1 CONNECTICUT MEDICAL MALPRACTICE Jennifer S.R. Lynn* TABLE OF CONTENTS INTRODUCTION... N EGLIGENCE... A..Expert Testimony Requirement... B. Existence and Duration of the Duty of Care C. Standard of Care and Deviation from the Standard of Care Professional Standards Determinants of the Standard of Care.. 3. Geographic Location Line of Practice: Schools & Specialties. D. Standard of Care in Connecticut Connecticut General Statutes Section c Connecticut Case Law E. Causation F. Res Ipsa Loquitur G. D am ages Connecticut Statutes Connecticut Cases IH. Increased Risk and Lost Chance Increased Risk in Connecticut.. : Lost Chance in Connecticut * B.A. with honors, Brown University, 1984; J.D. with high honors, University of Connecticut School of Law, 1990; Member Connecticut, District of Columbia, and Massachusetts Bars. Currently Student, University of Connecticut School of Medicine.
2 BRIDGEPORT LAW REVIEW [Vol. 12:381 III. DEFENSES To NEGLIGENCE A. Defenses Relying on Clinical Judgment B. Good Samaritan Statutes C. Government Immunity and Charitable.Imm u nity D. Contributory Negligence or Comparative F a u lt E. Procedural Issues Information Protected by Confidentiality S tatutes Certificates of Merit Discovery Sanctions F. Statutes of Limitation and Repose Connecticut: What Statute Governs? Connecticut: The Discovery Rule Connecticut: The Repose Provision Connecticut: Tolling Rules IV. 'INFORMED CONSENT A. D uty of Care B: Standard of Care C. Causation D. Statute of Limitation E. Procedures Exceeding the Scope of Consent 447 V. VICARIOUS LIABILITY A. Respondeat Superior B. The Liability of Physicians for Hospital Emp loy ees C. The Liability of Hospitals for Physicians D. Corporate Negligence E. Medical Malpractice in the Workplace VI. OTHER BASES OF LIABILITY A. Product Liability B. Statutory Violations C. Intentional and Miscellaneous Torts Assault and Battery False Imprisonment Defamation, Disclosure of Confidential Information, and Invasion of Privacy D. Contract VII. SUMMARY
3 1992] MEDICAL MALPRACTICE I. INTRODUCTION Medical malpractice has been broadly defined to include "all liability-producing conduct arising from the rendition of professional medical services."' Such conduct can be carried out by a variety of health care practitioners (physicians, dentists, osteopaths, nurses, medical technicians, chiropractors, podiatrists, optometrists, pharmacists, psychologists) working in a variety of settings (private offices, hospitals, workplaces, nursing homes, prisons). This article is limited to a survey of the liability-producing conduct of physicians and the liabilities of hospitals, with an emphasis on medical negligence. While the law of various United States jurisdictions is discussed, the focus of this article is on medical malpractice in Connecticut. Medical malpractice cases generally fit into one of the following categories: negligence, lack of informed consent, intentional tort, and contract. It is helpful to keep these bases of liability in mind because the essential elements of the plaintiff's case and the defenses available to the physician or hospital (including statutes of limitations) vary with the basis of the claim. Also, for contract actions, the rules of damages may differ from those applicable in tort. Again, the bulk of this survey is concerned with the various forms of medical negligence, including lack of informed consent, vicarious liability, and corporate negligence. II. NEGLIGENCE When the plaintiff's medical malpractice claim sounds in negligence, the elements of the plaintiff's case are the same as those in ordinary negligence actions. In general, the burden is on the plaintiff to show: (1) that the defendant owed the plaintiff a duty of care (including what that duty of care was); (2) that the defendant breached the duty of care; (3) that the plaintiff suffered a compensable injury; and (4) that the plaintiffs injury was caused by the defendant's tortious conduct.' In Connecticut malpractice jurisprudence, as elsewhere, the shorthand formulation of these elements is: standard of care, deviation from the 1. J. KING, THE LAW OF MEDICAL MALPRACTICE 3 (1986). 2. W. KEETON, D. DOBBS, R. KEETON & D. OWEN. PROSSER AND KEETON ON TORTS 30 (5th ed. 1984) [hereinafter PROSSER & KEETON].
4 BRIDGEPORT LAW REVIEW [Vol. 12:381 standard of care, injury, and causation. 3 A. Expert Testimony Requirement.In general, the plaintiff in a medical malpractice case must present expert testimony to establish the applicable standard of care and the deviation from that standard of care; in the usual case, expert testimony is also required to prove causation and to prove the extent of the plaintiff's injury. 4 As will be explained, the standard of care may be defined by professional and geographic factors, the result being that a more rigorous inquiry may be involved in determining the competency of an expert for standard of care purposes than for causation and damages purposes.' The requirement for expert testimony in a medical malpractice action is the same in Connecticut. "ITlhe plaintiff must present medical expert testimony to establish that the defendants' treatment and care fell short of the required standard of care and that the breach proximately caused the plaintiff's injury." 6 It is not necessary for the expert witness to specifically label a defendant's conduct as "malpractice" in order for the factfinder to reach the conclusion that the defendant was negligent, as long as the expert witness testifies to the standard of care and to its breach. Note that the defendant's own "expert" statements (pleadings, depositions, trial testimony), if sufficiently probative, may establish elements of the plaintiff's case, including the stan- 3. See, e.g., Samose v. Hammer-Passero Norwalk Chiropractic Group, P.C., 24 Conn. App. 99, , 586 A.2d 614, 616, appeal denied, 218 Conn. 903, 588 A.2d 1079 (1991); see also MEDICAL & HOSPITAL NEGLIGENCE 10:12-10:15,.36:02 (Zaremski & Goldstein, eds. 1988) [hereinafter Zaremskil. 4. KING, supra note 1, at 76-77, 200; Annotation, Physicians, Surgeons, and Other Healers, 61 AM. JUR. 2D 348 (1981) [hereinafter AM. JuR.]; Zaremski, supra note 3, at 25: KING, supra note 1, at 77. For a Connecticut case, see Campbell v. Pommier, 5 Conn. App. 29, 37, 496 A.2d 975, 981 (1985), affd after remand, 17 Conn. App. 835, 556 A.2d 189 (1989). In Campbell, the trial court refused to qualify a licensed clinical psychologist to testify as to his diagnosis of plaintiff's acute mental illness. Id. at 37, 496 A.2d at 981. The appellate court reversed, saying that the difference in qualifications between a psychiatrist and a psychologist would go to the weight rather than to the admissibility of the testimony. 17 Conn. App. 3 at 835, 556 A.2d at Vinchiarello v. Kathuria, 18 Conn. App. 377, 381, 558 A.2d 262, 264 (1989) (quoting Campbell v. Pommier, 5 Conn. App. 29, 32, 496 A.2d 975, 978 (1985)). See also Shenefield v. Greenwich Hosp. Ass'n, 10 Conn. App. 239, 248, 522 A.2d 829, 834 (1987). 7. Campbell v. Palmer, 20 Conn. App. 544, 548, 568 A.2d 1064, 1067 (1990).
