Duffy v. Flagg

• Decision Date: 29 August 2006
• Docket Number: No. 17455.,17455.
• Citation: 279 Conn. 682,905 A.2d 15
• Court: Connecticut Supreme Court
• Parties: Kathleen DUFFY, Administratrix (Estate of Sage T. Warren), et al. v. Julie S. FLAGG et al.

905 A.2d 15

279 Conn. 682

Kathleen DUFFY, Administratrix (Estate of Sage T. Warren), et al. v. Julie S. FLAGG et al.

No. 17455.

Supreme Court of Connecticut.

Argued April 18, 2006.

Decided August 29, 2006.

Charles W. Fleischmann, with whom were Madonna A. Sacco and, on the brief, Paul E. Pollock and David J. Robertson, Shelton, for the appellants (named defendant et al.).

Antonio Ponvert II, with whom was James D. Horwitz, Bridgeport, for the appellees (plaintiffs).

BORDEN, NORCOTT, PALMER, VERTEFEUILLE and SULLIVAN, Js.

VERTEFEUILLE, J.

The defendants Julie S. Flagg, a physician, and her medical practice, Crescent Street Ob-Gyn (Crescent Street),¹ appeal, following our grant of certification, from the judgment of the Appellate Court reversing the judgment of the trial court in favor of the defendants following a jury trial. Duffy v. Flagg, 88 Conn.App. 484, 869 A.2d 1270 (2005). The defendants claim that the Appellate Court improperly concluded that the trial court improperly excluded certain evidence relative to the issue of informed consent. We agree with the defendants, and accordingly, we reverse the judgment of the Appellate Court.

The record reveals the following factual and procedural history. In August, 1997, the plaintiff Kathleen Duffy² became pregnant with her second child and sought medical treatment from Flagg and Crescent Street. The plaintiff had received medical care from the defendants approximately two years earlier when she was pregnant with her first child, who was delivered by cesarean section. During the course of her prenatal care for her second child, the plaintiff discussed with Flagg and other members of Crescent Street the possibility of having her second child born vaginally despite the fact that her first child had been delivered by cesarean section. During these discussions, the defendants informed the plaintiff of the risks of the procedure known as "vaginal birth after cesarean section," including the risk of uterine rupture and the possibility of a resulting risk of death to the plaintiff and her infant. On one occasion, while discussing the procedure with Flagg, the plaintiff asked Flagg whether she had encountered any difficulty in her prior vaginal birth after cesarean section deliveries.³ Flagg responded that there had been "a bad outcome" because of a uterine rupture. The plaintiff did not inquire further about the result of the uterine rupture, and Flagg did not tell the plaintiff that the infant had died as a result of that uterine rupture. The plaintiff thereafter decided to attempt a vaginal birth after cesarean delivery and executed written consent forms therefor, which specifically detailed the nature, risks, alternatives and benefits of the procedure.⁴

On May 19, 1998, the plaintiff was admitted to Middlesex Hospital for the delivery of her second child. The plaintiff attempted to deliver the infant vaginally, but after she displayed possible signs of a uterine rupture, Flagg transferred her to the operating room and delivered Sage T. Warren, the plaintiff's decedent, by cesarean section. As a result of complications during the birth, the infant survived on life support for eight days, but ultimately died on May 28, 1998. Thereafter, the plaintiff instituted this negligence action, alleging both medical malpractice and lack of informed consent.

Prior to trial, the defendants filed a motion in limine seeking to exclude all evidence related to the fact that Flagg previously had encountered a uterine rupture during an attempted vaginal birth after cesarean section delivery, including the existence of a lawsuit against Flagg for the death of the infant that resulted from that attempt, and all testimony from or reference to the former patient involved in that delivery. The trial court thereafter granted the defendants' motion in limine. The plaintiff then withdrew her claim with regard to informed consent.⁵ After the completion of the evidence, the jury returned a verdict in favor of the defendants. The plaintiff then filed a motion to set aside the verdict and for a new trial, which the court denied. Thereafter, the court rendered judgment in favor of the defendants in accordance with the verdict.

