Wasfi v. Chaddha, 13882

• Court: Supreme Court of Connecticut
• Writing for the Court: Before PETERS; SHEA
• Citation: 218 Conn. 200,588 A.2d 204
• Parties: Carrie WASFI et al. v. Shashi CHADDHA et al.
• Docket Number: No. 13882,13882
• Decision Date: 26 March 1991

Page 204

588 A.2d 204

218 Conn. 200

Carrie WASFI et al. v. Shashi CHADDHA et al.

No. 13882.

Supreme Court of Connecticut.

Argued Jan. 11, 1991.

Decided March 26, 1991.

William F. Gallagher, New Haven, with whom, on the brief, were William R. Davis, Bloomfield, Nicola E. Rubinow, Hartford, and Cynthia C. Bott, New Haven, for appellants (plaintiffs).

Ronald D. Williams, with whom was Ronald D. Williams, Jr., Bridgeport, for appellee (named defendant).

Augustus R. Southworth III, with whom, on the brief, was Nancy P. Maxwell, Waterbury, for appellee (defendant Frank J. Riccio).

Before PETERS, C.J., and SHEA, CALLAHAN, COVELLO and BORDEN, JJ.

SHEA, Associate Justice.

The named plaintiff, Carrie Wasfi, ¹ sued the defendants for medical malpractice in the diagnosis and treatment of an acoustic neuroma. ² Specifically, she claimed that the defendant Shashi Chaddha, a radiologist, had negligently failed to detect the presence of an acoustic neuroma when he performed a CAT scan ³ on her in May, 1981, and that the defendant Frank J. Riccio, an otolaryngologist, ⁴ had negligently failed to diagnose and treat the acoustic neuroma in October, 1982, after she reported a sudden hearing loss. ⁵ The neuroma, and its subsequent surgical removal in 1983, caused total hearing loss in Wasfi's right ear, facial paralysis, hemiparesis ⁶ of the left side, and voice loss. After a twenty-day trial, the jury returned verdicts in favor of the defendants. Wasfi appealed, claiming numerous errors in the trial court's instructions to the jury. We affirm the judgment.

The jury could reasonably have found the following facts. Since childhood, Wasfi had suffered from diabetes. At various times between 1977 and 1981, she had experienced visual and other problems linked to diabetes and had undergone hospital treatment.

In 1981, Wasfi sought treatment for recurring headaches from her family physician, Joseph Sciarrillo. Sciarrillo ordered X rays, a CAT scan and an electroencephalogram (EEG). Chaddha was the radiologist who performed the CAT scan. Chaddha later testified that he had not been informed of Wasfi's symptoms prior to evaluating the CAT scan results. In any event, Chaddha reported to Sciarrillo that the CAT scan result was normal. Sciarrillo prescribed headache medication for Wasfi, which had some positive effects.

In October, 1982, Wasfi noticed sudden loss of hearing in one ear when she attempted to use the telephone. She went to Joseph Riccio, an otolaryngologist, told him of the hearing loss, and also reported headaches, a recent cold and "lightheadedness." Riccio conducted some office tests and told Wasfi that the hearing loss might be viral (related to her cold) or vascular (related to her diabetes). He recommended "carbogen therapy," a treatment involving inhalation of a mixture of carbon dioxide and oxygen intended to open a blocked ear vessel. Riccio arranged for other practitioners to perform the therapy and advised Wasfi to contact him after the therapy was complete. Had Wasfi reported continued hearing loss following such treatment, he would at that time have recommended a CAT scan.

Wasfi discussed the suggested carbogen therapy with her husband. After the discussion, she decided not to undergo the carbogen therapy. Wasfi did not inform Riccio of her decision and did not contact him again, although her hearing did not improve. Six months after her visit to Riccio, she began to experience severe headaches. After a month of the headaches, in May, 1983, she returned to her family physician, Sciarrillo. When a second CAT scan revealed the presence of a tumor, Sciarrillo immediately had her admitted to a hospital, where the neuroma was removed.

At the trial, experts on both sides testified concerning, inter alia, the propriety of Riccio's prescription of carbogen therapy prior to ordering a CAT scan. The thrust of Riccio's evidence was that when a patient suffers a hearing loss that may be caused by dozens of nonthreatening conditions, doctors routinely attempt to screen out such conditions before ordering a CAT scan, which would be used to detect a more serious cause for the hearing loss; that if carbogen therapy is successful in restoring hearing, it would also rule out more serious causes for the hearing loss; and that Riccio's decision to recommend carbogen therapy before ordering a CAT scan was only an application of this standard practice. In addition, Riccio's counsel elicited expert testimony to the effect that the timing of the CAT scan--before carbogen therapy or after carbogen therapy--was a matter of professional opinion as to which physicians differed. Finally, both defendants offered evidence that by the time Wasfi came to Riccio for treatment, no CAT scan would have made a difference, for the damage had already been done.