5 19921 MEDICAL MALPRACTICE dard of care. 8 An obvious yet important caveat to the requirement for expert testimony, as Connecticut courts have noted, is that claims against a physician or hospital which sound in ordinary negligence, rather than in malpractice, will be subject only to proof of the standard of care required of a reasonably prudent person under the circumstances; that is, there will be no requirement for expert testimony.' The Common Knowledge Doctrine In Connecticut, as elsewhere, the rationale for the rule requiring expert testimony is that in most malpractice cases, "a layman does not... have the requisite knowledge as to whether the proper treatment was given, procedure followed, or care used."' 0 However, when the alleged negligence involves nontechnical matters, the finders of fact will be allowed to rely on their common knowledge in arriving at the appropriate standard of care and evaluating the deviation. In some jurisdictions, this exception to the requirement of expert testimony is known as the "common knowledge" doctrine." The common knowledge 8. KiNG, supra note 1, at 86-89; Am. JUR., supra note 4, at 349; Zaremski, supra note 3, at 24:12, 36:08, 36:15. For Connecticut cases, see Sampiere v. Zaretsky, 1990 Conn. Super. LEXIS 622 (1990) (defendant's admission of excessive dosage of medication can lead jury to find defendant acted with gross want of care or skill); Pedersen v. Vahidy, 209 Conn. 510, , 552 A.2d 419, (1989) (discussion of judicial admissions in context of informed consent case); Parillo v. Internal Medicine, 4 C.S.C.R. 558, 559 (1989) ("defendant doctor in a medical malpractice action can be the expert witness, if his testimony establishes the standard of care and breach thereof"); Krattenstein v. Thomas, 7 Conn. App. 604, 611, 509 A.2d 1077, 1081 ("defendant's own expert testimony could provide the jury with a basis upon which to find the appropriate standard of care"), cert. denied, 201 Conn. 807, 515 A.2d 378 (1986); Levett v. Etkind, 158 Conn. 567, , 265 A.2d 70, 73 (1969) (expert testimony on standard of care was provided by defendant himself); Console v. Nickou, 156 Conn. 268, 274, 240 A.2d 895, 898 (1968) (same); Snyder v. Pantaleo, 143 Conn. 290, 294, 122 A.2d 21, 24 (1956) (defendant's own expert testimony supplied plaintiff's proof of defendant's breach of the standard of care). See also Rodeno v. Petrie, 4 C.S.C.R. 572, 573 (1989) (deposition of codefendant's expert witness might be admitted at trial and could provide plaintiff with expert testimony). 9. See, e.g., Sivak v. Bridgeport Hosp., 1991 WL (Conn. Super. 1991); Borrelli v. Mount Sinai Hosp., 4 C.S.C.R. 148 (1988); Badrigian v. Elmcrest Psychiatric Inst., 6 Conn. App. 383, 505 A.2d 741 (1986). But see Levett, 158 Conn. at 567, 265 A.2d at Shelnitz v. Greenberg, 200 Conn. 58, 66, 509 A.2d 1023, 1027 (1986); McDermott v. St. Mary's Hosp., 144 Conn. 417, 423, 133 A.2d 608, 611 (1957); Chubb v. Holmes, 111 Conn. 482, 486, 150 A. 516, 518 (1930). 11. KING, supra note 1, at 84; AM. JUR., supra note 4, at 350; Zaremski, supra
6 BRIDGEPORT LAW REVIEW [Vol. 12:381 doctrine bears a similarity to (and often operates with) the doctrine of res ipsa loquitur, which itself provides an exception to the requirement* of expert testimony. Many Connecticut cases support the proposition that, to prevail, a plaintiff must present expert testimony to establish the defendant's negligence "except where there is manifest such gross want of care or skill as to afford, of itself, an almost conclusive inference of negligence."'" This "gross negligence" doctrine may be viewed as a variation on the common knowledge doctrine or as a relative of res ipsa loquitur. However it is viewed, in practice this doctrine has had little application in Connecticut malpractice cases. Nor, as will be discussed below, do the Connecticut courts look with favor on the application of res ipsa. loquitur to malpractice cases. B. Existence and Duration of the Duty of Care As a general rule, the existence of a provider-patient relationship must be proved in order for a plaintiff to recover on a medical malpractice claim. This is because the duty of care' is premised on the existence of a physician-patient or hospital-patient relationship.' 8 In the usual case, expert testimony will not be required on this issue. 14 Briefly, an agreement or an undertaking to render medical care is enough to establish a relationnote 3, at 24:10, 36: Vinchiarello v. Kathuria, 18 Conn. App. 377, , 558 A.2d 262, 264 (1989); Guzze v. New Britain Gen. Hosp., 16 Conn. App. 480, 486, 547 A.2d 944, 947, cert. denied, 209 Conn. 823, 552 A.2d 430 (1988); Perez v. Mount Sinai Hosp., 7 Conn. App. 514, , 509 A.2d 552, 556 (1986); Puro v. Henry, 188 Conn. 301, , 449 A.2d 176, 178 (1982); Levett, 158 Conn. at 574, 265 A.2d at 73; Console, 156 Conn. at , 240 A.2d at 898. See also Chipello v. Naiman, 4 CONN. L. RPTR. 240 (1991); Campbell v. Palmer, 20 Conn. App. 544, 548, 568 A.2d 1064, 1067 (1990); Borrelli v. Mount Sinai Hosp., 4 C.S.C.R. 148, 149 (1988); Plourde v. Embriano, 2 C.S.C.R. 795 (1987); Gada v. Marx, 2 C.S.C.R. 408 (1987); Krause v. Bridgeport Hosp., 169 Conn. 1, 12, 362 A.2d 802, 808 (1975) (Bogdanski, J., dissenting); McDermott, 144 Conn. at 423, 133 A.2d at ; Snyder v. Pantaleo, 143 Conn. 290, 292, 122 A.2d 21, 23 (1956); Ardoline v. Keegan, 140 Conn. 552, 557, 102 A.2d 352, 355 (1954); Frogge v. Shugrue, 126 Conn. 608, 613, 13 A.2d 503, 505 (1940); Chubb, 111 Conn. at 486, 150 A. at See KING, supra note 1, at 9-39; Zaremski, supra note 3, at 6:03-6:04, 36: Zaremski, supra note 3, at 6:04, 25:10. See also Clanton v. Von Haam, 177 Ga. App. 694, 340 S.E.2d 627 (1986) (test for existence of physician-patient relationship involves application of non-expert concepts of a contractual nature; question of establishment of relationship was therefore within comprehension of laymen, physician's conclusory statements as to existence of relationship not admissible as expert testimony).
