Kos v. Lawrence + Mem'l Hosp.

• Decision Date: 10 March 2020
• Docket Number: SC 20256
• Parties: Laura KOS et al. v. LAWRENCE + MEMORIAL HOSPITAL et al.
• Court: Connecticut Supreme Court

334 Conn. 823

225 A.3d 261

Laura KOS et al.

v.LAWRENCE + MEMORIAL HOSPITAL et al.

SC 20256

Supreme Court of Connecticut.

Argued October 15, 2019

Officially released March 10, 2020

Alinor C. Sterling, with whom, on the brief, was Kathleen L. Nastri, Bridgeport, for the appellants (plaintiffs).

Stuart C. Johnson, with whom were M. Karen Noble and, on the brief, Michael R. McPherson, Hartford, for the appellees (defendant Elisa Marie Girard et al.).

Robinson, C.J., and Palmer, McDonald, D'Auria, Mullins, Kahn and Ecker, Js.

D'AURIA, J.

In this medical malpractice case, the plaintiffs, Laura Kos and Michael Kos,¹ appeal following the trial court's denial of their motion to set aside the jury's verdict in favor of the defendants Elisa Marie Girard and Physicians for Women's Health, LLC,² on the ground that the trial court improperly instructed the jury by (1) including a charge on the acceptable alternatives doctrine, and (2) limiting their allegations regarding Girard's breach of the standard of care. Alternatively, they request that this court abolish the acceptable alternatives doctrine. Although we agree with the plaintiffs that the trial court improperly instructed the jury on the doctrine of acceptable alternatives, because we find this error harmless and because we decline to take this opportunity to abolish the acceptable alternatives doctrine, we affirm the judgment of the trial court.

Reading the record, as we must, in the light most favorable to sustaining the verdict for the defendants, reveals that the jury reasonably could have found that, on August 19, 2011, the plaintiff gave birth to a son at Lawrence + Memorial Hospital in New London. Girard, who was employed by Physicians for Women's Health, LLC, in Groton, was the physician on call at the time. During labor, after the plaintiff had been pushing for approximately two hours, Girard decided to use a vacuum to assist in the delivery. When Girard's use of the vacuum was unsuccessful, Girard performed a median episiotomy—a surgical cut made in the perineum (the muscular area between the vagina and the anus) from the vagina toward the rectum—to reduce the tight band of tissue around the baby's head that restricted his movements. Girard testified that this episiotomy

was the equivalent of a second degree laceration. See footnote 3 of this opinion.

After performing the episiotomy

, Girard successfully delivered the plaintiffs' son. Because Girard had used a vacuum and had performed an episiotomy, the plaintiff was at risk of sustaining an extension of the episiotomy, requiring Girard to inspect the plaintiff's vaginal tissue. An extension of the episiotomy is diagnosed by degree, with first degree involving the least amount of tissue trauma and fourth degree involving the most severe trauma.³

In conducting the inspection, Girard first inspected the plaintiff's cervix and surrounding tissue, looking for tears, bleeding, or hematomas

. Upon finding no issues, Girard then used a laparotomy pad (gauze) to block any bleeding from the uterus, which usually bleeds after a vaginal birth, and to have an unobstructed view of the lower vagina, perineal tissue, and rectum. Girard focused on the area of the episiotomy, inspecting for an extension. Through visual inspection and physical manipulation by gloved hands, Girard determined that the episiotomy had extended through the plaintiff's anal sphincter, which was separated. Because of the injury to the anal sphincter, Girard was able to see the outer aspects of the rectal mucosa and to feel that it was intact. Because the rectal mucosa was intact but the anal sphincter was torn, Girard diagnosed the plaintiff with a third degree extension of the episiotomy, which she then repaired. See footnote 3 of this opinion.

After repairing the tear, Girard inspected the repair and conducted a digital rectal exam. Although Girard had examined the outer aspect of the rectal mucosa before the repair, she wanted to feel the internal side to ensure that the perineal body and sphincter muscles were adequately repaired, that bulk and tone were appropriate, that thickness between the tissue was appropriate, and that there were no breaks or defects. There was no indication of a tear or defect in the plaintiff's rectal mucosa. Girard did not conduct a digital rectal exam before the repair because she was trained to perform the exam after the repair to prevent contamination to the open wound

.

