Curran v. Kroll

• Court: Connecticut Supreme Court
• Writing for the Court: VERTEFEUILLE
• Citation: Curran v. Kroll, 37 A.3d 700, 303 Conn. 845 (Conn. 2012)
• Decision Date: 13 March 2012
• Docket Number: No. 18585.,18585.
• Parties: John A. CURRAN, III, Administrator (Estate of Leeann Curran), et al. v. Sherry L. KROLL et al.

303 Conn. 845

37 A.3d 700

John A. CURRAN, III, Administrator (Estate of Leeann Curran), et al.

v.Sherry L. KROLL et al.

No. 18585.

Supreme Court of Connecticut.

Argued Dec. 8, 2011.Decided March 13, 2012.

Michael G. Rigg, with whom was Donna R. Zito, Hartford, for the appellants (named defendant et al.).

Kathleen L. Nastri, with whom was Cynthia C. Bott, Bridgeport, for the appellee (substitute plaintiff).

ROGERS, C.J., and NORCOTT, PALMER, ZARELLA, McLACHLAN and VERTEFEUILLE, Js.

VERTEFEUILLE, J.

The substitute plaintiff, Ryan P. Curran (plaintiff),¹ the successor administrator of the estate of Leeann Curran (decedent), brought this medical malpractice action against the defendants, Sherry L. Kroll, a physician, and the Medical Center of Northeast Connecticut, LLP,² claiming, inter alia, that Kroll had failed to warn the decedent adequately of certain risks associated with the use of birth control pills and the symptoms of those risks. The trial court directed a verdict in favor of the defendants and rendered judgment accordingly. The plaintiff then appealed to the Appellate Court, which reversed the judgment of the trial court and remanded the case for a new trial. Curran v. Kroll, 118 Conn.App. 401, 417, 984 A.2d 763 (2009). Thereafter, this court granted the defendants' petition for certification to appeal, limited to the following issue: “Did the Appellate Court properly reverse the trial court's granting of a directed verdict in favor of the defendants?” Curran v. Kroll, 295 Conn. 915, 990 A.2d 866 (2010). We affirm the judgment of the Appellate Court.

The opinion of the Appellate Court sets forth the following facts, construed in the light most favorable to the plaintiff, and procedural history. ³ “The decedent died on June 8, 2002, as a result of blood clots in her lungs that likely originated in her left thigh, traveled through her venous system and her heart and lodged in her lungs. The official cause of her death was determined to be bilateral pulmonary emboli caused by deep vein thrombosis.⁴

“On May 6, 2002, approximately one month before her death, the decedent, a forty-five year old woman, attended a scheduled office visit with her primary care physician ... Kroll, at which time the decedent complained of menopausal symptoms, including mood swings, hot flashes, dysmenorrhea (painful periods), and menometrorrhagia (irregular and heavy periods). To help alleviate those symptoms ... Kroll prescribed Desogen, an oral contraceptive or birth control pill, which was dispensed to the decedent in one of its generic forms, Apri, by her pharmacy. Both medications substantially are the same. Near the end of May, the decedent told her mother, Kathy Stilwell, that she ‘felt terrible’ and did not want to continue taking the pills because she was feeling worse than before she started taking them. The decedent also told Stilwell that she had telephoned ... Kroll about this, but [Kroll] told her to continue on the medication, which she did.... Kroll's office had no record of the decedent having made this telephone call, however. At some point in time after the decedent's May 6, 2002 office visit, the defendants lost or misplaced her medical chart, which later was re-created, in part, from a computer file in preparation for trial. Writings, such as some handwritten notations from ... Kroll, the decedent's self-prepared patient information sheet, reports from other [physicians], handwritten notations from nurses or assistants in ... Kroll's office and other items, however, could not be reproduced and were lost.... Kroll did testify, however, that it was her practice to dictate the results of a patient's examination and her recommendations, which then were stored electronically.

