Cross v. Huttenlocher

• Decision Date: 18 August 1981
• Citation: 185 Conn. 390,440 A.2d 952
• Court: Connecticut Supreme Court
• Parties: Elizabeth L. CROSS et al. v. Peter R. HUTTENLOCHER et al.

Page 952

440 A.2d 952

185 Conn. 390

Elizabeth L. CROSS et al. v.Peter R. HUTTENLOCHER et al.

Supreme Court of Connecticut.

Argued June 9, 1981.

Decided Aug. 18, 1981.

[185 Conn. 391] Kenneth S. Halpern, Wethersfield, for appellant (plaintiff).

Edward J. Daly, Jr., Hartford, with whom was Jesse M. Frankl, West Hartford, for appellee(named defendant).

John F. Scully, Hartford, for appellee(defendantDavid Riege).

Before BOGDANSKI, C. J., and PETERS, HEALEY, PARSKEY and ARMENTANO, JJ.

PARSKEY, Associate Justice.

This case concerns the nature of a physician's duty to a patient who takes a potentially dangerous prescription drug pursuant to the physician's direction.The plaintiff¹ claims that her blindness was caused by the defendants' negligent administration to her of the drug Atabrine from 1965-1970.Following a general jury verdict and judgment rendered in favor of the defendants, Dr. Peter R. Huttenlocher and Dr. David Riege, the plaintiff appeals.

The following underlying facts are not seriously challenged by the parties.The plaintiff was born on July 2, 1962, and began having seizures some three months later.For the next three years she was under the care of several physicians including Dr. Robert Breer, her general pediatrician; Dr. David Riege, also a pediatrician; Dr. Philip Dodge, a pediatric neurologist; and Dr. Peter Huttenlocher, also a pediatric neurologist.Huttenlocher worked under the supervision of Dodge at Massachusetts General Hospital.The plaintiff was diagnosed by Dodge as having myoclonic seizures and occasional grand mal seizures.

Atabrine treatments began in 1965 at the instance of Dodge.The plaintiff was given an ad lib ² Atabrine prescription signed by Breer.During 1966 and 1967she continued to take Atabrine while being examined by Huttenlocher once or twice a year.He notified Riege, who was at that time the plaintiff's local pediatrician, that the plaintiff was to continue to use Atabrine.In 1968the plaintiff stopped seeing Huttenlocher because of the inconvenience of traveling from her West Hartford home to his office, then in New Haven.

In May, 1969, the plaintiff's mother wrote Huttenlocher requesting a copy of the latest prescriptions of medication that the plaintiff was then receiving in order for her to be admitted into the Hartford Regional Center.His response included a prescription for Atabrine.The plaintiff continued to use Atabrine until 1970, when another neurologist ordered it discontinued.At this point her seizures had worsened and she was going blind.We discuss separately the claims of error against each physician.

RIEGE

The first claim pursued in the briefs with respect to the defendant Riege concerns the trial court's charge to the jury.The court instructed the jury to disregard the paragraph of the plaintiff's complaint which alleged that Riege was negligent in failing to warn the plaintiff that Atabrine could cause side effects harmful to her vision.The decision to remove this issue from the jury's consideration was based upon the court's conclusion that there was no evidence to support the claim that such a failure to warn was a breach of a physician's duty.We agree.

A physician is under a duty to his patient to exercise that degree of care, skill and diligence which physicians in the same general line of practice ordinarily possess and exercise in similar cases.Katsetos v. Nolan, 170 Conn. 637, 644-45, 368 A.2d 172(1976).To prevail in a malpractice case the plaintiff must establish through expert testimony both the standard of care and the fact that the defendant's conduct did not measure up to that standard.Pisel v. Stamford Hospital, 180 Conn. 314, 334, 430 A.2d 1(1980).

In her brief, the only expert evidence relied on by the plaintiff to sustain her burden in this respect consists of the testimony of doctors Huttenlocher and Leon Charash, a physician specializing in pediatric neurology.Neither testified that he was familiar with the standard of care applicable to physicians specializing in general pediatrics.The standard of care to which the defendant Riege, as a general pediatrician, had to conform his conduct was thus never established.The trial court properly took the issue away from the jury.

The plaintiff also maintains that the trial court erred when it instructed the jury to disregard the allegations of negligence which related to the defendant's failure to test ³ the drug prior to prescribing it.We need not consider this issue at length because the record before us reveals neither a relevant request to charge nor an exception to this portion of the charge.Accordingly, we decline to review this claim.Thomas v. Katz, 171 Conn. 412, 413-14, 370 A.2d 978(1976);Practice Book§ 315;Maltbie, Conn.App.Proc. § 112.