7 19921 MEDICAL MALPRACTICE ship and a duty of care,' 6 and the duty continues until either the patient discharges the provider or the provider terminates the relationship by giving reasonable advance notice or by arranging for substitute care.' 6 Thus, in several Connecticut cases, the establishment of the relationship or the duration of the relationship has been at issue and a "no duty" rule has operated to defeat the plaintiff's claim. 1 7 In most cases where the existence of a provider-patient relationship is in dispute, the creation of the relationship is analyzed according to the principles of implied or express contract, the presumption being that the provider is free to accept or reject prospective patients. ' An exception often prevails in the case of a hospital which offers emergency room services. State statutes or common law rules may provide that even private hospitals have a duty to accept and treat patients who present with 15. See KING, supra note 1 at 15-20; Zaremski, supra note 3, at 6:04-6:08. The traditional rule is that no physician-patient relationship is created when a physician is retained by a third party, such as an insurer or an employer, to conduct a physical examination of a prospective or actual insured or employee. See, e.g., Ervin v. American Guardian Life Assurance Co., 376 Pa. Super. 132, , 545 A.2d 354, (1988); Hoover v. Williamson, 236 Md. 250, 252, 203 A.2d 861, 862 (1964). But see Green v. Walker, 910 F.2d 291, 295 (5th Cir. 1990) (requiring physician to inform actual employee of any findings posing imminent danger to his health). The rationale is that such examinations are undertaken for consultive purposes, at- the direction of and for the benefit of the insurance company or the employer, rather than for the purpose of medical advice or treatment. See generally, Annotation, What Constitutes Physician-Patient Relationships for Malpractice Purposes, 17 A.L.R. 4th 132, (1982); Annotation, Physician's Duties and Liabilities to Person Examined Pursuant to Physician's Contract with Such Person's Prospective or Actual Employer, 10 A.L.R. 3d 1071 (1966). 16. See KING, supra note 1 at 23-30; Zaremski, supra note 3, at 7: For Connecticut cases addressing the existence or duration of a duty, see Petriello v. Kalman, 215 Conn. 377, , 576 A.2d 474, 478 (1990) (hospital had no duty to obtain patient's informed consent for surgical procedure performed by nonemployee physician); Smith v. Gaynor, 41 Conn. Supp. 540, 544 (same); Prindle v. Dogali, 1991 WL (Conn. Super. 1991) (same); Logan v. Greenwich Hosp., 191 Conn. 282, 305, 465 A.2d 294, 306 (1983) (principle that one who gratuitously undertakes a service which he has no duty to perform must act with reasonable care in completing task not applicable where referring internist had no duty to discuss surgical procedure with patient or obtain informed consent). See also Emerick v. Borden, 2 C.S.C.R. 576 (1987) (plaintiff failed to allege existence of physician-patient relationship where plaintiff's affidavit states he believed there was one, but where psychiatrist defendant performed psychiatric evaluation pursuant to court order), appeal denied, 17 Conn. App. 802, 549 A.2d 681 (1988); Jacques v. Carter, 2 Conn. App. 27, 34, 476 A.2d 621, 625 (1984) (addressing jury instructions on abandonment and follow up care). 18. S. PEGALIS & H. WACHSMAN, AMERICAN LAW OF MEDICAL MALPRACTICE 2:3 (1980).