The trial court included in its charge to the jury specific instructions on (1) "intervening cause" and (2) "schools of thought" as they affect the standard of care. After the charge was given, court adjourned for the weekend.

When court resumed, the parties presented their exceptions to the charge. Wasfi excepted to the "schools of thought" charge as unwarranted by the evidence, and all parties excepted to the instruction on intervening cause. Persuaded by some of the exceptions, the trial court gave a revised instruction on the subject of proximate cause in an attempt to eliminate the problems with the earlier charge on intervening cause. It did not revise or delete the instruction on "schools of thought." It explained the verdict forms, which provided for a general verdict as to each defendant but no special interrogatories were submitted. The jury began deliberating that day.

The next day the jury requested clarification of the intervening cause instruction. In response, the court told the jury to disregard the second instruction and issued a third and final instruction on intervening cause. Introducing the third charge, the judge said "I'm going to go back in part to my original charge." Wasfi's and Riccio's counsel both took exception to that statement as well as to other parts of the charge. After deliberating another day, the jury returned general verdicts in favor of Riccio and Chaddha. On appeal, Wasfi challenges the trial court's charges on (1) "schools of thought" and (2) intervening cause.

I

Wasfi contends that the trial court improperly gave an instruction on "schools of thought" when there was no evidence that Riccio had adhered to and acted according to the dictates of a particular school of medical thought distinct from that followed by her own expert witnesses.

The trial court included the disputed instruction in its first charge to the jury, and did not revise it in giving the subsequent curative instructions. The disputed instruction followed a lengthy general instruction on medical malpractice, including the applicable standard of care. ⁷ After this instruction, the trial court discussed the claims against each doctor. As to Wasfi's claims against Riccio, the trial court stated:

"Now as to Dr. Riccio who undertook treatment of Mrs. Wasfi in his capacity as otolaryngologist, it is his alleged failure to properly diagnose and order proper follow-up studies when he saw Mrs. Wasfi in his office on October 29th, 1982, which is the gravamen of their claim against him. In essence, however, this claim is substantially the same as that presented against Dr. Chaddha. That is the failure to timely and skillfully diagnose her ailment. Consequently the same principles of law that apply to Dr. Chaddha relating to a physician's duty to properly diagnose a patient's ailment apply with equal force to Dr. Riccio."

The court then gave the challenged instruction.

"There is, however, one specification of negligence that is peculiar to Dr. Riccio. That specification appears in paragraph 8e of the third count of the complaint and is in essence a claim that Dr. Riccio prescribed a course of treatment that was unsuited for Mrs. Wasfi's condition.

"There has been testimony in this case that Dr. Riccio elected a certain course of treatment for Carrie Wasfi's condition as he understood it in 1982, to wit: carbogen therapy. There has also been testimony that another course of treatment should have been undertaken and that is ordering a CAT scan. Now there may be more than one established system of diagnosis and treatment. While the law recognizes that there are different schools of thought in this regard, it does not favor or give exclusive recognition to any particular system of diagnosis and treatment over another.

"The law is that a physician is not bound to use any particular method or medical school of thought in diagnosing his patient. When a physician of ordinary skill and learning recognizes several methods of diagnosis as proper, the defendant may adopt any such methods without subjecting himself to liability [for] an unfortunate result so long as such method of diagnosis is consistent with the skill, care and diligence ordinarily had and exercised by other specialists in his field in like cases at that time he undertook that function. Thus, if you were--if there were several established methods of diagnosis recognized at the time Dr. Riccio saw Mrs. Wasfi in his office on October, 1982, the test is not whether Dr. Riccio adopted a method another doctor might not adopt, but whether the method he did adopt was one that was in compliance with the standard of care, skill and diligence required of the particular school of thought embracing that method.

"Therefore, you must decide whether or not the carbogen therapy prescribed by Dr. Riccio for Wasfi was an established diagnostic modality under any recognized school of thought or in cases such as Mrs. Wasfi presented to him in October of 1982. If you find by a fair preponderance of the evidence that carbogen therapy was not consistent with any established diagnostic modality for cases such as Mrs. Wasfi's, then...