Krattenstein v. Thomas

• Citation: 509 A.2d 1077,7 Conn.App. 604
• Decision Date: 10 June 1986
• Docket Number: No. 3711,3711
• Court: Connecticut Court of Appeals
• Parties: Marilyn KRATTENSTEIN v. John M. THOMAS et al.

Page 1077

509 A.2d 1077

7 Conn.App. 604

Marilyn KRATTENSTEIN v. John M. THOMAS et al.

No. 3711.

Appellate Court of Connecticut.

Argued Feb. 5, 1986.

Decided June 10, 1986.

Gregory C. Willis, Bridgeport, with whom was David W. Skolnick, New Haven, for appellant (plaintiff).

Michael D. Neubert, Hartford, for appellee (defendant Norman Gahm).

DUPONT, Chief Judge.

The plaintiff appeals from the judgment rendered pursuant to a jury verdict for the defendant physician, Norman Gahm, in this medical malpractice action. ¹ The plaintiff filed a motion to set aside the verdict which was denied. All of the issues on appeal concern the trial court's charge to the jury. The plaintiff claims that the trial court erred: (1) in charging the jury that a physician is not liable for bona fide errors in judgment; (2) in charging the jury on the definition of the term "immediate"; (3) in failing to charge the jury on the issue of a physician's vicarious liability; (4) in failing to instruct the jury that they could find negligence based upon the defendant's own testimony; and (5) in failing to instruct the jury as to the duration of a surgeon's duty of care to his patient.

Certain relevant facts are not in dispute. The plaintiff suffered from back pain as early as February, 1973. She consulted the defendant who was then a practicing neurological surgeon with six years experience. He suggested that she undergo further testing at Hartford Hospital. The plaintiff was admitted to the hospital where it was determined that the plaintiff suffered from a herniated disc in her lower back. The defendant operated on the plaintiff, which involved the removal of ruptured disc material. Following this surgery, the plaintiff experienced a temporary inability to void, a common condition following such an operation. The plaintiff regained normal bladder function after a few days. She was discharged from the hospital on April 19, 1973.

Approximately eleven months later, the plaintiff was still experiencing back pain. On March 10, 1974, she was admitted to Hartford Hospital, still under the care of the defendant. More tests were performed which indicated an extradural defect in approximately the same area as the prior surgery. On March 12, 1974, the defendant operated on the plaintiff for the second time, again removing ruptured disc material. The plaintiff's substituted complaint alleges that it was during this second operation and the attendant postoperative care that the defendant acted negligently.

The plaintiff alleged that during this operation, the defendant retracted certain dura matter ² in such a way as to injure those nerves which control the bladder. Following this second operation, the plaintiff again experienced an inability to void. This condition necessitated catheterization to relieve the plaintiff's overdistended bladder. The condition, however, did not go away as it had before. On March 19, 1974, Bert B. Berlin, a urologist, examined the plaintiff at the defendant's request, to determine the cause of the plaintiff's difficulty. Subsequent to the initial consultation by Berlin, the plaintiff continued to experience an inability to void. The plaintiff was discharged from the hospital on April 10, 1974. She continued to experience an inability to void which required the continued use of a Foley catheter. She visited the defendant's office after her discharge from the hospital. She was readmitted to the hospital on July 10, 1974, for one week under the care of Berlin. She was last seen by the defendant on September 24, 1974. Since that time, she contends that her condition has deteriorated and that she will require further surgery to remedy her bladder dysfunction, including procedures resulting in the insertion of a permanent artificial pathway for urination.

I

The plaintiff's first claim on appeal is that the trial court erred when it charged the jury that a physician is ordinarily not liable for bona fide errors in judgment. The plaintiff claims that such a charge is erroneous and serves only to confuse the jury by implying that the defendant will not be liable for negligent conduct, absent evidence that he acted in bad faith. The plaintiff cites Logan v. Greenwich Hospital Assn., 191 Conn. 282, 299, 465 A.2d 294 (1983) in support of this claim.