8 BRIDGEPORT LAW REVIEW [Vol. 12:381 medical emergencies." 9 C. Standard of Care and Deviation from the Standard of Care The term "standard of care" refers to the scope and nature of the duty owed by the provider to the patient. A physician has "a duty to use that degree of care and skill which is expected of a reasonably competent practitioner in the same class to which he belongs, acting in the same or similar circumstances.' '20 1. Professional Standards Coupled with the requirement for expert testimony and thus defined, the standard of care applicable to defendant physicians is no more than what physicians testifying as experts say it is. In some instances, according conclusive weight to professional custom may be the equivalent of allowing dangerous or hurtful medical practices to continue, unchecked by the law. 2 Not surprisingly, a few courts have ventured to lift the standards of the medical profession. For example, in a controversial 1974 decision, Helling v. Carey," the Washington Supreme Court held that it was negligence as a matter of law for an ophthalmologist to fail to test 19. Walling v. Allstate Ins. Co., 183 Mich. App. 731, 734, 455 N.W.2d 736, 738 (1990) (recognizing common-law duty of private hospital to treat patient in case of unmistakable medical emergency); Wilmington Gen. Hosp. v. Manlove, 54 Del. 15, 25, 174 A.2d 135, 140 (1961) (same); Thompson v. Sun City Community Hosp., 141 Ariz. 597, 602, 688 P.2d 605, 610 (1984) (recognizing statutory duty of hospital to provide emergency care); Guerrero v. Copper Queen Hosp., 112 Ariz. 104, 106, 537 P.2d 1329, 1331 (1975) (same). See generally, Annotation, Liability of Hospital for Refusal to Admit or Treat Patient, 35 A.L.R. 3D 841 (1971). Federal legislation such as the Emergency Medical Treatment and Active Labor Act, 42 U.S.C. 1395dd (1986), enacted to discourage the practice of "patient dumping," also supports a hospital duty to treat patients in emergency situations. See Thornton v. Southwest Detroit Hosp., 895 F.2d 1131, (6th Cir. 1990); Deberry v. Sherman Hosp. Ass'n, 741 F. Supp. 1302, 1305 (N.D. Ill. 1990); Thompson v. St. Anne's Hosp., 716 P. Supp. 8, 9-10 (N.D. Ill. 1989). 20. Blair v. Eblen, 461 S.W.2d 370, 373 (Ky. 1970). See also Zaremski, supra note 3, at 24: See, e.g., Thompson, 141 Ariz. at 603 n.4, 688 P.2d at 611 n.4 (physicians' trial testimony was "only probative of a negligent custom"); Toth v. Community Hosp. at Glen Cove, 22 N.Y.2d 255, 263, 239 N.E.2d 368, 373, 292 N.Y.S.2d 440, ("evidence that the defendant followed customary practice is not the sole test of professional malpractice"), reargument denied, 242 N.E.2d N.Y.S.2d 1033 (1968); Lundahl v. Rockford Memorial Hosp. Ass'n, 93 I1. App. 2d 461, 465, 235 N.E.2d 671, 674 (1968) ("what is usual or customary procedure might itself be negligence") Wash. 2d 514, 519 P.2d 981 (1974) (en banc).
9 1992) MEDICAL MALPRACTICE patients under forty years of age for glaucoma. 23 The court recognized that the incidence of the disease in this age group was low and acknowledged that testimony from medical experts for both the plaintiff and the defendant established that the prevailing professional standard did not require routine pressure tests for glaucoma for such patients. 2 Yet, performing its own exercise in cost-benefit balancing, the Helling court opined that "giving this test... is so imperative that irrespective of its disregard by the standards of the ophthalmology profession, it is the duty of the courts to say what is required." 2 The reasoning in Helling has not often been followed. Indeed, the Helling decision itself met with a legislative backlash to reaffirm the professional standard.s The professional standard is still the prevailing one in medical negligence actions, and compliance with professional protocol will almost always insulate a defendant from liability. 27 However, skepticism surrounding the fairness of adhering to a professional standard of care has played itself out more convincingly in the area of informed consent law, where many jurisdictions have embraced the use of a "lay," or "materiality" standard. This will be addressed below. 2.. Determinants of the Standard of Care At the outset, it should be stated that the relevant inquiry is into the standard of care prevailing at the time of the alleged malpractice, not into the standard of care prevailing at the time of trial. 28 In addition to time as a frame of reference, there are 23. Id. at 519, 519 P.2d at Id. at , 519 P.2d at Id. at 519, 519 P.2d at Following Helling, the Washington legislature enacted a statute addressing the standard of care which arguably aimed at overruling the case. However, the Washington Supreme Court reaffirmed the Helling rule that "reasonable prudence may require a standard of care higher than that exercised by the relevant professional group." Gates v. Jensen, 92 Wash. 2d 246, , 595 P.2d 919, 921 (1979). See also Harris v. Robert C. Groth, M.D., Inc., 99 Wash. 2d 438, 451, 663 P.2d 113, 120 (1983) ("(tlhe degree of care actually practiced by members of the profession is only some evidence of what is reasonably prudent - it is not dispositive"). 27. KING, supra note 1, at 47; Zaremski, supra note 3, at 24:02, 36: KING, supra note 1, at 55. AM. JUR., supra note 4, at 215. For a Connecticut case, see Tomer v. American Home Products, 170 Conn. 681, 687, 368 A.2d 35, 38 (1976) (standard of care applicable to doctors dependent upon state of their art at time allegedly negligent).
10 BRIDGEPORT LAW REVIEW [Vol. 12:381 three major determinants of the applicable standard of care: (1) the geographic location where the defendant practices; (2) the medical school of thought (or school of practice) to which the defendant belongs; and (3) the specialty (if any) with which the defendant can be identified. 9 These determinants may affect the level of care against which the defendant's conduct is to be measured; they may also affect the competency of expert witnesses to testify. As trends toward professionalism and scientific uniformity have transformed a variety of historic healing arts into modern medical sciences, the geographic location determinant and the school of thought determinant have lost much of their original importance. More and more, all determinants are being merged into one "similarity of situation" criterion. 3. Geographic Location Discussions of the geographic component of the standard of care often center around applications or erosions of the "locality" rule. This rule requires physicians to exercise the same degree of skill, knowledge, and care exercised by other physicians in the same community. 30 As originally conceived, the rule was meant to recognize differences in the quality of medical education, in the opportunity to stay abreast of advancements, and in the resources available to the physician. Judicial recognition of standardized medical education and training, along with judicial awareness of the hesitancy of local practitioners to testify against one another (the so-called "conspiracy of silence"), combined to bring the locality rule under attack. At present, varying rules are enforced among the states." Some jurisdictions retained the locality rule but expanded the definition of "locality" to include a similar community within the state. 3 2 Other jurisdictions expanded the definition to include a similar community in the United States." Since the latter approach essentially imposes a national standard of care, a 29. See generally, KING, supra note 1, at 55-63, Zaremski, supra note 3, at 6:11, 24: KING, supra note 1, at 58-63; AM. Ju&., supra note 4, at ; Zaremski, supra note 3, at 24:03-24:06, 25:08-25:09. See also Hall v. Hilbun, 466 So. 2d 856 (Miss. 1985). 32. See, e.g., Hilden v. Ball, 117 Idaho 314, 316, 787 P.2d 1122, 1124 (1990). 33. See, e.g., Chapel v. Allison, 241 Mont. 83, 92, 785 P.2d 204, (1990).
