Lambert v. Stovell, No. 12862

CourtSupreme Court of Connecticut
Writing for the CourtSANTANIELLO
Citation205 Conn. 1,529 A.2d 710
PartiesFrederick C. LAMBERT v. Peter B. STOVELL.
Decision Date18 August 1987
Docket NumberNo. 12862

Page 710

529 A.2d 710
205 Conn. 1
Frederick C. LAMBERT
v.
Peter B. STOVELL.
No. 12862.
Supreme Court of Connecticut.
Argued March 6, 1987.
Decided Aug. 18, 1987.

[205 Conn. 2]

Page 711

Patricia Kilkenny, with whom, on brief, were David W. Skolnick and Terence S. Hawkins, New Haven, for appellant (plaintiff).

Arnold S. Bai, with whom was Garie S. Mulcahey, Bridgeport, for appellee (defendant).

Before ARTHUR H. [205 Conn. 1] HEALEY, SHEA, SANTANIELLO, CALLAHAN and DONALD T. DORSEY, JJ.

[205 Conn. 2] SANTANIELLO, Associate Justice.

This is an appeal from a judgment rendered for the defendant in a malpractice action. The jury could reasonably have found the following facts. The plaintiff, Frederick C. Lambert, consulted with the defendant, Peter B. Stovell, a physician, in April, 1977, for the treatment of an injured ankle. After several consultations and the examination of preoperative x-rays, the defendant recommended that the plaintiff undergo an ankle fusion procedure. The plaintiff consented, and surgery was performed by the defendant on June 1, 1977. The plaintiff was discharged from the hospital on June 10, 1977, and was readmitted on June 28, 1977, after the defendant discovered that the plaintiff had developed an ankle infection. The plaintiff was informed about the infection by the defendant when he was rehospitalized. During July and August of 1977, the defendant discovered, and told the plaintiff, that there was a non-union at the fusion site. As a result of this disclosure, the plaintiff sought a second opinion on August 23, 1977, from Dr. Howard Rosen of New York City, who confirmed the fact that there was an infection in the ankle and a non-union of the joint, both of which would require further treatment. The defendant last treated the plaintiff on November 16, 1977.

On November 29, 1977, the plaintiff became a patient of Dr. Rosen, who subsequently performed two surgical procedures on the plaintiff's ankle. The first procedure was performed on December 1, 1977, in order to remove the infected bone. A second surgical procedure was performed on June 6, 1978, in order to expedite fusion of the ankle.

[205 Conn. 3] The plaintiff instituted this action against the defendant on March 5, 1980, based upon the doctrine of informed consent, alleging that the defendant had not sufficiently informed him of the material risks and consequences of the original surgical procedure or of the fact that his preoperative x-rays had revealed an essentially normal ankle. The defendant denied the material allegations of the plaintiff's complaint and interposed a special defense claiming that the two year statute of limitations for such an action had run. See General Statutes § 52-584. At the conclusion of the evidence, the court charged the jury on the doctrine of informed consent and, over the plaintiff's objection, on the two year statute of limitations as set forth in § 52-584. Thereafter, the jury returned a general verdict in favor of the defendant.

The plaintiff has appealed, claiming that the trial court erred in: (1) failing to charge the jury on the three year statute of limitations contained in General Statutes § 52-577; (2) charging the jury on the two year period of limitation contained in § 52-584; (3) failing to instruct the jury that the two year statute of limitations had been tolled until such time as the plaintiff

Page 712

discovered or should have discovered all of the information allegedly material to his decision to submit to surgery; and (4) failing to instruct the jury that the plaintiff's cause of action did not accrue until he discovered or should have discovered certain material medical information allegedly concealed from him. We find no error.

The plaintiff argues that a complaint based upon lack of informed consent does not allege malpractice action, governed by § 52-584, 1 but an intentional tort based [205 Conn. 4] upon assault and battery, governed by § 52-577. 2 The defendant, however, contends that lack of informed consent is malpractice by a physician under § 52-584 and that, even if that statute were inapplicable, any error in charging the jury was cured by the rendering of a general verdict by the jury.

