Hayes v. Camel

• Decision Date: 07 August 2007
• Docket Number: No. 17430.,17430.
• Citation: 927 A.2d 880,283 Conn. 475
• Court: Connecticut Supreme Court
• Parties: Frederick HAYES et al. v. Mark H. CAMEL et al.

927 A.2d 880

283 Conn. 475

Frederick HAYES et al. v. Mark H. CAMEL et al.

No. 17430.

Supreme Court of Connecticut.

Argued January 9, 2007.

Decided August 7, 2007.

Joshua D. Koskoff, Bridgeport, with whom was Cynthia C. Bott, Milford, for the appellants (plaintiffs).

Catherine S. Nietzel, Stamford, for the appellees (defendants).

NORCOTT, KATZ, PALMER, VERTEFEUILLE and ZARELLA, Js.

NORCOTT, J.

The sole issue in this appeal is whether, in a medical malpractice action without a claim of lack of informed consent, the trial court properly admitted testimonial and documentary evidence that the defendant surgeon had informed his patient of the risks of the medical procedure in question. The plaintiffs, Frederick Hayes and Barbara Hayes,¹ brought this action for medical malpractice and loss of consortium against the defendants, Mark H. Camel and Paul Apostolides, arising from their alleged negligence in the surgical treatment of the plaintiff. The plaintiff appeals² from the judgment of the trial court, rendered after a jury trial, in favor of the defendants. We conclude that the trial court improperly admitted evidence pertaining to informed consent,³ but that that impropriety was harmless.

Accordingly, we affirm the judgment of the trial court.

The record reveals the following facts, which the jury reasonably could have found, and procedural history. In August, 1998, the plaintiff, a Stamford firefighter assigned to the Turn of River fire department, injured his back when he moved several cases of soda while at work. He was diagnosed with a herniated disc in his lumbar spine at the L4 nerve root that affected the motor and sensory function in his right leg and knee; physical therapy did not alleviate those symptoms. On November 30, 1998, Camel, a neurosurgeon who had been monitoring the plaintiff's progress in physical therapy, presented as a treatment option a microdiscectomy, which is a surgical procedure to remove the herniated disc or parts thereof.

Thereafter, Camel, assisted by Apostolides, performed a microdiscectomy on the plaintiff. During that procedure, Camel used a high-speed drill to shave down the lamina, which is a bone layer surrounding the spinal column, in order to gain access to the pieces of the herniated disc that were pressing on the plaintiff's lumbar spinal nerves and causing his pain and neurological symptoms. Once he had thinned the lamina sufficiently, Camel used a hand instrument known as a Kerrison rongeur to finish cutting through the lamina. Apostolides assisted him by holding a retractor, which previously had been placed by Camel, to move the L4 nerve away from the surgical field.

While Camel drilled the surface of the lamina, at some point, a "V" shaped rent, or opening, was made in the dura, the thin tissue beneath the lamina that covers the arachnoid, which contains the cerebral spinal fluid that surrounds the spinal nerve roots.⁴ This resulted in a small leakage of cerebral spinal fluid, before Camel was able to repair the rent during the procedure.

It became apparent in the weeks following the surgery that, although the plaintiff's back pain had improved, he also had sustained some damage to his sacral nerves. This sacral nerve damage was the result of arachnoiditis, which is an inflammation of the arachnoid that had followed the surgery and caused the sacral nerve roots therein to clump together, affecting their function.⁵ This nerve damage also has caused the plaintiff to suffer numbness in his buttocks and genitals, which resulted in bowel, bladder and sexual difficulties.⁶ The plaintiff suffers from allodynia in his right foot, which causes him to experience excruciating pain upon even a light touch. The plaintiff now is constantly depressed and in pain, and he no longer is able to work as a firefighter or at his various side jobs, take part in recreational sporting activities that he previously had enjoyed, and can travel only with great difficulty.

Thereafter, the plaintiff brought this action claiming medical malpractice and loss of consortium. He claimed that Camel had failed to control the drill properly or take steps to protect the dura and the nerves therein and also that Apostolides had retracted the L4 nerve root improperly. The plaintiff filed numerous motions in limine seeking to preclude the admission of documentary or testimonial evidence pertaining to informed consent, and any discussion or argument pertaining to his injuries as a "`risk of the procedure.'" The trial court, Radcliffe, J., however, denied these motions and admitted this evidence when the case was tried to the jury, which rendered a verdict in favor of the defendants.⁷ Thereafter, the trial court denied the plaintiff's motion to set aside the verdict, and rendered judgment for the defendants in accordance with the jury's verdict. This appeal followed.

