Duffy v. Flagg, 24460.

• Decision Date: 19 April 2005
• Docket Number: No. 24460.,24460.
• Citation: 88 Conn.App. 484,869 A.2d 1270
• Court: Connecticut Court of Appeals
• Parties: Kathleen DUFFY, Administratrix (Estate of Sage T. Warren), et al. v. Julie S. FLAGG et al.

869 A.2d 1270

88 Conn.App. 484

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

No. 24460.

Appellate Court of Connecticut.

Argued October 22, 2004.

Decided April 19, 2005.

Antonio Ponvert III, Bridgeport, with whom, on the brief, were James D. Horwitz, Ruth Weissman and Cynthia Bott, Milford, for the appellants (plaintiffs).

David J. Robertson, Bridgeport, for the appellees (named defendant et al.).

BISHOP, WEST and HENNESSY, Js.

BISHOP, J.

In this medical malpractice action, the plaintiff Kathleen Duffy¹ appeals from the judgment of the trial court, rendered after a jury trial, in favor of the defendants Julie S. Flagg and Crescent Street Ob-Gyn.² On appeal, the plaintiff claims that she is entitled to a new trial because the court improperly granted the defendants' motion in limine to preclude evidence regarding Flagg's past experience with a procedure known as vaginal birth after cesarean section (VBAC), which precluded the plaintiff from introducing evidence that she was not given adequate informed consent.³ We agree. Accordingly, we reverse the judgment of the trial court in part and order a new trial limited to the plaintiff's claim of lack of informed consent. We affirm the judgment in all other respects.

The following facts and procedural history are relevant to our resolution of the plaintiff's appeal. In the fall of 1997, the plaintiff became pregnant with her second child and sought obstetrical care from the defendants. During the course of treatment, Flagg informed the plaintiff that, although her first child had been delivered through a cesarean section, her second child could be delivered vaginally via the VBAC procedure. Flagg advised the plaintiff that, statistically, there were risks associated with the procedure, including uterine rupture and even a small chance of death of the child. Flagg reassured the plaintiff that all necessary steps would be taken to minimize or eliminate the risk to either the plaintiff or the plaintiff's decedent and that the risk was "very, very small...." While discussing the risks of the VBAC procedure, the plaintiff asked Flagg about her personal experience with VBACs and whether Flagg had had any negative outcomes. In response, Flagg stated that one of her previous patients suffered a uterine rupture as a result of a VBAC delivery. She did not mention, however, that the uterine rupture had caused the infant's death and had placed the mother's health at risk.

On May 19, 1998, the plaintiff was admitted to Middlesex Hospital for labor. Under the care of Flagg, she attempted to deliver the child vaginally, but her uterus ruptured. Flagg ultimately delivered Sage T. Warren, the plaintiff's decedent, by cesarean section. The plaintiff's decedent, who was in serious medical condition, survived on life support for eight days, but died on May 28, 1998. Subsequently, the plaintiff instituted this action in a complaint sounding in negligence, alleging lack of informed consent and medical malpractice in the performance of the VBAC procedure.

The defendants filed a motion in limine, which was granted on April 8, 2003, requesting the court to prohibit the plaintiff from introducing any evidence regarding Flagg's prior experience with VBAC deliveries. In response to the court's ruling, the plaintiff, on the record, orally withdrew the part of her claim that was based on lack of informed consent. When the plaintiff requested to preserve her right to challenge the evidentiary ruling on appeal, the court responded on the record that the plaintiff's informed consent claim had been preserved for appeal. After the conclusion of the evidence, the court instructed the jury regarding medical malpractice, omitting any charge on the issue of informed consent. After the jury returned a general verdict in favor of the defendants on April 28, 2003, the plaintiff filed a motion to set aside the verdict and for a new trial. The court denied the plaintiff's motion and rendered judgment for the defendants. This appeal followed. Additional facts will be set forth as necessary.

