a fourth degree episiotomy, which subsequently caused the plaintiff permanent injury. At trial, each side presented the testimony of one expert witness. The plaintiff offered the testimony of Harold Schulman, and the defendant presented expert testimony from Edmund Olson. Both are board certified obstetricians and gynecologists. The case proceeded to trial before a jury, which returned a verdict in favor of the plaintiff, awarding $5000 in economic damages and $265,000 in noneconomic damages. Thereafter, the defendant filed a motion to set aside the verdict, which the court granted. In its memorandum of decision addressing the defendant's motion, the court found that the plaintiff's expert witness testimony on causation consisted of inadmissible hearsay. The plaintiff appealed to this court. We reversed the court's judgment, and remanded the case with direction to reinstate the jury's verdict and to render judgment on the verdict in favor of the plaintiff. Thereafter, the defendant appealed to our Supreme Court, which granted the petition for certification to appeal and remanded the case for us to consider the defendant's alternate grounds for affirmance. See Carusillo v. Associated Women's Health Specialists, P.C., supra, 262 Conn. 920.

We first note the applicable standard of review. "[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict and motion for a new trial . . . [is] the abuse of discretion standard.... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling. . . . Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done. . . .

"A court is empowered to set aside a jury verdict when, in the court's opinion, the verdict is contrary to the law or unsupported by the evidence.... A verdict should not be set aside, however, where it is apparent that there was some evidence on which the jury might reasonably have reached its conclusion.... In analyzing a sufficiency of the evidence claim, the test that we employ is whether, on the basis of the evidence before the jury, a reasonable and properly motivated jury could return the verdict that it did.... On appellate review, therefore, we will give the evidence the most favorable reasonable construction in support of the verdict to which it is entitled." (Citations omitted; internal quotation marks omitted.) Marchell v. Whelchel, 66 Conn. App. 574, 581-82, 785 A.2d 253 (2001).

We also note that a medical negligence action requires the plaintiff to prove "(1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury.... Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard." (Internal quotation marks omitted.) Harlan v. Norwalk Anesthesiology, P. C., 75 Conn. App. 600, 613, 816 A.2d 719, cert. denied, 264 Conn. 911, 826 A.2d 1155 (2003).

I

The defendant first argues that the plaintiff did not present expert testimony establishing the required standard of care for...