334 Conn. 823
Conn.2020Background
- Laura Kos delivered a child after a median episiotomy performed by Dr. Elisa Girard; Girard diagnosed a third‑degree extension, repaired it, and performed a post‑repair digital rectal exam.
- The day‑after hospital exam was normal, but the plaintiff later reported discharge, pain, and was found to have a small rectovaginal fistula and sphincter separation; she underwent surgical repair.
- Plaintiffs sued for malpractice, alleging Girard failed to identify a fourth‑degree extension and failed to properly examine, diagnose, and repair it.
- Plaintiffs’ expert (Young) testified the standard of care requires a prerepair digital rectal exam to identify a fourth‑degree extension; defendants’ expert (Ling) testified the standard calls for postrepair rectal exam and discourages prerepair exams due to contamination/infection risk; defendants’ causation expert (Flynn) attributed the fistula to infection, not an unrepaired fourth‑degree tear.
- The trial court instructed the jury on the acceptable‑alternatives doctrine over plaintiffs’ objection; jury found plaintiffs proved the standard of care but that Girard did not breach it (implying a third‑degree, not fourth‑degree, extension); plaintiffs appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the acceptable‑alternatives jury instruction was supported by evidence | The instruction was improper because no expert said both prerepair and postrepair rectal exams were accepted alternatives in the medical community; experts gave competing single‑method opinions, not that both were acceptable. | The evidence supported the instruction because experts disagreed about timing and Ling did not explicitly say prerepair exam violated the standard. | The court held the instruction was improper because competing expert opinions alone do not establish two acceptable methods; a qualified expert must testify that more than one method is acceptable. |
| Whether the erroneous acceptable‑alternatives instruction was harmful and whether the doctrine should be abolished | The improper charge likely prejudiced the jury, exculpated the defendant, and warranted reversal; alternatively, the doctrine should be abolished. | Any error was harmless because liability turned on whether a fourth‑degree extension existed; the jury necessarily found no fourth‑degree extension, so the instruction could not have affected the verdict; doctrine should remain. | The court found the error harmless (did not affect the verdict) and declined to abolish the doctrine. |
| Whether the trial court’s supplemental instruction narrowed plaintiffs’ breach theory improperly | The supplemental reply (stating plaintiffs’ expert said prerepair exam is a required component) unduly limited plaintiffs’ allegation to inspection only, excluding diagnosis/repair claims. | The alleged failure to diagnose and repair was premised on the prerepair‑exam theory; the supplemental language tracked the evidence and plaintiffs’ theory, and a later supplemental reiteration cured any narrow wording. | The court held the supplemental instruction was consistent with the evidence and arguments and, read as a whole with the charge, did not improperly limit plaintiffs’ allegations. |
Key Cases Cited
- Wasfi v. Chaddha, 218 Conn. 200 (1991) (acceptable‑alternatives doctrine applies only when evidence shows more than one method is accepted in the profession)
- Geraty v. Kaufman, 115 Conn. 563 (1932) (conflicting expert testimony alone is insufficient to support a schools‑of‑thought instruction)
- Katsetos v. Nolan, 170 Conn. 637 (1976) (schools‑of‑thought instruction proper when evidence shows recognized schools with distinct practices)
- Stokes v. Norwich Taxi, LLC, 289 Conn. 465 (2008) (jury instructions must be confined to issues supported by pleadings and evidence)
- Allison v. Manetta, 284 Conn. 389 (2007) (harmless‑error framework for instructional impropriety: consider evidence, other instructions, counsel’s arguments, and jury indications)