11 1992] MEDICAL MALPRACTICE resources component may be added to the formula, in recognition of the fact that facilities and equipment are not the same everywhere. 34 Where medical specialists are concerned, the trend is to hold practitioners to a nongeographic standard of care, 6 even in those jurisdictions which continue to apply the, locality rule for nonspecialists Line of Practice: Schools and Specialties Historically, the healing arts encompassed a variety of different schools, systems, or philosophic approaches to diagnosis and treatment, including homeopathy, allopathy, osteopathy, chiropractic, naturopathy, and Christian Science healing. Most of these have given way to what is often referred to as "the regular practice of medicine," while the freedom to practice other healing arts has been circumscribed by virtue of licensing requirements imposed by state legislatures. 3 2 As a result, the school of thought limitation is gradually going the way of the locality rule. In some areas of the country, separate schools have survived. Where practitioners belonging to these schools have neither attempted to treat ailments outside 'their field nor stepped outside the bounds of their competency, courts have recognized the rights of these practitioners to have their conduct tested by the standards of their school. 88 Not surprisingly, problems arise surrounding the applicable standard of care when 34. Id. at 93, 785 P.2d at See, e.g., Aasheim v. Humberger, 695 P.2d 824, (Mont. 1985) 36. See, e.g., Jordan v. Bogner, 1991 WL , (Colo. App. 1991). 37. KING, supra note 1, at In Connecticut, the practice of the healing arts is defined by statute to mean "the practice of medicine, osteopathy, chiropractic, podiatry, and naturopathy." CONN. GHN. STAT (1991) (healing arts defined). Connecticut's unauthorized practice of medicine statute is inapplicable to dentists, podiatrists, Christian Science practitioners, and those persons licensed to practice any of the healing arts listed in 20-1 (1991) who do not use or prescribe drugs, medicines, or surgery in their practice. See id (1991) (who may practice medicine or surgery). In Connecticut, the following health professions, among others, are separately defined and licensed: (1) medicine or surgery, Id (who may practice medicine or surgery), Id (1991) (licensure); (2) osteopathy, Id (Licensure), Id (osteopathy defined); (3) chiropractic, Id (definitions), Id (license); (4) naturopathy, Id (practice defined), Id (licensure); (5) podiatry, Id (1991) (podiatry defined), Id (1991) (qualifications for practice). 38. KING, supra note 1, at 56-57; AM. JuR., supra note 4, at 213; Zaremski, supra note 3, at 25:11.
12 BRIDGEPORT LAW REVIEW [Vol. 12:381 these practitioners treat conditions for which there is a generally recognized course of diagnosis and treatment in the regular practice of medicine. In these situations, many courts hold "nonmedical" practitioners to the medical standard. 3 9 The term "school of thought" is properly used to denote something more than a mere difference of professional opinion and should not be equated with terms alluding to clinical judgment ("respectable minority," "best judgment," "medical judgment," "clinical innovation," etc., described below), which are used to denote the fact that, within a profession or a specialty, alternative methods of diagnosis and treatment are recognized as acceptable.' 0. Within the regular practice of modern medicine, there are of course a plethora of recognized specialties, including various surgical specialties. Briefly, the rule is that specialists (and those who hold themselves out as specialists) are held to the standards of similarly-situated members of the specialty.' As will be seen, this rule engenders considerable debate regarding the court's decision of who may be qualified to testify as an expert. D. Standard of Care in Connecticut 1. Connecticut General Statutes Section c Connecticut General Statutes section c addresses the standard of care in a negligence action against a health care provider and the qualifications, required of an expert witness. The statute codifies the professional standard of care by providing that the "prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.', 2 The statute contemplates that 39. KING, supra note 1, at 56-57; AM. JuR., supra note 4, at 214; Zaremski, supra note 3, at 25: Zaremski, supra note 3, at 24:02. See Wasfi v. Chaddha, 218 Conn. 200, 588 A.2d 204 (1991) (demonstrates confusion which may result from allusion to "school of thought" when intended reference is to exercise of clinical judgment). 41. KING, supra note 1, at 57-58; AM. JUR., supra note 4, at 226; Zaremski, supra note 3, at 24:02. Practitioners in the allied health care fields are held to the standards of similarly-situated members of their field. See KING, supra note 1, at 57-58; AM. JuJ., supra note 4, at CONN. GEN. STAT c(a) (1991) (standard of care in negligence action
13 19921' MEDICAL MALPRACTICE nonspecialists may testify when the defendant is a nonspecialist and that specialists in the same specialty as the defendant may testify when the defendant is a specialist. 43 However, another provision gives the court discretion to allow one who does not fall within the definitions of a "similar health care provider" to testify. The court must satisfy itself that the witness "possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide.., expert testimony as to the prevailing professional standard."" A final stipulation is that "[s]uch training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim." ' ' 5 To some extent, this subsection has the effect of throwing the analysis of the witness' competency back on Connecticut case law. 2. Connecticut Case Law In Connecticut, a physician is under a "duty to exercise that degree of care, skill, and diligence to his patient which physicians [in the same general neighborhood and] in the same general line of practice ordinarily possess and exercise in similar cases. ''4 6 As to the geographic location limitation, at one time Connecticut followed the locality rule, and the "same general neighborhood" was interpreted as a territorial limitation denoting the community in which the doctor practiced. By the 1930s, the conceptualization was broadened to the state of Connecticut.' By 1980, it was broadened to "at least the entire state of Connectiagainst health care provider; qualifications of expert witness). 43. CONN. GEN. STAT c(b) (1991) (non-specialists); Id c(c) (specialists). 44. CONN. GEN. STAT c(d) (1991). 45. Id. 46. Shenefield v. Greenwich Hosp. Ass'n., 10 Conn. App. 239, 248, 522 A.2d 829, 834 (1987); Marshall v. Yale Podiatry Group, 5 Conn. App. 5, 7, 496 A.2d 529, 530 (1985); Buckley v. Lovallo, 2 Conn. App. 579, 584, 481 A.2d 1286, 1290 (1984); Cross v. Huttenlocher, 185 Conn. 390, 393, 440 A.2d 952, 954 (1981); Katsetos v. Nolan, 170 Conn. 637, , 368 A.2d 172, 177 (1976); Fitzmaurice v. Flynn, 167 Conn. 609, , 356 A.2d 887, 891 (1975); Levett v. Etkind, 158 Conn. 567, 573, 265 A.2d 70, 73 (1969); Synder v. Pantaleo, 143 Conn. 290, 292, 122 A.2d 21, 23 (1956). 47. Geraty v. Kaufman, 115 Conn. 563, 574, 162 A. 33, 37 (1932).
