Janusauskas v. Fichman

• Decision Date: 19 March 2002
• Docket Number: (AC 19521)
• Citation: Janusauskas v. Fichman, 793 A.2d 1109, 68 Conn. App. 672 (Conn. App. 2002)
• Court: Connecticut Court of Appeals
• Parties: ALBERT JANUSAUSKAS v. RICHARD A. FICHMAN

68 Conn. App. 672

793 A.2d 1109

ALBERT JANUSAUSKAS v.RICHARD A. FICHMAN

(AC 19521)

Appellate Court of Connecticut.

Argued October 17, 2000.

Officially released March 19, 2002.

Foti, Mihalakos and Healey, JS.Edward F. Hennessey, for the appellant(plaintiff).

Kerry R. Callahan, with whom was Barbara A. Frederick, for the appellee(defendant).

Opinion

MIHALAKOS, J.

The plaintiff, Albert Janusauskas, appeals from the judgment rendered for the defendant, Richard A. Fichman, after the trial court denied the plaintiffsmotion to set aside the verdict and for a new trial.Specifically, the plaintiff claims that the court improperly (1) directed a verdict for the defendant on the plaintiffs breach of contract claim, (2) directed a verdict for the defendant on the plaintiffs claim under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq., (3) denied the plaintiff the right to cross-examine the defendant's expert witness and (4) charged the jury on the issues of negligence and lack of informed consent.We reverse the judgment of the trial court in part and affirm it in part.

The following facts and procedural history are relevant to our resolution of this appeal.The plaintiff filed an amended eight count complaint dated July 23, 1997, against the defendant, who is an ophthalmologist.The plaintiff subsequently withdrew five of the eight counts, leaving only the first count (medical malpractice/lack of informed consent), fourth count (breach of contractual warranty) and the seventh count (violation of CUTPA).The case proceeded to trial and, after the completion of the plaintiffs case, the defendant filed a motion for a directed verdict as to the fourth and seventh counts.At the close of the evidence, the court directed the jury to return a verdict in favor of the defendant on counts four and seven of the revised complaint.As directed, the jury returned a verdict for the defendant on counts four and seven.The jury also found for the defendant with regard to count one and awarded no damages to the plaintiff.The plaintiff then filed this appeal.

The jury reasonably could have found the following facts.In 1993, the plaintiff, who was fifty years old, first consulted the defendant concerning his severe myopia.¹Since grade school, the condition required the plaintiff to wear glasses with corrective lenses.Sometime in the 1980s, the plaintiff learned of a procedure called radial keratotomy (RK), the purpose of which is to reduce nearsightedness.The plaintiff consulted with several ophthalmologists to determine if the procedure would correct his nearsightedness so that he would no longer need to wear corrective glasses or contact lenses.Each physician told the plaintiff that his myopia was so great that he would not benefit from RK.

In 1991 or 1992, the defendant attended a two day seminar conducted by John Casebeer, a physician.The seminar included the sale of medical instruments and a marketing system for the creation of a profitable RK practice.After attending the seminar, the defendant began performing RK surgery and implementing the marketing plan.The defendant advertised on radio and ran more than 260 print ads between January and May, 1993.The defendant was performing up to thirty-five RK procedures a day at a cost of $1500 per surgery, with a $200 discount when patients paid in cash.

The plaintiff either read or heard one of the defendant's ads claiming that RK could cure nearsightedness.As a result, the plaintiff visited the defendant's place of business and read his brochure, which stated, among other things, that the defendant was one of the nation's leaders in the field of RK.The plaintiff told the defendant that his goal was to be able to see without the aid of glasses or contact lenses, and that other physicians had told him that he could not achieve that through RK.The defendant told the plaintiff that new procedures existed and that he had successfully operated on patients with myopia as severe as the plaintiff's.The defendant also told the plaintiff that he could achieve 20/40 or 20/50 vision, uncorrected, in his left eye and 20/20 vision, uncorrected, in his right eye.In reality, the defendant followed a chart obtained from the original seminar he attended, which told him how much improvement could be obtained depending on a patient's eyesight.The actual effect of the procedure, as laid out in the chart and according to prevailing opinion in the medical community at the time, was that no improvement in eyesight would be gained by the plaintiff through the RK procedure.The defendant further told the plaintiff that he, the defendant, was the "best in the business."