The trial court refused the plaintiff's request to charge the jury on § 52-577 and charged the jury only on the two year provision of § 52-584. The three year provision of § 52-577 is applicable to all tort actions other than those excepted therefrom by § 52-584 or other sections. United Aircraft Corporation v. International Assn. of Machinists, 161 Conn. 79, 107, 285 A.2d 330 (1971), cert. denied, 404 U.S. 1016, 92 S.Ct. 675, 30 L.Ed.2d 663 (1972). "The theory of battery as a basis for recovery against a physician has generally been limited to situations where he fails to obtain any...

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49 practice notes
  • Champagne v. Raybestos-Manhattan, Inc., RAYBESTOS-MANHATTA
    • United States
    • Supreme Court of Connecticut
    • 8 Agosto 1989
    ...of reasonable care, that he or she has been injured and that the defendant's conduct caused such injury. Id.; see Lambert v. Stovell, 205 Conn. 1, 6, 529 A.2d 710 From the record that we do have, we can determine that the plaintiff's cause of action in this case accrued at a time no earlier......
  • Fajardo v. Boston Scientific Corporation, SC 20455
    • United States
    • Supreme Court of Connecticut
    • 16 Diciembre 2021
    ...the defendant and [3] a causal connection between that breach and [4] the harm to 341 Conn. 548 the plaintiff." Lambert v. Stovell , 205 Conn. 1, 6, 529 A.2d 710 (1987). Only the second element, duty, is at issue in the present appeal. In the realm of informed consent, as throughout th......
  • In re State Police Litigation, Civ. No. B-89-606 (TFGD).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • 16 Mayo 1995
    ...the elements of the cause of action, see Sandstrom v. Chemlawn Corp., 759 F.Supp. 84, 86 n. 1 (D.Conn.1991); Lambert v. Stovell, 205 Conn. 1, 6, 529 A.2d 710 (1987), while Title III sets a two-year limitations period for federal wiretap claims. See 18 U.S.C. § 2520(e). Plaintiffs argue that......
  • Ives v. NMTC, Inc., No. CV970073322S
    • United States
    • Superior Court of Connecticut
    • 16 Diciembre 1999
    ...or in the exercise of reasonable care should have discovered, the essential elements of a cause of action." Lambert v. Stovell, 205 Conn. 1, 6, 529 A.2d 710 (1987). The plaintiff maintains that "the key inquiry must be when the plaintiff knew, or should have known, of the facts wh......
  • Request a trial to view additional results
49 cases
  • Champagne v. Raybestos-Manhattan, Inc., RAYBESTOS-MANHATTA
    • United States
    • Supreme Court of Connecticut
    • 8 Agosto 1989
    ...of reasonable care, that he or she has been injured and that the defendant's conduct caused such injury. Id.; see Lambert v. Stovell, 205 Conn. 1, 6, 529 A.2d 710 From the record that we do have, we can determine that the plaintiff's cause of action in this case accrued at a time no earlier......
  • Fajardo v. Boston Scientific Corporation, SC 20455
    • United States
    • Supreme Court of Connecticut
    • 16 Diciembre 2021
    ...by the defendant and [3] a causal connection between that breach and [4] the harm to 341 Conn. 548 the plaintiff." Lambert v. Stovell , 205 Conn. 1, 6, 529 A.2d 710 (1987). Only the second element, duty, is at issue in the present appeal. In the realm of informed consent, as throughout the ......
  • In re State Police Litigation, Civ. No. B-89-606 (TFGD).
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Connecticut)
    • 16 Mayo 1995
    ...the elements of the cause of action, see Sandstrom v. Chemlawn Corp., 759 F.Supp. 84, 86 n. 1 (D.Conn.1991); Lambert v. Stovell, 205 Conn. 1, 6, 529 A.2d 710 (1987), while Title III sets a two-year limitations period for federal wiretap claims. See 18 U.S.C. § 2520(e). Plaintiffs argue that......
  • Ives v. NMTC, Inc., No. CV970073322S
    • United States
    • Superior Court of Connecticut
    • 16 Diciembre 1999
    ...discovers, or in the exercise of reasonable care should have discovered, the essential elements of a cause of action." Lambert v. Stovell, 205 Conn. 1, 6, 529 A.2d 710 (1987). The plaintiff maintains that "the key inquiry must be when the plaintiff knew, or should have known, of the facts w......
  • Request a trial to view additional results

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