It is clearly error for a trial court to instruct a jury that a physician is not liable for bona fide errors in judgment. See Logan v. Greenwich Hospital Assn., supra; Levett v. Etkind, 158 Conn. 567, 576, 265 A.2d 70 (1969); Green v. Stone, 121 Conn. 324, 330, 185 A. 72 (1936); Sleavin v. Greenwich Gynecology & Obstetrics, P.C., 6 Conn.App. 340, 346, 505 A.2d 436, cert. denied, 199 Conn. 807, 508 A.2d 32 (1986). Such a statement is inaccurate and tends to obfuscate the minimum standard of professional conduct. "Errors in judgment which occur with the best intentions constitute negligence if they result from a failure to use reasonable care." Logan v. Greenwich Hospital Assn., supra. A determination that the instruction was erroneous, however, does not end our inquiry. See Sleavin v. Greenwich Gynecology & Obstetrics, P.C., supra, 347, 505 A.2d 436. We must consider the charge as a whole to determine whether the inclusion of the erroneous statement so distorted the charge as to preclude a fair presentation of the case to the jury, thereby resulting in an injustice. Magnon v. Glickman, 185 Conn. 234, 244, 440 A.2d 909 (1981). " 'The charge will ordinarily be sustained if it meets this test, although it may not be exhaustive, perfect or technically accurate. Castaldo v. D'Eramo, 140 Conn. 88, 94, 98 A.2d 664 (1953).' Farley v. T.R.W., Inc., 4 Conn.App. 191, 193-94, 493 A.2d 268 (1985)." Sleavin v. Greenwich Gynecology & Obstetrics, P.C., supra, 6 Conn.App. 344, 505 A.2d 436.

The jury charge on the defendant's standard of care was as follows: "Negligence on the part of a physician or surgeon is a failure to exercise that degree of reasonable and ordinary care, diligence and skill in diagnosis and treatment of his patient that is ordinarily possessed and exercised by physicians engaged in the same line of practice.... A physician or surgeon is ordinarily not liable for bona fide errors in judgment unless he has failed to use proper and reasonable care in the exercise of his operation and [during the] post-operative days. He is liable only if he fails to use a proper degree of skill and care in making a diagnosis and treating a patient." There was no allegation in the complaint that the defendant acted in bad faith. Nor does the plaintiff allege that such a claim was made during the trial. We also note that the trial court correctly stated the applicable standard of care three times in its charge. Only once did it include the erroneous language regarding bona fide errors in judgment. From our review of the charge as a whole, we conclude that the erroneous instruction could not have misled or confused the jury. See Megin v. Carney, 148 Conn. 130, 133, 167 A.2d 855 (1961); Sleavin v. Greenwich Gynecology & Obstetrics, P.C., supra, 6 Conn.App. 348, 505 A.2d 436.

II

The plaintiff's second claim of error concerns the trial court's instruction regarding the scope of the defendant's duty of care to the plaintiff during the "immediate postoperative period." The plaintiff complains that the trial court's definition of the term "immediate" as meaning "presently, without any substantial interval of time elapsing" was too narrow and precluded the jury from finding liability based upon allegedly negligent acts occurring several days after the surgery. In charging the jury on this claim, the trial court instructed the jury as follows: "In deciding the [issue of the defendant's negligence during] the immediate postoperative period, it will be your duty to determine what responsibility there was during that period and for how far that period extended. You are the triers of fact, the ultimate arbitors as to what those terms mean...." The court assisted the jury in its deliberation on this issue by reading to the jurors two definitions of the term "immediate," one from Webster's Third New International Dictionary ³ and another from O'Brien v. Wise & Upson Co., 108 Conn. 309, 313, 143 A. 155 (1928). The O'Brien case concerned an injury resulting in an immediate inability to work. The trial court's quote from the O'Brien case was as follows: " 'The word "immediately" does not mean instantly, in the sense that a man shall be totally disabled from the very second of the accident which has caused the injury.... "Immediately" means presently or without any substantial interval of time elapsing.' " (Emphasis added.) The court concluded its instruction on this issue by pointing out the conflicting arguments as to the duration of the defendant's responsibility for care of the plaintiff's bladder problem. The court summarized the evidence as allowing a finding that the defendant was no longer responsible for the plaintiff's bladder problem as early as when Berlin was called in as a consultant or as late as her discharge from the hospital. The court left the resolution of this discrepancy "for you [the jury] to determine from all the evidence in the case."

The plaintiff objected to the reading of a portion of the O'Brien case without also reading the sentence which followed. That excluded portion stated "[a]s judicially construed, however, ['immediately'] is a word of relative significance, much in subjection to its grammatical connection, and used with more or less latitude according to the subject to which it is applied." O; Brien v. Wise & Upson Co., supra, 312, 143 A. 155. We find that the trial court's charge was sufficient to allow the jurors to conclude that they could find that the defendant was responsible for the treatment of the plaintiff's bladder problem as late as the date she left the hospital. Reviewing the charge as a whole, we find that it was accurate and fairly presented the...