Hammer v. Mount Sinai Hosp.

• Decision Date: 22 November 1991
• Docket Number: Nos. 8841,8851,s. 8841
• Citation: 25 Conn.App. 702,596 A.2d 1318
• Court: Connecticut Court of Appeals
• Parties: Seymour HAMMER v. MOUNT SINAI HOSPITAL et al.

Page 1318

596 A.2d 1318

25 Conn.App. 702

Seymour HAMMER v. MOUNT SINAI HOSPITAL et al.

Nos. 8841, 8851.

Appellate Court of Connecticut.

Argued March 26, 1991.

Decided Sept. 17, 1991.

Certification Denied Nov. 22, 1991.

John F. Scully, Hartford, and John P. Rogers, Farmington, with whom, on the brief, were John D. Liberator, Louis B. Blumenfeld and Joseph A. La Bella, Hartford, for appellants (named defendant et al.).

Wesley W. Horton, with whom were William R. Moller, Louis W. Flynn, Jr., and, on the brief, Susan M. Cormier, Hartford, for appellee (plaintiff).

Before DUPONT, C.J., and SPALLONE and HEIMAN, JJ.

DUPONT, Chief Judge.

The defendants, Mount Sinai Hospital (hospital) and Douglas Whittemore, a physician employed by the hospital, ¹ appeal from a judgment rendered on a general verdict in favor of the plaintiff in this malpractice action.

On August 18, 1981, the plaintiff, a podiatrist, entered the hospital for treatment of a duodenal ulcer. The plaintiff also suffered from pancreatitis, a related condition, the symptoms of which made it unsafe for him to undergo ulcer surgery. In order to control those symptoms, Kishan Tandon, the plaintiff's treating physician, decided that the plaintiff should receive high caloric intravenous feeding through a Total Parenteral Nutrition (TPN) line.

Intravenous feeding by a TPN line begins with insertion of a four inch long, large bore needle into a patient's subclavian vein, a blood vessel in the shoulder that is not visible on the surface of the skin. A catheter is then passed into the vein. Once inserted, the catheter is attached to a drip bottle or pump that supplies the nutrient fluid. The area is numbed by novocaine, but the patient is not necessarily sedated during the insertion of the TPN line.

On August 28, 1981, Whittemore was assigned to install a TPN line for the plaintiff. The plaintiff was nervous and agitated throughout the procedure, moving his head, crying out, complaining of pain and requiring additional injections of novocaine. Whittemore was unable to insert the line on his first try.

The morning after the procedure, the plaintiff was found semiconscious, with one end of the TPN line disconnected from the nutrient source and open to the air, the other line remaining in his chest. He exhibited signs of neurological distress. Later that night, the plaintiff suffered seizures. The plaintiff eventually recovered from the worst effects of his neurological problems and left the hospital on September 9, 1981.

The plaintiff sued the defendants for damages for permanent injuries he sustained as a result of their negligence in the insertion and supervision of the TPN line. He also claimed that Whittemore performed the procedure without obtaining his informed consent.

Whittemore prepared interrogatories for the court to submit to the jury. The hospital joined in requesting that Whittemore's interrogatories be given to the jury. ² The court rejected these interrogatories as improper and did not submit them or its own interrogatories. The jury returned a general verdict in favor of the plaintiff against Whittemore and the hospital in the amount of $460,000. Whittemore moved to set aside the verdict and for judgment notwithstanding the verdict on several grounds. The hospital also moved to set aside the verdict, as well as for judgment notwithstanding the verdict, and for a new trial and a remittitur. The trial court denied the defendants' motions.

The defendants make a multiplicity of claims. ³ See State v. Pelletier, 209 Conn. 564, 567, 552 A.2d 805 (1989). They claim (1) that the trial court improperly refused to submit interrogatories to the jury, (2) that the trial court improperly charged the jury on several issues, (3) that the trial court incorrectly refused to strike the testimony of the plaintiff's two expert witnesses, and that the evidence did not support the plaintiff on his claims, (4) that the trial court incorrectly excluded evidence of the plaintiff's income after the injury, (5) that the trial court improperly dismissed a juror, and (6) that the verdict is excessive.

I

The plaintiff's complaint incorporated two causes of action against Whittemore, one for his alleged negligence in the installation of the TPN line and the other for his alleged negligence in failing to obtain the plaintiff's informed consent. ⁴

Because there were two causes of action, Whittemore had a right to protect himself "from the implication of a general verdict by seeking from the jury answers to apt and proper interrogatories." Hartford v. Anderson Fairoaks, Inc., 7 Conn.App. 591, 594, 510 A.2d 200 (1986); Sheeler v. Waterbury, 138 Conn. 111, 114-15, 82 A.2d 359 (1951); Booker v. Stern, 19 Conn.App. 322, 328, 563 A.2d 305 (1989).