The plaintiff claims that the court improperly precluded testimony regarding Flagg's prior experience with VBAC procedures as it related to the issue of informed consent. The plaintiff maintains further that this adverse evidentiary ruling unfairly precluded her from presenting her informed consent claim.⁴ We agree. The following additional facts are pertinent to this issue. The defendants filed a motion in limine on April 3, 2003, requesting that the court prohibit the plaintiff from introducing any evidence (1) regarding the fact that Flagg had encountered a prior uterine rupture during an attempt to perform a VBAC delivery, (2) relating to the existence of a prior lawsuit against Flagg in connection with the death of a baby following a uterine rupture while attempting to perform a VBAC procedure and (3) regarding Flagg's prior patients. In the motion in limine, the defendants claimed that the evidence should be precluded on the grounds that it was not relevant, its prejudicial effect outweighed any probative value, it was evidence of prior bad acts and it had no bearing on the claims made in the matter. The plaintiff objected to the motion, arguing that the evidence was being offered substantively in support of her informed consent claim and on the issue of proximate cause, and not as impeachment evidence of prior bad acts. The court granted the defendants' motion in limine on April 8, 2003, precluding the evidence for substantive and impeachment purposes.

The plaintiff's informed consent claim rested on the allegation that Flagg had given an incomplete and misleading response to the plaintiff's inquiry about prior experience with VBAC deliveries. The plaintiff maintained that Flagg told the plaintiff that, in a prior VBAC delivery, she had one complication that resulted in a uterine rupture, but failed to tell the plaintiff that the uterine rupture resulted in an infant's death.⁵ The plaintiff asserted that this evidence supported her claim that Flagg had not provided her with adequate information required for informed consent because Flagg's incomplete response misled the plaintiff into believing that a uterine rupture was the only complication Flagg had encountered and that such a rupture was a condition that could be surgically repaired, unlike the death of a newborn. The plaintiff also claimed that if Flagg had informed her that the prior VBAC delivery resulted in the death of the infant, she would not have elected the VBAC procedure.

"The standard of review we apply to a trial court's evidentiary rulings is well settled. Such rulings are entitled to great deference.... The trial court is given broad latitude in ruling on the admissibility of evidence, and we will not disturb such a ruling unless it is shown that the ruling amounted to an abuse of discretion.... Even when a trial court's evidentiary ruling is deemed to be improper, we must determine whether that ruling was so harmful as to require a new trial.... In other words, an evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful.... Finally, the standard in a civil case for determining whether an improper ruling was harmful is whether the ... ruling [likely] would [have] affect[ed] the result." (Internal quotation marks omitted.) Madsen v. Gates, 85 Conn.App. 383, 399, 857 A.2d 412, cert. denied, 272 Conn. 902, 863 A.2d 695 (2004).

The plaintiff argues that, in granting the defendants' motion in limine, the court incorrectly assumed a gate-keeping function, prohibiting her from introducing evidence to the jury that the information Flagg had provided before surgery was inadequate for her to have given informed consent to the procedure. The plaintiff maintains that the jury should have been permitted to determine whether information regarding the statistical risks associated with the VBAC procedure alone provided an adequate basis for informed consent when the defendant physician additionally had provided an incomplete and misleading answer to a question regarding her specific experience with the procedure with prior patients.

In Logan v. Greenwich Hospital Assn., 191 Conn. 282, 465 A.2d 294 (1983), the seminal case regarding the doctrine of informed consent, the court adopted the "lay standard" as the criterion for informed consent. Id., at 292-93, 465 A.2d 294. Under the lay standard, a physician has "a duty to disclose such information as a reasonable patient would consider material to the decision whether or not to undergo treatment or diagnosis." (Internal quotation marks omitted.) Id., at 292, 465 A.2d 294. The court noted that "[t]he standard has been further delineated by specifying various elements which the physician's disclosure should include: (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." (Internal quotation marks omitted.) Id.

In the present case, we are not called on to decide, generally, whether a physician has an affirmative duty to disclose her prior experience with a particular procedure as part of the required underlayment for informed consent. Rather, we consider whether, in conjunction with an informed consent claim, a physician's failure to answer fully and completely a patient's direct question related to an anticipated procedure is probative of a claim that the physician did not obtain informed consent to the procedure. Whether a physician's conduct falls within the scope of the lay standard for informed consent is a question for the jury. Pedersen v. Vahidy, 209 Conn. 510, 521-22, 552 A.2d 419 (1989); see Logan v. Greenwich Hospital Assn., supra, 191 Conn. at 293, 465 A.2d 294. "Under the lay standard for determining whether there has been informed consent, the jurors as laypersons must be given great latitude to...