Levett v. Etkind

• Decision Date: 10 December 1969
• Citation: 265 A.2d 70,158 Conn. 567
• Court: Connecticut Supreme Court
• Parties: , 41 A.L.R.3d 1343 Ida LEVETT (Rose L. Greenberg, Executrix, Substituted Plaintiff) v. Meyer ETKIND.

Page 70

265 A.2d 70

158 Conn. 567, 41 A.L.R.3d 1343

Ida LEVETT (Rose L. Greenberg, Executrix, Substituted Plaintiff) v. Meyer ETKIND.

Supreme Court of Connecticut.

Dec. 10, 1969.

Alexander Winnick, New Haven, for appellant (plaintiff.) Lawrence W. Iannotti, New Haven, with whom, on the brief, was Morris Tyler, New Haven, for appellee (defendant).

Before KING, C.J., and ALCORN, HOUSE, THIM and RYAN, JJ.

RYAN, Associate Justice.

This is an action against the defendant, a physician, in which it is alleged that the plaintiff's decedent, Mrs. Ida Levett, went to the defendant's office as a patient; that she was advanced in age and infirm and used a cane for the purpose of supporting her body; and that while she was there she fell and was injured owing to the negligence of the defendant, his agents or servants in failing to assist her in disrobing in a dressing room in the defendant's offices and in leaving her alone in the dressing room unsupervised and unattended, when they knew or should have known that if she was permitted to disrobe unattended, unaided and unsupported she would be in danger of falling. In his answer, the defendant admitted that the decedent was in his office as a patient but denied that he was negligent in any way. The defendant also pleded by way of special defense that the decedent was offered assistance in disrobing by an employee of the defendant but refused the proffered assistance and would not allow the defendant's employee to assist her and thereby assumed any risk involved. The plaintiff denied all the allegations of the special defense. From the verdict and judgment for the defendant the plaintiff has appealed. The sole assignment of error urged in this court relates to the trial court's charge to the jury.

The correctness of the charge is determined by the claims of proof of the parties. Practice Book § 635; State v. Gyuro, 156 Conn. 391, 398, 242 A.2d 734, cert. denied, 393 U.S. 937, 89 S.Ct. 301, 21 L.Ed.2d 274. The plaintiff claimed to have proved the following facts: Mrs. Levett, the decedent, was a very sick woman who was not capable of doing anything for herself and had to be dressed and undressed. Upon going to the defendant's office on March 26, 1962, she used a cane and had to be helped by her daughter. In 1961 the defendant admitted the decedent to Gaylord Sanitarium. She was discharged from there on August 16, 1961, with a diagnosis of chronic brain syndrome with senile brain disease, arteriosclerosis and pulmonary emphysema. She was eighty-one years of age. The defendant examined the decedent at his office on August 29, 1961, and found her to be unstable, with a tendency to fall. He performed a Romberg test on her and found that she had a tendency to fall to her right and backwards. The Romberg test is a specific test for muscle coordination in which a person stands quietly, feet close together, eyes closed, arms at the side, and the doctor watches to determine if the person has the proper coordination. In this test of the decedent on August 29, 1961, she had fallen backwards. The defendant knew that she was feeble, that at times she was perfectly capable of dressing and undressing herself without difficulty, and that at other times she may have had difficulties. On March 26, 1962, the defendant first saw the decedent sitting in his waiting room. When she walked toward his office she was using a cane and the defendant's nurse walked beside her. The defendant advised his nurse to assist her in undressing because he thought she needed some assistance. The decedent fell in the dressing room without apparent reason. At this time the nurse was in the next room. The defendant knew that in permitting the decedent to dress or undress herself there was a possible risk involved. On the morning of March 26, 1962, the decedent appeared ill, as a chronic invalid would, but did not appear unusually feeble or weak. The defendant admitted that his judgment was wrong in permitting her to undress herself.

The defendant made the following claims of proof: On March 26, 1962, the decedent walked to the waiting room unassisted but was using a cane. She needed no physical assistance in walking or sitting or rising. The defendant never gave orders directing his nurse to insist on removing a patient's clothes. The nurse offered to help the decedent in the dressing room to take off the top part of her clothing, but the decedent told her not to do so and that she was perfectly capable of undressing herself and demanded that the nurse leave her to undress alone. The decedent looked weak, and the nurse waited in an adjacent room with the door ajar while the decedent took about ten minutes to undress. The decedent called for the nurse, who, upon entering the dressing room, saw the decedent sitting on the floor with her feet outstretched, facing the door. She had already disrobed down to her slip. The nurse had seen the decedent on other occasions when she came for a checkup. On such visits she had never permitted the nurse to help her to disrobe. Ten minutes was not a long time for an elderly woman to require in disrobing, and the decedent needed no help to disrobe. She had undressed herself a number of times before March 26, 1962. Most women prefer to undress in private. The defendant instructed his nurse not to insist on undressing a patient if the assistance was refused. The decedent was of sound mind on March 26 and showed no signs of senility. While the decedent was undressing, the nurse did none of her other duties in the office. She remained only two feet away from the patient and did not leave her unattended. The decedent was a feeble but strong-willed individual who wanted her own way. She refused to get undressed until the nurse left the room. On that day she was mentally keen and did not appear unusually unstable. According to the standard of care and skill for the care of the feeble and infirm in doctors' offices in the community having a nurse in attendance, such patients should not be left unattended. According to the standards of care and skill in the area, if a doctor believes a patient to be in need of assistance, the nurse is instructed to help the patient dress or undress. The defendant did not consider that there was any probability that if Mrs. Levett was left to undress herself she would fall; there was only a possibility of it.

The defendant also claimed to have proved the following: He attempted to run his office in accordance with the standard of care and skill of doctors who have a nurse in attendance in their offices. The defendant heard the decedent tell his nurse not to stay with her and that she could not undress her. On previous visits to the office the decedent had refused to let anybody dress or undress her, and she was allowed to dress herself. On March 26, 1962, the decedent described her complaints to the defendant but did not complain of dizziness or instability. On that day the defendant observed her walking unassisted to his consultation room, and, while she used a cane, she could walk eight to ten feet without using the cane. Most female patients do not want to have help in disrobing, and it is not unusual to have them refuse such assistance. As the defendant observed the patient's condition on that day, he did not believe there was much risk in allowing the decedent to undress herself unassisted. For that reason he did not believe that he should have insisted that she receive help. The defendant never noticed any tendency to instability when the decedent had her eyes open. The defendant did not think that his judgment was wrong in permitting the decedent to disrobe unassisted, in view of the fact that she had already completely disrobed on the day in question when she fell. When the nurse returned to the decedent, there were no articles of clothing on her in any unusual position, that is, not completely on or partially off. On the day of the fall, the decedent did not tell either the defendant or his nurse what caused her to fall.

The basic claim of the plaintiff is that the standard of care to be applied in this case is not the standard applied in malpractice cases with respect to diagnosis and treatment of a patient but that of a reasonably prudent person under the circumstances. In determining the appropriate standard of care it is essential that we examine the relationship of the parties. The plaintiff alleged in her complaint and offered proof that the decedent was in the defendant's office as a patient of the defendant. This was admitted by the defendant in his answer and was included in his claims of proof. There can be no doubt therefore that the relationship of physician and patient existed. The defendant had been the decedent's family physician since 1944. The determination whether the decedent needed help in disrobing and, in the event she should...