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