Janusauskas v. Fichman

• Decision Date: 22 July 2003
• Docket Number: (SC 16823)
• Citation: Janusauskas v. Fichman, 264 Conn. 796, 826 A.2d 1066 (Conn. 2003)
• Court: Connecticut Supreme Court
• Parties: ALBERT JANUSAUSKAS v. RICHARD A. FICHMAN.

264 Conn. 796

826 A.2d 1066

ALBERT JANUSAUSKAS v.RICHARD A. FICHMAN.

(SC 16823)

Supreme Court of Connecticut.

Argued April 23, 2003.

Officially released July 22, 2003.

Sullivan, C. J., and Borden, Norcott, Katz and Palmer, Js.Kerry R. Callahan, with whom was Barbara A. Frederick, for the appellant-appellee(defendant).

Edward F. Hennessey, with whom was Linda L. Morkan, for the appellee-appellant(plaintiff).

Opinion

KATZ, J.

This certified appeal and cross appeal¹ arise from an action brought by the plaintiff, Albert Janusauskas, against the defendant, Richard A. Fichman, an ophthalmologist.The defendant claims, in his appeal, that the Appellate Court improperly reversed the portion of the trial court's judgment that had directed a verdict in his favor on the plaintiff's breach of contract claim.The plaintiff claims, in his cross appeal, that the Appellate Court improperly affirmed the portion of the trial court's judgment that had directed a verdict in favor of the defendant on the plaintiff's claim under the Connecticut Unfair Trade Practices Act (CUTPA), General Statutes § 42-110a et seq.Because we agree with the defendant and disagree with the plaintiff, we affirm in part, and reverse in part, the judgment of the Appellate Court.

The jury reasonably could have found the following facts.²The plaintiff suffers from severe myopia, or near-sightedness.Due to this condition, he has needed corrective lenses since childhood.Sometime in the late 1980s, the plaintiff learned of radial keratotomy (RK), a surgical procedure designed to correct myopia.The plaintiff believed that RK might cure his myopia and eliminate the need for eyeglasses or contact lenses.He therefore consulted with his optometrist and several ophthalmologists, at least one of whom told him that his myopia was too severe for RK to be effective.

Sometime in late 1992 or early 1993, the plaintiff saw or heard an advertisement for the defendant's ophthalmology practice.The advertisement indicated that the defendant was offering the RK procedure, and that this procedure could cure nearsightedness.On the basis of this advertisement, the plaintiff consulted with the defendant regarding the possibility of RK surgery.He told the defendant that his goal was to be able to see clearly without the aid of eyeglasses or contact lenses.The defendant indicated his confidence that, due to recent advancements in the field, RK could improve the plaintiff's uncorrected vision to 20/40 or 20/50 in his left eye and 20/20 in his right eye.The defendant explained that he successfully had performed a variation of RK on several patients with severe myopia, and that he believed that the plaintiff was a candidate for this procedure.

The defendant recommended a "monovision" approach to the plaintiff's treatment.Under this approach, one eye is designated as the "near vision" eye, while the other eye is designated as the "distance vision" eye.The defendant determined that, because the plaintiff's myopia was worse in his left eye, his left eye would become the plaintiff's near vision eye while his right eye would become the distance vision eye.In May, 1993, the plaintiff visited the defendant's office for an "RK workup" to prepare for surgery.As part of this preparation, the plaintiff took a true/false quiz titled "Radial Keratotomy Informed Consent."³A member of the defendant's staff then reviewed the correct answers with the plaintiff, who subsequently signed a form that stated, "I have taken the informed consent quiz and am satisfied with my understanding of the procedure."The plaintiff also signed a consent form, which provided in relevant part: "The results of surgery cannot be guaranteed."⁴Finally, the defendant provided the plaintiff with informational materials explaining the RK procedure.

Approximately one week later, on May 21, 1993, the defendant performed the RK procedure on the plaintiff's left eye.Postoperative examinations in May, July and August of that year revealed that the plaintiff's uncorrected near vision in that eye had improved to 20/40.A subsequent examination in September, 1993, revealed that this improvement had regressed, however, possibly as a result of the healing process.In addition, the plaintiff's left eye vision had become distorted, and he experienced a glare effect that impeded his ability to drive.Consequently, the defendant performed enhancement surgery on the plaintiff's left eye in September, 1993.After the second surgery, however, the plaintiff continued to experience distortion and glare in his left eye, particularly at night.Although postoperative examinations revealed some reduction in the plaintiff's left eye myopia, the defendant decided that the plaintiff should continue to use a corrective lens for that eye until it healed fully.

