Monti v. Wenkert

• Decision Date: 27 May 2008
• Docket Number: No. 18028.,No. SC 18029.,18028.,SC 18029.
• Citation: 287 Conn. 101,947 A.2d 261
• Court: Connecticut Supreme Court
• Parties: Audrey MONTI et al. v. Naomi E. WENKERT et al.

947 A.2d 261

287 Conn. 101

Audrey MONTI et al. v. Naomi E. WENKERT et al.

No. 18028.

No. SC 18029.

Supreme Court of Connecticut.

Argued February 14, 2008.

Decided May 27, 2008.

Frank H. Santoro, Hartford, for the appellants (defendant Mark J. Decker et al.).

Carey B. Reilly, Bridgeport, with whom were Cynthia C. Bott, Milford, and, on the brief, Christopher D. Bernard, Bridgeport, for the appellees (plaintiffs).

ROGERS, C.J., and NORCOTT, KATZ, ZARELLA and SCHALLER, Js.

KATZ, J.

The defendant Mark J. Decker, individually and doing business as Ellington Family Practice, appeals from the judgment of the trial court, rendered after a jury trial, against him for damages and prejudgment interest in favor of the plaintiffs, Audrey Monti and Robert Monti, coadministrators of the estate of their seventeen year old daughter, the decedent, Lisa Monti (Lisa), for negligent treatment of Lisa's respiratory illness. In his consolidated appeals to this court,¹ the defendant contends that the trial court improperly denied his motion to set aside the verdict on the grounds that: (1) the jury had returned an impermissible compromise verdict; (2) the trial court improperly had sent the jury back to reconsider only the issue of noneconomic damages; (3) the nondisclosure of a settlement agreement reached during trial between the plaintiffs and the named defendant, Naomi E. Wenkert, and her medical practice group, the Institute of Living Medical Group, P.C., prejudiced the defendant and tainted the verdict; and (4) the plaintiffs failed to engage in a pre-complaint inquiry to determine whether there was a good faith basis to bring a malpractice action, as required by General Statutes (Rev. to 1999) § 52-190a (a). The defendant also contends that the trial court improperly awarded prejudgment interest to the plaintiffs. We are not persuaded by the defendant's contentions, and, accordingly, we affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On or about November 8, 1996, Lisa went to the defendant's office complaining of an earache. A physician's assistant attended to her and prescribed an antibiotic. On November 14, Lisa returned to the office complaining of a headache, loss of appetite, ear pain, chills and body aches. She was told to rest, drink fluids and continue on the medication. On November 15, Lisa went to the emergency room at Rockville General Hospital (hospital) complaining of a rash, fever, earache headache and loss of appetite. The hospital staff told the plaintiffs that they believed that Lisa had suffered an adverse reaction to the antibiotic she had taken, and she was prescribed a different medication and went home. Lisa returned to the hospital on November 16 because her symptoms had worsened to include throat tightness, difficulty swallowing, and an increased respiratory rate. At that time, she was admitted to the hospital's intensive care unit. The defendant was Lisa's attending physician from the day after she was admitted to the hospital, November 17, 1996, until he discharged her from the hospital on November 20. During her time in the intensive care unit, Lisa had trouble sleeping and appeared restless and anxious. On the basis of statements made by physicians and nurses in the hospital, Audrey Monti was led to believe that some of Lisa's symptoms were not physiological, but, rather, were Lisa's psychological reaction to her fear of what was happening to her in the hospital. In one such statement, a nurse told Audrey Monti that Lisa was not trying to get better. When the defendant discharged Lisa, he indicated to the plaintiffs that there was nothing medically wrong with her.

Believing that Lisa was having a psychological reaction, on November 21, 1996, the day after Lisa's discharge from the hospital, Audrey Monti took her to see her regular psychiatrist, Wenkert, at the Institute of Living (institute). When Lisa arrived at Wenkert's office building, she collapsed just outside the door in "severe respiratory distress," but recovered shortly afterwards and began to breathe more normally. At that time, Lisa exhibited blueish, purple lips — a condition later determined to be cyanosis or an indication that an individual is not moving oxygen into their blood. Wenkert diagnosed Lisa as having a panic attack, conducted the scheduled counseling session with her, and prescribed Ativan, a sedative used to treat anxiety. Lisa died later that evening at approximately 9:30 p.m. An autopsy determined that Lisa's death was the result of acute respiratory distress syndrome, which was caused by a viral infection that neither the defendant nor Wenkert had diagnosed. Additional facts will be set forth as necessary.