14 BRIDGEPORT LAW REVIEW (Vol. 12:381 cut." 8 In a 1983 decision, Logan v. Greenwich Hospital,* 9 the Connecticut Supreme Court adopted the nationwide standard of care, so the "general neighborhood" phrase has been written out of the formula. 60 As to the specialty of practice limitation, there are a number of cases predating the 1986 tort reform which address the issues regarding the standard of care applicable to specialists. 6 1 To the extent that these are consistent with Connecticut General Statutes section c, they will still guide courts proceeding under the discretionary clause of the statute. For example, in Marshall v. Yale Podiatry Group, 2 decided in 1985, the Connecticut Appellate Court held that an orthopedic surgeon who was familiar with the surgical procedure performed by the defendant podiatrist on the plaintiff's feet was qualified to testify as an expert on the standard of care required in the performance of foot surgery by a podiatrist. 8 The court proposed the following standard: "[Wlhere the evidence indicates that 48. Pisel v. Stamford Hosp., 180 Conn. 314, , 430 A.2d 1, 12 (1980) (explaining that with regard to qualifications of expert witness, crucial question is not whether he practiced in locale where the accident occurred, but whether he knows standard of care in locale). See also Powers v. United States, 589 F. Supp. 1084, 1099 (D. Conn. 1984) Conn. 282, 301, 465 A.2d 294, (1983) (standard of care and geographical standard for expert witnesses testifying in malpractice cases includes entire nation). 50. Id. at , 465 A.2d at See, e.g., Buckley, 2 Conn. App. at 584, 481 A.2d at 1290 (plastic surgeons may testify on standard of care for breast reduction operation where defendant is general surgeon). Cross, 185 Conn. at 393, 440 A.2d at 955 (where neither of two pediatric neurologists testified he was familiar with standard of'care applicable to physicians in practice of general pediatrics, plaintiff failed to establish standard of care applicable to defendant general pediatrician); Katsetos, 170 Conn. at 647, 368 A.2d at 178 (specialist in field different from that of dependent may testify when treatment in question falls within field of all medical specialties and minimum standard of care was common to all specialties); Fitzmaurice, 167 Conn. at 618, 356 A.2d at 892 (trial court erred in excluding surgeon specializing in breast cancer surgery from testifying to standard of care among obstetrician-gynecologists pertaining to breast examinations and diagnosis of. breast lumps). In Fitzmaurice, the court held that "the scope of the witness' knowledge and not the artificial classification by title... should govern the threshold question of admissibility." Id. The court stated that the "qualifications of the expert witness are not measured by whether the expert is in the same specialty as defendant... but by whether the expert knows what the standard of care is in the locale where the defendant practices sufficiently for the witness to give an opinion as to the defendant's conformity with that standard". Id Conn. App. 5, 496 A.2d 529 (1985). 53. Id. at 11-12, 496 A.2d at 532.
15 19921 MEDICAL MALPRACTICE specialties overlap and that the applicable standard of care is common to each, a medical expert from either of the overlapping groups who is familiar with that common standard is competent to testify as to the standard of care." 64 More recent authority is found in a 1989 decision of the Connecticut Supreme Court, Pool v. Bell,"' which held that the trial court properly allowed a neurologist to testify regarding the standard of care applicable to a general surgeon." In Pool, the plaintiff claimed that the defendant, a general surgeon, negligently performed a lymph node biopsy on the plaintiff's neck, causing nerve damage. 57 The plaintiff's expert, a neurologist, testified that he was familiar with lymph node biopsy procedures and that his practice included the diagnosis of neurological complications resulting from operations." On appeal, the defendant argued that the neurologist should not have been permitted to testify because the evidence did not indicate any overlap between the specialties of general surgery and neurology. 59 The Connecticut Supreme Court, refusing to rule on the correctness of the "overlap" standard applied in Marshall, reiterated that the central question in qualifying an expert is whether the proposed expert knows what the standards of practice are. 60 In a 1990 opinion, Ford v. Thankappen, 1 " a Connecticut Superior Court refused to qualify a doctor of osteopathic medicine to testify for the plaintiff in a malpractice action brought against a psychiatrist. 6 " The plaintiff alleged that the defendant was negligent in his treatment of a substance-abusing, suicidal patient. 3 The court found that the proposed expert, who had completed a two-year residency in psychiatry but only one year of a three-year program in psychoanalytic study, and who had limited his practice to marriage counseling, lacked the knowledge and experience necessary to critique the care provided Id. at 8-9, 496 A.2d at Conn. 536, 551 A.2d 1254 (1989). 56. Id. at 543, 551 A.2d at Id. at 537, 551 A.2d at Id. at 543, 551 A.2d at Pool, 209 Conn. at 542, 551 A.2d at Id. at 542, 551 A.2d at 1258 (citations omitted) C.S.C.R. 967 (1990). 62. Id. at Id. at Id.