The defendant performed RK surgery on the plaintiff in May, 1993.Following the surgery, the plaintiffs myopia grew worse and his vision became subject to glare during the day and at night.The plaintiffs near vision also became blurred.When the plaintiff asked the defendant if he would achieve his vision goal, the defendant told him that a further enhancement would be required.The defendant performed an enhancement procedure on the plaintiffs eyes in September, 1993.The plaintiff experienced no improvement.

The defendant continued to treat the plaintiff through most of 1995, reassuring him that he needed to be patient and allow his eyes to heal to achieve his eyesight goal.In early 1996, the plaintiff saw Girard Nolan, an ophthalmologist, who advised him that he should not have had the RK surgery.Nolan testified at a 1997 deposition that he would not have performed RK surgery on the plaintiff and that the best outcome attainable for the plaintiff in 1993 was a lack of improvement.

The plaintiff later sought a medical opinion regarding his condition from Phillip Shelton, another ophthalmologist, who testified that the chances of the plaintiff achieving his vision goal as a result of the RK performed by the defendant were virtually nonexistent.

Our standard of review concerning directed verdicts is well settled."Directed verdicts are historically not favored . . . .A trial court should direct a verdict for a defendant if, viewing the evidence in the light most favorable to the plaintiff, a jury could not reasonably and legally reach any other conclusion than that the defendant is entitled to prevail. . . .In assessing the evidence, the court should weigh both direct and circumstantial evidence, including all reasonable inferences to be drawn therefrom."(Citations omitted; internal quotation marks omitted.)Kriz v. Coldwell Banker Real Estate,67 Conn. App. 688, 692, 789 A.2d 1091(2002).

I

The plaintiff's first claim is that the court improperly directed a verdict for the defendant with regard to count four of the plaintiff's complaint, which alleged a contract claim based on the breach of a promise, warranty or guaranty.We agree.

"A breach of contract claim is a distinct claim that may arise from the same facts and may exist where the physician and patient contract for a specific result."Rumbin v. Baez,52 Conn. App. 487, 491, 727 A.2d 744(1999)."A true implied contract can only exist where there is no express one.It is one which is inferred from the conduct of the parties though not expressed in words. . . .It is not fatal to a finding of an implied contract that there were no express manifestations of mutual assent if the parties, by their conduct, recognized the existence of contractual obligations."(Citation omitted; internal quotation marks omitted.)Sandella v. Dick Corp.,53 Conn. App. 213, 219, 729 A.2d 813, cert. denied, 249 Conn. 926, 733 A.2d 849(1999).

An implied "contractual promise cannot be created by plucking phrases out of context; there must be a meeting of the minds between the parties. . . .In order to support contractual liability, the [defendant's] representations must be sufficiently definite to manifest a present intention on the part of the [defendant] to undertake immediate contractual obligations to the plaintiff."(Citations omitted; internal quotation marks omitted.)Burnham v. Karl & Gelb, P.C.,50 Conn. App. 385, 389, 717 A.2d 811(1998), aff'd, 252 Conn. 153, 745 A.2d 178(2000).

The defendant told the plaintiff that through RK he could get the plaintiff's eyesight to 20/40 or 20/50, uncorrected, in his left eye and 20/20, uncorrected, in his right eye.Prevailing medical opinion at the time and the defendant's own surgical guidelines did not allow for that level of improvement, given the plaintiffs eyesight at that time and the state of RK technology.The plaintiff paid the defendant, underwent the procedure and experienced a worsening of his vision rather than an improvement.Following RK surgery, the plaintiff suffered glare during the day and at night, and his near vision became blurred.

When the plaintiff found that his eyesight was worse after RK, the defendant told him that a further enhancement would achieve the desired result of 20/50 or 20/ 40 vision, uncorrected, in his left eye and 20/20 vision, uncorrected, in his right eye.The plaintiff underwent an enhancement procedure performed by the defendant.The plaintiff experienced no improvement in his vision.There was no express contract between the defendant and the plaintiff.A contract can be inferred, however, from the conduct of the parties.The defendant's representations regarding the plaintiffs vision improvement through RK were definite enough to manifest his intention to immediately undertake to improve the plaintiffs vision through RK.The parties, further, through their actions, inferentially recognized the existence of their contractual obligations.The plaintiff paid the defendant, and the defendant performed the RK procedure on the plaintiffs eyes.The plaintiff then subjected himself to another procedure that the defendant performed to help achieve the result for which the parties originally had contracted.

"The rules controlling...