On appeal, the plaintiff claims that the trial court improperly denied his motions in limine to preclude, and overruled his objections to, the admission of evidence that included: (1) testimony by Camel that he had informed the plaintiff that nerve damage was a risk of the microdiscectomy; and (2) notes to that effect from the preoperative consultation between the plaintiff and Camel. The plaintiff contends that this evidence was irrelevant with regard to the medical malpractice claim, and that even if relevant, the evidence was inadmissible under § 4-3 of the Connecticut Code of Evidence⁸ because its confusing and prejudicial effects exceeded its probative value. In response, the defendants claim that this evidence was proof of risk and, therefore, relevant to prove that malpractice did not necessarily occur because a dural tear and arachnoiditis may occur with even a properly performed microdiscectomy. The defendants also contend that any impropriety was rendered harmless by the cumulative nature of the evidence, as well as the trial court's jury instructions. We conclude that the trial court improperly admitted this evidence, but that the impropriety was harmless.

The record reveals the following additional facts and procedural history. After hearing argument on multiple days of trial about the issues raised by the plaintiff's motions in limine, the trial court concluded that evidence of the risks of the procedure was relevant with regard to whether the plaintiff had proven that his injuries were the result of a breach of the standard of care. The trial court acknowledged that Camel himself could testify about the risks of the procedure. The trial court also, however, concluded that because there was no claim of lack of informed consent in this case; see footnote 3 of this opinion; evidence about whether the plaintiff understood the risks "could cause confusion and could lead a jury to think that [the] fact that someone had signed this; he had somehow consented to it or assumed the risks." Thus, the trial court determined that evidence that the plaintiff had understood the risks of the procedure was both irrelevant and could have prejudice exceeding its probative value. Indeed, the trial court emphasized that it would not permit the words "informed consent" to be used.

The trial court, therefore, refused to admit the hospital's consent form into evidence. The court did, however, admit Camel's testimony and the office consultation notes, but only after ordering redacted portions of those notes indicating that the plaintiff understood the risks of the procedure as explained to him.⁹ Finally, at a subsequent argument on this issue, the trial court also noted that the risk of prejudice would be mitigated because it would charge the jury "that simply because something is a risk in the procedure, and it happens, doesn't mean that the defendant is not liable in the event of the breach in the standard of care."

Thus, on appeal, the plaintiff first challenges the admissibility of Camel's testimony that he had informed the plaintiff of the risks of the surgery, including "the risk of infection, which is present in every operation; the small and remote risk of bleeding that requires transfusion; weakness in the legs; numbness; bowel and bladder dysfunction; [cerebral spinal fluid] leak, which really means a postoperative [cerebral spinal fluid] leak; and instability. Instability occurs after discectomy rarely, but more commonly occurs in the mid or higher lumbar sites at L3-4 and L2-3 because unlike the models which we'll see or you have seen each level is not exactly the same. The anatomy changes. The relationship of the joints to the disk space change. And so that in an L3-4 disk herniation there is a higher risk that you are going to remove part of the facet joint. And that—when you have a patient with a disk herniation and you have to remove part of the facet joint there is a risk of instability. If you develop instability other symptoms can occur like back pain and leg pain. And often times when the instability is traumatic, after surgery then patients need another operation, which is the reason why we talk about it and that's called a lumbar fusion."¹⁰

The plaintiff also challenges the trial court's admission into evidence of the redacted version of Camel's notes from his November 30, 1998 consultation with the plaintiff. Those notes, as redacted, state in relevant part: "We discussed the rationale for microdiscectomy at the L3-4 level. . . . The risks of surgery were discussed among which include infection, bleeding, weakness, numbness, bowel and bladder dysfunction, and [cerebral spinal fluid] leak, and instability. . . ."¹¹

"The law defining the relevance of evidence is well settled. Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue. . . . The trial court has wide discretion to determine the relevancy of evidence . . . . Every reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of...