There was no allegation of lack of informed consent against the hospital. The hospital was not, therefore, entitled to join in the request to submit to the jury the interrogatories proposed by Whittemore, nor was the hospital entitled to interrogatories as of right because there was only one cause of action alleged against it. Cf. Hartford v. Anderson Fairoaks, Inc., supra. On appeal, however, the hospital claims that the failure of the trial court to submit Whittemore's interrogatories on informed consent infected the general verdict returned against the hospital. The hospital, thus, claims the benefit of any appellate ruling on this issue in Whittemore's favor. The hospital cannot claim such a benefit. The trial court clearly instructed the jury that negligence arising from any lack of informed consent was alleged only against Whittemore. A jury is presumed to follow the trial court's instructions. State v. Richardson, 214 Conn. 752, 757, 574 A.2d 182 (1990). Furthermore, there is only one cause of action against the hospital, and, therefore, the general verdict rule does not apply.

The implication of a general verdict, where there are two causes of action, "imports that the jury has found all the issues for the plaintiff, hence if one of these causes of action is supported by credible testimony the verdict must stand, although the other cause of action was not supported by credible testimony or authorized by law, since it cannot be known that the verdict was based upon the invalid cause of action." Wladyka v. Waterbury, 98 Conn. 305, 313, 119 A. 149 (1922); see also Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987). A defendant may seek protection against such an implication by requesting a separate verdict as to each cause of action. Sheeler v. Waterbury, supra, 138 Conn. at 114, 82 A.2d 359. Protection against the application of the general verdict rule also may be obtained by the use of properly framed interrogatories. A court has a duty to grant a defendant's proper request for interrogatories when there are two or more causes of action. Pentino v. Gallo, 107 Conn. 242, 244, 140 A. 105 (1928); Hartford v. Anderson Fairoaks, Inc., supra.

Even in the face of this duty, however, our cases recognize that a trial court has broad discretion to regulate the manner in which interrogatories are presented to the jury, as well as their form and content. Gaulton v. Reno Paint & Wallpaper Co., 177 Conn. 121, 125, 412 A.2d 311 (1979); Freedman v. New York, N.H. & H.R. Co., 81 Conn. 601, 611-15, 71 A. 901 (1909); see Practice Book § 312. Interrogatories "should generally be few in number, and never so numerous as to confuse or perplex the jury in rendering their verdict. They should be so clear and concise as to be readily understood and answered by the jury. Each question should call for a finding of but a single fact. When practicable each question should be so framed as to call for a categorical answer. Each question should ask for the finding of a fact and never for a conclusion of law. No question should ask for the finding of a purely evidential fact nor an uncontroverted fact. Although not wholly covering, nor necessarily controlling, the determination of any issue framed, the fact sought to be elicited must be pertinent to some issue, and one which may be of material weight in deciding it. No interrogatory should be permitted, the response to which cannot serve either to limit or explain a general verdict, or aid in proceedings for a subsequent review of the verdict or judgment which may be rendered." Freedman v. New York, N.H. & H.R. Co., supra, 614, 71 A. 901.

Here, Whittemore submitted fourteen interrogatories laced with medical terms relating to both of the plaintiff's causes of action and addressing subordinate facts rather than ultimate facts. See Pierce v. Albanese, 144 Conn. 241, 261, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S.Ct. 36, 2 L.Ed.2d 21 (1957). For example, one interrogatory asks, "Do you find from the evidence that the piercing was distal or beyond the vertebral artery?" Two of the interrogatories may be inconsistent because one appears to require the use of a subjective standard for the informed consent cause of action, and the other requires the use of an objective standard for the same cause of action. ⁵

The trial court could reasonably have concluded that interrogatories in this form would only have confused the jury and would not have served to "limit or explain" the verdict. See Freedman v. New York, N.H. & H.R. Co., supra. Under these circumstances, the trial court did not abuse its discretion in refusing to submit Whittemore's interrogatories to the jury.

Even if the trial court had an obligation to rephrase some of Whittemore's interrogatories for submission to the jury; see Hartford v. Anderson Fairoaks, Inc., supra; the failure to do so here would not require the verdict against Whittemore to be set aside. This is so because we conclude that the court's instructions were correct as to both causes of action against Whittemore.

Where "there are two or more distinct causes of action, a general verdict will cure an erroneous charge as to one of...