16 BRIDGEPORT LAW REVIEW [Vol. 12:381 As to the school of thought limitation, century-old precedent is found in the case of Force v. Gregory, 65 where the Connecticut Supreme Court held that the trial court erred in denying the defendant, a homeopathic physician, a charge instructing the jury that conduct "by a physician of one particular school is to be tested by the general doctrines of his school, and not by those of other schools." 66 Evidence in the case showed that an allopathic physician would have treated the patient's case differently, and the court opined that the jury should have been instructed that "the relative merits of the two schools were in no sense before them for their consideration." 's7 While Connecticut courts have continued to recognize the theoretical principle that the law should not judge between different medical schools of thought if the physician acts according to the standards of the school with which he is identified, 8 in practice the situations where such a principle could be applied grow increasingly rare." As will be discussed below, in the usual case, a trial court should refuse a defendant's request to charge the jury on the subject of different schools of thought in medicine, particularly when an instruction educating the jury on permissible differences in clinical judgment more correctly embraces a defendant's contention Conn. 167, 27 A (1893). 66. Id. at 168, 27 A. at Id. at 171, 27 A. at See Wasfi v. Chaddha, 218 Conn. 200, , 588 A.2d 204, (1991); Katsetos v. Nolan, 170 Conn. 637, 652, 368 A.2d 172, 181 (1976); Garety v. Kaufman, 115 Conn. 563, 571, 162 A. 33, 36 (1932). 69. It should be noted that the practice of homeopathic medicine is still recognized in Connecticut and treated as a distiict branch of medicine. For example, it is required that: [tihe Department [of Health Services] must issue one license for the practice of allopathic medicine and another for the practice of homeopathic medicine... [Tihe statutes do not differentiate between the activities that may lawfully be performed by allopathic and homeopathic physicians other than to'state that a physician must practice in the kind or branch of practice stated in his or her license... [Tihe Department must provide an examination for the licensure of homeopathic physicians that is distinct from the examination for licensure as an allopathic physician. 86 Conn. Op. Att'y. Gen. 11 (1986). See also CONN. GEN. STAT (1991) (Connecticut homeopathic medical examining board); id. 20-8a (Connecticut medical examining board); id (1991) (who may practice medicine or surgery). See also supra note See, e.g., Wasfi, 218 Conn. at , 588 A.2d at 209 (trial court made "unfortunate use" of term "schools of thought" in attempting to charge jury on principle that physicians may choose between "alternative acceptable methods" of diagnosis and treatment without necessarily incurring liability for bad result).
17 19921 MEDICAL MALPRACTICE E. Causation Causation is said to embrace two elements: cause in fact and legal cause. Cause in fact has been equated with the "but-for" and "substantial factor" rules which ask whether the plaintiff's injury would not have occurred "but for" the defendant's conduct or whether the defendant's conduct was a "substantial factor" in bringing about the plaintiff's injury. 71 Generally, the question of cause in fact is for the jury, unless evidence from which the jury could reasonably find a causal nexus between the defendant's conduct and the plaintiff's injury is lacking. Legal cause is a term which often signifies an inquiry into whether or not the court, for reasons of public policy and fairness, will subject a defendant to liability, or whether the court will deem a defendant non-liable as a matter of law because the court views the connection between conduct and injury as too remote.72 Courts may reach the issue of legal cause by analyzing the scope of the duty the defendant owed to the plaintiff, the foreseeability of the plaintiff, the foreseeability of the harm, or the role of intervening cause. 73 As noted above, expert testimony is usually required on the issue of causation when medical negligence is alleged, as medical causation is generally treated as a technical subject beyond the ordinary knowledge of the jury; otherwise, rules concerning proof of causation in medical malpractice actions follow those applicable in ordinary negligence actions. Connecticut Cases Medical malpractice cases in Connecticut follow typical rules governing proof of causation. Expert testimony is required on the issue. 74 This rule may operate harshly. For example, in 71. PROSSER & KEETON, supra note 2, at Id. at Id. 74. See supra note 6. "[C]ausation may be proved by circumstantial evidence and expert testimony." Shelnitz v. Greenberg, 200 Conn. 58, 66, 509 A.2d 1023, 1027 (1986) (citing Boland v. Vanderbilt, 140 Conn. 520, 525, 102 A.2d 362 (1953)). See also Pisel v. Stamford Hosp., 180 Conn. 314, , 430 A.2d 1, 15 (1980). "[Tlhe causal relation between an injury and its later physical effects may be established by the direct opinion of a physician, by his deduction from the process of eliminating causes other than the traumatic agency, or by his opinion based on a hypothetical question." Shelnitz, 200 Conn. at 67, 509 A.2d at 1028; see also Grody v. Tulin, 170 Conn. 443, , 365 A.2d
18 BRIDGEPORT LAW REVIEW (Vol. 12:381 the 1989 case of Vinchiarello v. Kathuria,'7 the plaintiff's decedent, an outpatient, died as a result of a self-inflicted overdose of a drug, Asendin (amoxapine, an antidepressant), which had been prescribed by a psychiatrist. 76 The Connecticut Appellate Court held that the trial court acted properly in directing a verdict for the defendants, a psychiatrist and his hospital-employer, since the plaintiff did not offer expert testimony to establish that negligent monitoring of the decedent was a substantial factor in causing the patient's death. 77 The plaintiff's expert testified that the defendant did not follow an established treatment plan for the patient's care and that the number of times the defendant treated the patient fell below the community standard. 78 However, the plaintiffs expert did not testify that in his opinion there was a causal relationship between the patient's suicide and the defendant's failure to monitor her care more frequently7 9 As to cause in fact, it has been recited repeatedly in Connecticut malpractice cases that "the expert opinion that seeks to establish the causal connection between the injury and the alleged negligence must rest upon more than surmise or conjecture." ' The inquiry into cause is concerned with probabilities, not with possibilities, that is, a plaintiff must prove it is more likely than not that a defendant's conduct caused the injury to the plaintiff."' A recent decision of the Connecticut Supreme Court, Petriello v. Kalman, 8 2 appears to have placed significant strain upon this traditional understanding of causation by allowing a malpracticed plaintiff to recover for conduct by a defendant 1076, 1080 (1976) Conn. App. 377, 558 A.2d 262 (1989). 76. Id. at 378, 558 A.2d Id. at 382, 558 A.2d at Id. at 382, 558 A.2d at Vinchiarello, 18 Conn. App. at 382, 558 A.2d at Shelnitz, 200.Conn. at 66, 509 A.2d at 1027 (citing Boland, 140 Conn. at 525, 102 A.2d at 365); see also Samose v. Hammer-Passero Norwalk Chiropractic Group, 24 Conn. App. 99, 103, 586 A.2d 614, (1991) (court removed speculation and conjective from causation analysis), appeal denied, 218 Conn. 903, 588 A.2d 1079 (1991); Grady, 170 Conn. at 451, 365 A.2d at 1080 ("mere speculation or conjecture.., cannot support causal connection"). 81. See, e.g., Shelnitz, 200 Conn. at 66, 509 A.2d at 1027; Grody, 170 Conn. at 451, 365 A.2d at Conn. 377, 576 A.2d 474 (1990).