The plaintiff appealed from the judgment of the trial court to the Appellate Court, claiming that the trial court improperly had granted the defendants' motion in limine to preclude evidence regarding Flagg's prior experience with vaginal birth after cesarean section, which the plaintiff claimed was relevant to informed consent.⁶ The Appellate Court reversed the judgment of the trial court with regard to the informed consent claim, concluding that the evidence related to Flagg's prior experience with vaginal birth after cesarean section was admissible to determine whether Flagg had obtained the plaintiff's informed consent. Duffy v. Flagg, supra, 88 Conn.App. at 493, 869 A.2d 1270. Concluding that the trial court's error affected only the plaintiff's claim based on failure to obtain informed consent and did not warrant a new trial on the medical malpractice claim, the Appellate Court reversed the judgment of the trial court on the informed consent claim and remanded the case for a new trial solely on that claim. Id., at 495, 869 A.2d 1270. Thereafter, we granted the defendants' petition for certification to appeal from the Appellate Court, limited to the following issue: "Did the Appellate Court properly reverse the trial court's ruling excluding certain evidence regarding the issue of informed consent?" Duffy v. Flagg, 274 Conn. 909, 876 A.2d 1201 (2005).

On appeal, the defendants claim that the Appellate Court improperly reversed the trial court's ruling excluding evidence of Flagg's prior experience with vaginal birth after cesarean section. Specifically, the defendants assert that the Appellate Court failed to apply Logan v. Greenwich Hospital Assn., 191 Conn. 282, 292, 465 A.2d 294 (1983), and subsequent decisions, in which this court recognized that "informed consent involves four specific factors: (1) the nature of the procedure; (2) the risks and hazards of the procedure; (3) the alternatives to the procedure; and (4) the anticipated benefits of the procedure." Alswanger v. Smego, 257 Conn. 58, 67-68, 776 A.2d 444 (2001), citing Logan v. Greenwich Hospital Assn., supra, at 292, 465 A.2d 294. Instead, the defendants argue, the Appellate Court added an additional element to informed consent, namely an obligation on the part of a physician to disclose details of his or her professional experience even if this experience did not increase the risk to the patient.

In response, the plaintiff contends that the Appellate Court properly reversed the trial court's ruling excluding evidence regarding Flagg's prior experience with vaginal birth after cesarean section. The plaintiff contends that information regarding Flagg's prior experience is relevant to informed consent because the plaintiff specifically asked Flagg about her experience with vaginal birth after cesarean section deliveries, Flagg withheld the fact that an infant previously had died during such a delivery and the plaintiff would not have attempted a vaginal birth had she known that Flagg previously had experienced an infant death during such a delivery. We agree with the defendants, and, accordingly, we reverse the judgment of the Appellate Court.

We begin with the applicable standard of review. "The scope of our appellate review depends upon the proper characterization of the rulings made by the trial court." (Internal quotation marks omitted.) Olson v. Accessory Controls & Equipment Corp., 254 Conn. 145, 156, 757 A.2d 14 (2000). Although ordinarily we review evidentiary claims pursuant to an abuse of discretion standard, the trial court's ruling on the motion in limine in the present case was based on its legal determination that Flagg's prior experience was not properly part of an informed consent claim. "When . . . the trial court draws conclusions of law, our review is plenary and we must decide whether its conclusions are legally and logically correct and find support in the facts that appear in the record." (Internal quotation marks omitted.) Commissioner of Transportation v. Rocky Mountain, LLC, 277 Conn. 696, 728, 894 A.2d 259 (2006). We must decide, therefore, whether the trial court was legally and logically correct when it decided, under the facts of the case, to exclude evidence regarding Flagg's prior experience with the procedure of vaginal birth after cesarean section.

The following additional facts and procedural history are necessary to our resolution of this question. The defendants' motion in limine sought to preclude the plaintiff from introducing the following evidence: that a patient of Flagg's had experienced a uterine rupture during a prior vaginal birth after cesarean section delivery; the existence of a lawsuit against Flagg arising from the death of the infant that resulted from the uterine rupture; and any testimony from or reference to the former patient involved in that delivery. The basis for the motion was that the evidence regarding Flagg's prior experience with vaginal birth after cesarean section was not relevant to the plaintiff's medical malpractice action and that its prejudicial effect outweighed any probative value. In response, the plaintiff argued that the evidence was relevant to the plaintiff's informed consent claim because the plaintiff and Flagg had discussed Flagg's prior experience with vaginal birth after cesarean section and Flagg's experience played a key role in the plaintiff's decision to attempt a vaginal birth for the birth of her second child. Accordingly, the plaintiff argued that Flagg's prior experience and her candor in relating that experience to the plaintiff was relevant and admissible.

During oral arguments on the motion in limine, the trial court asked the plaintiff's counsel for a proffer of the evidence that it planned to...