The defendant examined the plaintiff eight times between September, 1993, and September, 1994.During this time, the plaintiff's corrected vision in his left eye ranged from 20/25 to 20/80.On March 20, 1995, an optometrist in the defendant's office reported that the plaintiff's left eye vision was "stable."Four days later, however, the plaintiff told the defendant that both the near and distance vision in his left eye was distorted.The defendant fitted the plaintiff with reading glasses.The defendant continued to treat the plaintiff through the end of 1995.As a result of his dissatisfaction with the result of his surgeries, the plaintiff consulted with two other ophthalmologists, and thereafter terminated his treatment with the defendant.The defendant refunded the plaintiff's prepayment, with interest, for the surgery that never was performed on the plaintiff's right eye.Additional facts will be provided as necessary.

The plaintiff brought this action against the defendant seeking damages for the impairment to his vision.The plaintiff subsequently withdrew five of the eight counts of his revised complaint.The remaining counts alleged: (1) medical malpractice and lack of informed consent; (2) breach of contract; and (3) a violation of CUTPA.Specifically, the medical malpractice claim was predicated on the representations allegedly made by the defendant regarding the results that the plaintiff could expect and the defendant's alleged misdiagnosis of the plaintiff's suitability for RK.At the close of the plaintiff's case-in-chief, the defendant moved for a directed verdict on the breach of contract and CUTPA claims.The trial court granted the motion and directed a verdict in favor of the defendant on both claims.Specifically, with respect to the breach of contract claim, the trial court noted that the evidence showed merely that the plaintiff had "interpreted [the defendant's] confidence" regarding the potential results as a guarantee, and the court therefore concluded that the evidence was insufficient to support a finding of a meeting of the minds required to form a contract.With respect to the CUTPA claim, the trial court concluded, on the basis of our decision in Haynes v. Yale-New Haven Hospital,243 Conn. 17, 699 A.2d 964(1997), that the evidence was insufficient to support a finding of a CUTPA violation because the claim did not pertain to an entrepreneurial aspect of the defendant's medical practice.The court submitted the malpractice and lack of informed consent claim to the jury, which found for the defendant.Accordingly, the trial court rendered judgment in favor of the defendant.

The plaintiff subsequently appealed to the Appellate Court, challenging, inter alia, the trial court's judgment based on the granting of directed verdicts on the breach of contract and CUTPA claims.⁵The Appellate Court affirmed in part, and reversed in part, the judgment of the trial court.Janusauskas v. Fichman,68 Conn. App. 672, 793 A.2d 1109(2002).The Appellate Court reversed the trial court's judgment on the breach of contract claim.After summarily concluding that there had been no express contract between the parties, the Appellate Court held that the evidence was sufficient to permit the jury to find the existence of an implied contract based on the conduct of the parties.Id., 678.Specifically, the court concluded that "[t]he defendant's representations regarding the plaintiff's vision improvement through RK were definite enough to manifest his intention to immediately undertake to improve the plaintiff's vision through RK."Id.Accordingly, the Appellate Court remanded the case to the trial court to allow the plaintiff to pursue this claim under an implied contract theory.Id., 684.The Appellate Court affirmed the trial court's judgment on the CUTPA claim, concluding that the trial court properly had determined that the evidence was insufficient to establish a CUTPA violation because it did not pertain to the "`entrepreneurial or commercial aspects'" of the defendant's medical practice.Id., 680, quotingHaynes v. Yale-New Haven Hospital,supra, 243 Conn. 34.This appeal and cross appeal followed.

As a preliminary matter, we note that this appeal is before us pursuant to the granting of a directed verdict.The standards for appellate review of a directed verdict are well settled."Directed verdicts are not favored....A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion....In reviewing the trial court's decision to direct a verdict in favor of a defendantwe must consider the evidence in the light most favorable to the plaintiff."(Citations omitted; internal quotation marks omitted.)Godwin v. Danbury Eye Physicians & Surgeons, P.C.,254 Conn. 131, 135-36, 757 A.2d 516(2000);Petyan v. Ellis,200 Conn. 243, 244, 510 A.2d 1337(1986);Puro v. Henry,188 Conn. 301, 303, 449 A.2d 176(1982).Although "it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven ... it may not resort to mere conjecture and speculation."(...