The plaintiff's next claim assails the court's instructions on the meaning of proximate cause and fair preponderance of the evidence.After reviewing the charge as given and the plaintiff's requests to charge relating to proximate cause, we conclude that the charge was correct in law, adapted to the issues and sufficient for the jury's guidance.SeeMichaud v. Gagne, 155 Conn. 406, 412, 232 A.2d 326(1967).The court's instructions included references to concurrent causation, defined proximate cause as an act or failure to act which is a substantial factor in producing a result, and indicated how causation could be established through expert testimony.That the court did not adopt the plaintiff's requests verbatim does not afford a ground for reversal so long as the jury were adequately apprised of the relevant issues.Mazzucco v. Krall Coal & Oil Co., 172 Conn. 355, 357, 374 A.2d 1047(1977).To the extent that the plaintiff's requests were correct in law, their substance was included in the court's charge.SeeMichaud v. Gagne, supra.

The portion of the charge which described the standard of proof was also correct in law."Fair preponderance of the evidence" was properly defined as "the better evidence, the evidence having the greater weight, the more convincing force in your mind."The court charged that the standard has been satisfied with respect to a fact if all the evidence considered fairly and impartially evinces a reasonable belief that it is more probable than not that the fact is true.The plaintiff does not directly attack these instructions.Rather she argues that the court's later use of the term "reasonable probability" in connection with compensating the plaintiff for future damages operated to confuse the jury as to the standard of proof.We disagree.Taken in context, the "reasonable probability" language was entirely correct as a guide to estimating future pain, incapacity and physical impairment.No reason appears why the jury would spontaneously substitute "reasonable probability" for the fair preponderance standard carefully described in the charge.The court's instructions included the essence of the plaintiff's requests and, read as a whole, fairly presented the case.SeeKosko v. Kohler, 176 Conn. 383, 390-391, 407 A.2d 1009(1978).

The plaintiff next claims error in the court's rulings excluding from and admitting into evidence certain portions of medical texts.The plaintiff first challenges the court's denial of her request to introduce several excerpts from medical texts into evidence.Under Connecticut law, if a medical treatise is recognized as authoritative by an expert witness and if it influenced or tended to confirm his opinion, then relevant portions thereof may be admitted into evidence in the exercise of the trial court's discretion.SeeKaplan v Mashkin Freight Lines, 146 Conn. 327, 334-35, 150 A.2d 602(1959);Cervino v. Coratti, 131 Conn. 518, 521-22, 41 A.2d 95(1945);Tait & LaPlante, Handbook of Connecticut Evidence§§ 7.16f(4), 11.19.This approach differs from that of most other jurisdictions, including the federal rule, in that we allow the material to be taken into the jury room as a full exhibit.Tait & LaPlante, supra, § 7.16f(4); Tait, "The New Federal Rules of Evidence: A Summary of the Differences Between the Rules and the Connecticut Law of Evidence,"9 Conn.L.Rev. 1, 30-31(1976).Most other jurisdictions bar such material from the jury room, limiting their use to an oral reading in connection with an expert witness' testimony.SeeFederal Rule of Evidence 803(18)⁴; annot., "Argument to Jury-Learned Treatises,"72 A.L.R.2d 931.This limitation seeks to avoid the danger of misunderstanding or misapplication by the jury and ensures that the jurors will not be unduly impressed by the text or use it as a starting point for reaching conclusions untested by expert testimony.Fed.R.Evid., rule 803(18), advisory committee note;Weinstein & Berger, Weinstein's EvidenceP 803(18)(02).The Connecticut rule, on the other hand, has the advantage of allowing the jurors to examine more fully the text of what frequently is a technical and complicated discussion that may be unfathomable to a nonexpert juror who merely heard a single oral recitation.Although the concerns which underlie the federal rule cannot be completely obviated when the materials are allowed in the jury room, the dangers can be minimized by the judicious exercise of discretion by the trial court in deciding which items ought to be admitted as full exhibits.

Measured against these principles, the trial court's rulings excluding certain medical texts offered by the plaintiff from evidence cannot be disturbed.Essentially, the court declined to admit the texts because of the danger that the jury would be confused or misled by examining the texts unaided by expert testimony.⁵An examination of the excluded material discloses that the court's fears were well-founded.

The medical literature offered by the plaintiff and excluded from evidence by the court suffered from two defects.First, most of the material did not concern side effects from Atabrine specifically.Instead, the...