Arroyo v. University of Connecticut Health Center, 167 A.3d 1112

Background

Jose Arroyo underwent a vasectomy on April 1, 2013 at the University of Connecticut Health Center performed by Dr. Peter Albertsen; days later his left testicle was found to be necrotic and removed on April 4, 2013.
Plaintiffs filed a timely notice of claim with the Connecticut Claims Commissioner (Sept. 13, 2013) with a statutory certificate of good faith for a medical malpractice claim; the commissioner authorized suit.
The Superior Court complaint repeated the notice allegation that Albertsen ‘‘dissected and ligated surrounding vascular structures’’ instead of the vas deferens and thereby deprived blood flow to the left testicle; count one asserted six specific negligence theories.
At bench trial the parties’ experts agreed Albertsen had mistaken a vein for the vas deferens; the dispute was causation: plaintiffs’ expert (Brodherson) testified the artery was injured by cauterization during that misdissection; defendants’ expert (Glazier) argued post-operative torsion occurred after the vasectomy.
The trial court found (by a preponderance) that Albertsen deviated from the standard of care, injured the testicular artery during the vasectomy, and proximately caused necrosis; judgment awarded combined damages of $386,249.81 (later reduced for collateral source).
On appeal defendants argued (1) sovereign immunity barred the trial theory because the Claims Commissioner had not waived immunity for that specific theory, (2) variance between complaint and evidence, and (3) insufficient causation evidence. The appellate court affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial judgment rested on a theory materially different from the notice to the Claims Commissioner such that sovereign immunity bars judgment	The notice (with good-faith certificate) alleged dissection/ligation of "vascular structures" depriving blood flow; §4-160(b) requires the commissioner to authorize suit for malpractice claims accompanied by a good-faith certificate regardless of drafting detail	The notice implicitly referred only to ligation of the testicular artery, and the trial theory (cauterization of the artery while ligating a vein) was different, so no waiver was obtained for that theory	Rejected. §4-160(b) mandated authorization once a good-faith certificate was filed; §4-147 requires only a concise basis. The notice was not materially different from the trial theory, so sovereign immunity did not bar relief
Whether variance between the complaint and evidence at trial required reversal	Plaintiffs relied on evidence and expert testimony at trial; defendants had opportunity to object and did not	Defendants argued the cauterization theory was not pleaded in the Superior Court complaint, so judgment was based on an unpled theory	Waived. Defendants failed to object at trial to variance; appellate court declined to review this argument on the merits
Whether plaintiffs presented sufficient evidence of causation (that Albertsen’s conduct caused arterial injury and necrosis)	Brodherson offered differential-diagnosis reasoning: pathology showed vein was ligated, ultrasound showed absent blood flow, epididymis appeared viable (making torsion unlikely), and cauterization near the artery could have caused arterial injury	Defendants argued Brodherson’s causation opinion was speculative and torsion after the procedure better explained the necrosis (and limited intraoperative bleeding undermined arterial injury at surgery)	Affirmed. The court could credit Brodherson’s differential-diagnosis opinion; evidence supported that negligence was a more-likely-than-not cause and the finding was not clearly erroneous

Key Cases Cited

Morneau v. State, 150 Conn. App. 237 (2014) (discusses scope of notice to Claims Commissioner and limits where commissioner exercises adjudicatory discretion)
D’Eramo v. Smith, 273 Conn. 610 (2005) (§4-160(b) removes the commissioner’s discretionary gatekeeping for malpractice claims accompanied by a good-faith certificate)
Gold v. Greenwich Hosp. Assn., 262 Conn. 248 (2002) (elements of medical malpractice claim: standard of care, breach, causation)
Sargis v. Donahue, 142 Conn. App. 505 (2013) (expert opinion may establish causation by differential diagnosis and reasonable probability)
Milliun v. New Milford Hosp., 310 Conn. 711 (2013) (expert testimony ordinarily required to show medical causation)
Tedesco v. Stamford, 215 Conn. 450 (1990) (variance between pleadings and proof must be raised at trial or is waived)
Rawls v. Progressive Northern Ins. Co., 310 Conn. 768 (2014) (plaintiff must show defendant’s negligence was more likely than not the cause)
Burton v. Stamford, 115 Conn. App. 47 (2009) (causation is a question of fact for the trier; appellate review is for clear error)