The record also reveals the following relevant procedural history. On or about October 20, 1998, the plaintiffs filed a two count complaint against Wenkert, the Institute of Living Medical Group, P.C., and the institute, accompanied by a certificate of good faith. Wenkert in turn filed an apportionment complaint, pursuant to General Statutes §§ 52-102b and 52-572h, against the hospital and the defendant, alleging that their negligence in failing to diagnose Lisa's condition had been the cause of her death. Wenkert's complaint did not include a certificate of good faith. On or about, May 18, 1999, the plaintiffs filed their own complaint against the defendant, alleging that he was negligent in his treatment of Lisa. This complaint also did not include a certificate of good faith.

Thereafter, the defendant filed a motion to strike the plaintiffs' complaint on the ground that they had failed to file a certificate of good faith evidencing the statutorily required precomplaint inquiry, which the trial court, Teller, J., denied. Subsequently, the defendant filed a motion for summary judgment on the same ground. While that motion was pending, the plaintiffs made a motion to file an amended complaint against the defendant that did include a certificate of good faith, which the trial court, Aurigemma, J., granted over the defendant's objection. On January 6, 2003, after a hearing, the trial court, Peck, J., denied the defendant's motion for summary judgment on the ground that the plaintiffs' amended complaint included a certificate of good faith.

Prior to trial, the plaintiffs withdrew their claims against the institute and the hospital, leaving only claims against Wenkert and the defendant. See footnote 1 of this opinion. Trial began on February 9, 2005. On or about March 18, 2005, after the plaintiffs had rested their case, Wenkert and the plaintiffs entered into a settlement agreement, wherein Wenkert remained in the case, but the plaintiffs were guaranteed certain minimum and maximum damages awards, depending on the jury's verdict. The agreement was not disclosed to the defendant.

At the close of evidence, the trial court instructed the jury as to liability and both economic and noneconomic damages, and sent it to deliberate. During its deliberations, the jury sent three notes to the court regarding its lack of unanimity as to one of the defendants, and the court instructed them each time to continue deliberations. The jury thereafter returned its initial verdict, finding in favor of Wenkert but against the defendant and awarding only economic damages. The trial court stated to the parties that, although the jury reasonably had found that the defendant had breached the standard of care and awarded economic damages, it unreasonably had failed to award noneconomic damages in light of the evidence, and the court intended to send the jury back to reconsider the issue of noneconomic damages. The defendant objected to the trial court's decision to charge the jury to reconsider only the issue of noneconomic damages. Additionally, the defendant moved for a mistrial claiming that the jury had reached an impermissible compromise verdict. The court denied the motion and, over the defendant's objection, instructed the jury to reconsider its award of zero noneconomic damages. The jury returned its final verdict, awarding the plaintiffs $750,000 in economic damages and $1 million in noneconomic damages against the defendant.

Thereafter, the defendant filed a motion to set aside the verdict against him on essentially four grounds each of which the court rejected. The court first concluded that the failure of the plaintiffs to include a certificate of good faith in their original complaint against the defendant was not a basis upon which to set aside the verdict because: (1) the circumstances did not evidence the lack of a good faith precomplaint inquiry; (2) the defendant had not requested that the court conduct a factual inquiry into the basis for good faith; and (3) in any event, there was no evidence that there was a lack of good faith and setting aside the verdict would not be an appropriate sanction for the lack of a good faith certificate. Second, the court concluded that, given the facts of the case, it properly had sent the jury back to reconsider the issue of noneconomic damages with appropriate instructions as to that issue. The court explained that "[t]here was substantial and uncontroverted evidence of antemortem pain and mental suffering and loss of enjoyment of life. Given these circumstances the court narrowed its instructions to reconsideration of noneconomic damages."

Third, with respect to the defendant's claim that the circumstances surrounding the jury's deliberations indicated that its first verdict reflected an impermissible compromise verdict, the trial court reasoned that a compromise verdict was not the only reasonable explanation under the circumstances for the jury's decision awarding no noneconomic damages. More specifically, the court reasoned that: its original instructions to consider noneconomic damages were permissive, not mandatory; the jury's last note had indicated that it may have been struggling with the amorphous nature of...