Tomer v. American Home Products Corp.

• Decision Date: 27 April 1976
• Court: Connecticut Supreme Court
• Parties: Eleanor L. TOMER, Administratrix (ESTATE of Edward TOMER) v. AMERICAN HOME PRODUCTS CORPORATION et al.

Page 35

368 A.2d 35

170 Conn. 681

Eleanor L. TOMER, Administratrix (ESTATE of Edward TOMER) v. AMERICAN HOME PRODUCTS CORPORATION et al.

Supreme Court of Connecticut.

April 27, 1976.

Alexander Winnick and David W. Skolnick, New Haven, for appellant (plaintiff).

Gregory C. Willis, Bridgeport, for appellee (named defendant).

John J. Cotter, Bridgeport, for appellee (defendant Anthony Apuzzo).

Robert W. Weeks, Jr., Bridgeport, with whom, on the brief, was James F. Kenney, Bridgeport, for appellee (defendant Francis X. Foley).

Richard F. Oburchay, Bridgeport, with whom, on the brief, was George L. Holmes, Jr., Bridgeport, for appellee (defendant Anthony F. DeLibero).

Before HOUSE, C.J., and LOISELLE, BOGDANSKI, LONGO and BARBER, JJ.

BOGDANSKI, Associate Justice.

The plaintiff administratrix brought this action against the defendants, American Home Products Corporation, Dr. Anthony Apuzzo, Dr. Francis X. Foley, and Dr. Anthony F. DeLibero, for the wrongful death of the decedent, Edward Tomer. In separate counts, she alleged that the decedent's death was caused by the negligence and the breach of warranties of American Home Products in the manufacture and distribution of an anesthetic agent known as Halothane, and by the negligence of the three doctors in their use of Halothane. In addition, the plaintiff alleged that American Home Products was liable on the basis of strict liability in tort.

The central issue in the case concerned American Home Products' alleged failure to warn the medical profession of dangerous propensities of Halothane. Concluding that the elements of proof were the same with respect to all theories of recovery against American Home Products, and that the defect necessary for the imposition of strict tort liability was the same as in implied warranty, the court submitted verdict forms to the jury as to American Home Products on the strict liability count only. The jury returned a verdict for all defendants, and from the judgment rendered the plaintiff has appealed, assigning error in the denial of her motion to set the verdict aside, in the charge to the jury, and in several rulings on evidence.

The plaintiff offered evidence to prove and claimed to have proved the following facts: On April 15, 1967, the plaintiff's decedent was admitted to St. Vincent's Hospital, Bridgeport, with a fracture of the right ankle. Other than that injury, he was in good health. Upon admission his temperature was found to be ninety-nine degrees, which is normal. Surgery was performed on the ankle that same day by Dr. Apuzzo, an orthopedic surgeon. The anesthesia used was Halothane, administered by Dr. DeLibero. On April 16, 1967, the day following surgery, the decedent's temperature had risen to 100 degrees, and by April 17, it had risent to 100.2 degrees. On April 26, 1967, a second operative procedure was performed on the decedent's ankle by Dr. Apuzzo and Dr. Foley. Dr. DeLibero administered the anesthesia, which was again Halothane. That evening, the decedent's temperature rose to 103 degrees, and on April 28 it reached 104.6 degrees. On May 3, 1967, he was comatose and deeply jaundiced. He died the next day. Laboratory tests indicated that the decedent had a hypersensitive reaction to Halothane, and there was testimony that the decedent died from liver damage resulting from the second administration of Halothane.

Prior to and at the time of the decedent's death, American Home Products manufactured and distributed Halothane and knew of its possible hazardous effects. Between 1958 and 1967, it had received numerous letters regarding Halothane's connection with hepatitis and liver necrosis, and as many as twenty-five publications dealing with that subject were in circulation. In 1963, American Home received reports of death following a second administration of Halothane. A national Halothane study was conducted, which reported evidence of massive hepatic necrosis to be considerably higher in patients who had undergone multiple procedures involving Halothane than by those who had undergone only one procedure. In 1963 and 1965, American Home issued 'dear doctor' letters to the effect that there were reports of massive necrosis in patients who underwent surgical procedures under anesthetic techniques involving the use of Halothane. No 'dear doctor' letters were ever sent by American Home using the words 'Warning to Doctors.' Prior to April, 1967, American Home did not issue any warnings to the medical profession concerning a second or third use of Halothane on the same patient.

With respect to the defendant doctors, the plaintiff offered evidence to prove that Dr. DeLibero did not examine the decedent after the first operation until just prior to the second one; that he was familiar with the term Halothane hepatitis and had read about it on numerous occasions; that successive administrations of Halothane under certain circumstances were contraindicated; and that it is the duty of an anesthesiologist to employ techniques providing the greatest degree of safety. There was a view held in the profession that an increased temperature following surgery could be a significant indication of a reaction to the anesthesia administered. Dr. Apuzzo did not know the anesthetic agents that were used during either operation, and he did not discuss the decedent's rise in temperature with Dr. DeLibero prior to the second operation. There was testimony that the standard of care in the community required that any treatment followed by ill effects should not ordinarily be repeated.

The defendant American Home Products offered evidence to prove and claimed to have proved the following facts: In 1967, Halothane was the safest and most widely used anesthetic agent in the country. In the history of medicine, it is doubtful whether any drug had been more extensively studied before and after its introduction than was Halothane. Between 1958 and 1967, American Home sent out more than twenty 'dear doctor' letters concerning the findings of those studies. There are always risks inherent in the use of anesthetic agents, and there are greater risks involved in a second operation than in a first. There was no evidence that Halothane caused more liver damage than any other anesthetic, and the cause and effect relationship between the administration of Halothane and the postoperative onset of liver failure could not be established.

Dr. DeLibero offered evidence to prove that a slight rise in temperature did not suggest that a second use of Halothane was contraindicated and that, under the circumstances, Halothane appeared to be the best anesthetic to administer. Doctors Apuzzo and Foley offered evidence to prove that they had not received any 'dear doctor' letters with respect to Halothane; that they were not experts in anesthesiology; and that the entire function of putting a patient to sleep is left up to the anesthesiologist, with no control in that area exercised by the orthopedic surgeon.

On those claims, the jury were required to determine whether American Home Products had given timely and adequate warnings of potentially harmful effects which it knew or should have known might accompany the use of Halothane, and whether the doctors were negligent in their use of Halothane. With respect to all the defendants, the jury had to determine whether the use of Halothane did in fact cause the decedent's death.

We first consider the plaintiff's claim that the court erred in its continual ruling that all testimony of medical experts relating to the cause of the decedent's death, and the effects of Halothane generally, had to...