“On June 6, 2002, the decedent and Stilwell attended a meeting together. The decedent had considerable leg pain, however, and had to leave the meeting because of her discomfort. The decedent had no idea what was causing her pain. Although she went to work the next day, she had to leave work early due to continuing, significant leg pain. She speculated to Stilwell that perhaps she had done something to herself such as pull a muscle, but ‘she truly had no idea what was wrong with her.’ The decedent also told her husband [the named plaintiff, John A. Curran III; see footnote 1 of this opinion] that she had pain in her groin and that she could not figure out why. She speculated to him that perhaps she had pulled a muscle. She continued to complain about the pain through the evening of June 7, 2002. She and her husband were babysitting their two grandchildren that weekend. During the night, [the plaintiff] heard [the decedent] grunting in pain as the decedent's husband helped her get from their bedroom down the stairs. She was continuing to experience leg pain. [The plaintiff] asked if they needed help, but the decedent's husband declined, explaining that he was taking the decedent downstairs so that she could elevate her leg. The decedent stayed on the couch because of the pain. [The plaintiff] left for work at approximately 4 a.m. and kissed the decedent goodbye as she lay on the couch. The decedent reassured him that she was okay.

“At approximately 6 a.m. on the morning of June 8, 2002, the decedent's seven year old granddaughter woke the decedent's husband to tell him that the decedent had fallen; the granddaughter was quite upset. The decedent had fallen and hit her head in the bathroom. Her husband helped the decedent get onto the couch, and he telephoned 911. The decedent complained to her husband that she was unable to breathe. The Plainfield fire department responded quickly, as did the Canterbury fire department. Members thereof began providing assistance to the decedent, but she lost consciousness and stopped breathing. They continued in their attempts to revive her while she was taken by ambulance to a hospital. The decedent never regained consciousness. The cause of the decedent's death was bilateral pulmonary emboli caused by deep vein thrombosis.” Curran v. Kroll, supra, 118 Conn.App. at 403–406, 984 A.2d 763.

After the decedent's death, the plaintiff brought this action alleging, inter alia, that Kroll negligently had failed to warn the decedent of the signs and symptoms of deep vein thrombosis. “[At trial] Kroll testified that her training included information about the risks and side effects of birth control pills. She further testified that the risks of ‘blood clots are associated with the older formulations of birth control pills. The newer [formulation] of pills were designed specifically to try to reduce the risk. So, the data that is available is unclear to the degree that the risk was still present.’ [Kroll] then acknowledged that ‘one of the risks associated with birth control pills can be blood clots,’ but she also stated that she did not know if that same risk was associated with Desogen because the studies citing an increased risk were based on the older formulations of birth control pills.

“Despite stating that she did not know if the risks were associated with Desogen ... Kroll later testified that she ‘[d]efinitely’ would have advised the decedent of the risk associated with Desogen and deep vein thrombosis and that she also would have discussed with the decedent all side effects and the symptoms associated therewith before prescribing the medication. The decedent's patient file, which was a computer generated file created to replace the file lost by the defendants, had no indication that ... Kroll had given an advisement to the decedent or the content of such an advisement, despite ... Kroll's testimony that it was her practice to dictate the results of a patient's examination and her recommendations, which then were stored electronically. Nevertheless ... Kroll testified that she told the decedent and all her patients for whom she prescribed birth control pills that there is an increased risk of blood clots, that blood clots are potentially life threatening, and that the symptoms of blood clots are pain, as a result of leg swelling, and redness.⁵ Counsel for the plaintiff then pointed out to ... Kroll that when ... Kroll was questioned in a deposition on March 2, 2005, she had never mentioned telling the decedent to watch for pain but only that she should watch for swelling ... Kroll then stated that she stood by her deposition testimony. Counsel for the plaintiff then asked: ‘And standing by your deposition ... would mean that when you counsel the patient about warning signs, the warning sign that you counsel is swelling. Right?’ ... Kroll answered: ‘Swelling. Yes.’ ⁶ ... Kroll also stated that she would expect a patient, who has been properly counseled by her physician, to seek medical treatment when symptoms develop.

“The plaintiff's expert, Kenneth R. Ackerman, a board certified physician in internal medicine, testified that patients ‘put on birth control pills ... have a statistically increased risk of forming blood clots.’ He also stated that his opinion would not change on the basis of the name of the birth control pill, whether it was Desogen, Apri or some other formulation.... Ackerman also stated that ‘[a]n internist would expect that a reasonable patient, who has been advised properly, will recognize the appropriate side effects of the medication ... and receive medical attention ... should those symptoms or signs appear.’

“The deposition testimony of the decedent's husband was read for the jury. In relevant part, her husband had testified that the decedent had told him that she had pain in her groin but that she could not figure out why. She speculated to him that perhaps she had pulled a muscle. Stilwell, the decedent's mother, testified at trial that the decedent told her when she started taking the prescribed birth control pills and that the decedent also told her that she telephoned ... Kroll's office near the end of May because she was not feeling well taking the...