19 19921 MEDICAL MALPRACTICE which slightly enhanced the plaintiff's risk of harm. 3 However, upon closer inspection it will be seen that innovative theories of recovery such as increased risk and its companion, lost chance, do not really alter traditional rules of causation; they are better understood as redefining the meaning of injury to include statistical injury. The arrival in Connecticut of these novel theories of recovery will be described below. As to legal cause, outcomes in cases involving the impact of unforeseeability doctrine" 4 or intervening cause doctrine s on the causal analysis tend, as would be expected, to be heavily factdependent. F. Res Ipsa Loquitur Res ipsa loquitur (the thing speaks for itself) is a rule of circumstantial evidence. In some tort cases, the very fact that a particular harm has occurred may establish, inferentially, the proof of the tortious event having happened, the proof that the defendant's conduct was unreasonable, or the proof that the defendant's conduct caused the injury to the plaintiff." 83. Id. at 398, 576 A.2d at For a case on the foreseeability of the harm, see Pisel v. Stamford Hosp., 180 Conn. 314, , 430 A.2d 1, 15 (1980) (defendant failed to supervise delusional patient). The court stated that "[u]nusual or bizarre results can become a factor on the question of proximate cause." Id. However, "the court [did] not find it extraordinary that a psychotic patient... whose view of space and distance is distorted might wedge her head between a mattress and a side rail" of a bed and injure her brain. Id. See also Wasfi v. Chaddha, 218 Conn. 200, , 588 A.2d 204, (1991) (addressing jury instruction which included reference to foreseeable risk). 85. For a case on intervening cause involving multiple providers, see Kiniry v. Danbury Hosp., 183 Conn. 448, 454, 439 A.2d 408, 412 (1981). In Kiniry, examination by fulltime hospital emergency room physician of a patient injured in a fall down stairs resulted in skull and wrist x-rays taken at 10:00 p.m. Id. Skull and wrist x-rays revealed fractures. Id. The on-call orthopedic surgeon was summoned, while the on-call neurosurgeon was not. d. The orthopedic surgeon arrived at 11:15 p.m., set the patient's wrist and summoned the neurosurgeon at 2:15 a.m. Id. The neurosurgeon arrived at 3:10 a.m. and found the patient in a deep coma. Id. The Connecticut Supreme Court held that the trial court correctly instructed the jury on whether the negligence of emergency room physician and hospital was the proximate cause of patient's death and whether the orthopedic surgeon's conduct constituted intervening or superseding cause sufficient to break the causal connection between the negligence of emergency room physician and hospital and patient's death. Id. See also Wasfi, 218 Conn. at , 588 A.2d at (addressing jury instruction on intervening cause). 86. See PROSSER & KEgroN, supra note 2, at 39; RESTATEMENT (SECOND) OF TORTS 328 D (1965).
20 BRIDGEPORT LAW REVIEW [Vol. 12:381 Drawing on the guidelines set forth in section 328 D of the RESTATEMENT (SECOND) OF TORTS, courts have articulated conditions that should be present if the doctrine is to be employed: (1) the event in question must be one which ordinarily would not occur in the absence of someone's negligence; (2) other possible causes of the event, including any contributory conduct of the plaintiff, are eliminated by the evidence; and (3) the alleged negligence is within the scope of a duty owed by the defendant to the plaintiff or, according to a harsher alternative formulation, the instrumentality causing the plaintiff's injury was within the exclusive control of the defendant. 8 7 Sometimes another condition is added to the formula which suggests that information concerning the true explanation of the event must be more readily accessible to the defendant than to the plaintiff. 8 " In sum, a plaintiff who relies on res ipsa loquitur generally has the burden of proving the injury, the defendant's control, the improbability of the injury without negligence, and the plaintiff's lack of negligence. In most jurisdictions, the procedural effect of res ipsa loquitur 8 9 is to create a permissible inference of negligence; the jury is allowed, not compelled, to infer that the defendant was negligent. A few states treat res ipsa loquitur as a presumption, so that the plaintiff will prevail unless the defendant comes forward with evidence to rebut the presumed negligence. As indicated above, when used in the context of medical malpractice, the doctrine of res ipsa loquitur can provide an exception to the rule of expert testimony, because it may operate to relieve a plaintiff of the need to present expert testimony on the deviation from the standard of care, on causation, or both. The most compelling cases for the application of this doctrine in the malpractice context are made by fact patterns in which the patient is anesthetized and an object is left in the patient's body during surgery, or an injury to a -healthy part of the body (particularly one remote from the treatment area) results 87. The conditions listed in (1)(3) are those listed in the RESTATEMENT (SECOND) OF TORTS 328 D (1965), with the exception of the harsher alternative formulation of (3), which is a creature of case law. See PROSSER & KEETON, supra note 2, at 39. The Restatement disavows the harsher formulation. RESTATEMENT (SECOND) OF TORTS 328 Comment g (1965). 88. PROSSER & KEETON, supra note 2, at Id. at 40.