The day after the delivery, prior to the plaintiff's discharge from the hospital, the repair of the perineum was inspected and found to be intact. The plaintiff's medical records do not indicate that, as of that time, she was complaining of discharging stool or flatus (gas) from her vagina. In a follow-up appointment, however, on September 1, 2011, she reported vaginal discomfort and stool coming out of her vagina. An opening in the episiotomy

site of less than half a centimeter was noted, along with discharge that looked and smelled like stool. In a subsequent follow-up appointment with another physician, although the plaintiff did not bring any medical records with her, she reported that she had sustained a fourth degree extension of the episiotomy

during birth and a rectovaginal fistula—an opening between her vagina and rectum. At that time, she complained of perineal pain and was concerned about having developed an abscess. An examination did not establish the existence of a rectovaginal fistula, but the plaintiff's symptoms—including the discharge and the smell—were consistent with a rectovaginal fistula. The opening in the vagina that previously had been noted was not detected. Additionally, the examination established that the plaintiff suffered from a sphincter separation.

The plaintiff later reported concerns that she had an infection, complaining of drainage from a hole in her perineum. She also complained of pain and redness, which, along with the drainage, were signs of infection. No rectovaginal fistula

was detected. Upon further examination, Richard Bercik, an urogynecologist, noted that the episiotomy repair was intact but discovered a small rectovaginal fistula just inside the posterior fourchette and sphincter complex. John Gebhart, a urogynecologist at the Mayo Clinic, also noted the existence of the rectovaginal fistula, as well as granulation tissue (a sign of infection), and two other openings in the vaginal wall, although neither led to the rectum. The size of the rectovaginal fistula was described as "a very small hole ...." The plaintiff thereafter underwent surgery to repair the rectovaginal fistula and the sphincter separation.

The plaintiffs later filed this medical malpractice case. In counts one and three of the operative complaint the plaintiff alleged claims of medical malpractice against the defendants. In counts two and four, the plaintiffs alleged claims of loss of consortium against the defendants on behalf of Michael Kos. Specifically, they alleged that Girard was negligent in that she had failed to identify a fourth degree extension of the median episiotomy

, failed to perform a proper and adequate episiotomy repair, and failed to properly examine the episiotomy repair after it was complete. They alleged that Physicians for Women's Health, LLC, Girard's employer, was vicariously liable for Girard's negligence. They further alleged that, as a result of Girard's negligence, the plaintiff sustained serious injuries, including a rectovaginal fistula and an anal sphincter defect.

At trial, the plaintiffs presented the plaintiff's medical records, testimony from physicians who treated her after the birth of her son, and expert testimony from Brett C. Young, a maternal fetal medicine specialist, obstetrician and gynecologist. The defendants presented expert testimony from Frank Wen-Yung Ling, an obstetrician and gynecologist, as to the standard of care, and from Michael K. Flynn, a urogynecologist, as to causation.

At the close of evidence, the defendants requested that the trial court include a charge on the acceptable alternatives doctrine concerning the standard of care for conducting the digital rectal exam. The plaintiffs objected, but the trial court overruled the objection and gave the requested charge. After requesting clarification of the court's instructions; see part I A of this opinion; the jury reached a verdict in the defendants' favor. According to the jury interrogatories, the jury found that the plaintiffs had sustained their burden of establishing the standard of care but had failed to sustain their burden of establishing that Girard had breached the standard of care. The plaintiffs then filed a motion to set aside the verdict, arguing that the jury had been improperly instructed on the doctrine of acceptable alternatives. The trial court denied the motion. The plaintiffs appealed to the Appellate Court, and the appeal was transferred to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. Additional facts will be set forth as required.

I

The plaintiffs first claim that the trial court improperly instructed the jury by including a charge on the acceptable alternatives doctrine because no evidence supported the charge. The plaintiffs argue that, to give the instruction, an expert had to testify that there was more than one proper technique for conducting the digital rectal exam, and that the experts' dueling opinions about when to conduct the exam—before or after the episiotomy

repair—was not the equivalent of testimony that either option was an acceptable alternative.⁴

The plaintiffs further contend that this improper charge was harmful because it was inapplicable and its inclusion interfered with the jury's assessment of credibility by exculpating the defendants and implying that Girard's actions were reasonable. Alternatively, the plaintiffs ask this court to abolish the acceptable alternatives doctrine.

The defendants respond that the acceptable alternatives charge was proper...