43 Conn. App. 294 | Conn. App. Ct. | 1996
The plaintiff appeals from the judgment for the defendant, after a jury trial, in this medical malpractice action. The action was brought by Marcella D. Borkowski as administratrix of the estate of her deceased husband Anthony Borkowski (decedent) against the defendant, Chandra K. Sacheti, a cardiologist. The amended complaint is in three counts with both the first and second counts alleging in part that this is a “negligence action and statutory action [brought] pursuant to Conn. Gen. Stat. § 52-555.’
On appeal, the plaintiff claims that the trial court improperly (1) refused to charge the jury on the second count, which sought compensation for a “lost or decreased chance” of survival, (2) permitted the defendant to introduce evidence of contributory negligence
In order to put what follows into context, we set out certain facts that the jury could reasonably have found. The decedent died on October 24, 1987, after suffering a myocardial infarction and being admitted to Rockville General Hospital. The decedent was forty-seven years of age at that time and had a history of heart problems. On August 6, 1985, he had sustained a myocardial infarction and the subsequent diagnosis was that of chronic stable angina pectoris. He was under the care of the defendant from 1985 until some time in 1987. During that period, he was treated with medication. The decedent was employed as the business manager at Manchester Community College. He was married and had one son about twelve years of age.
The last time prior to the decedent’s going to Rock-ville General Hospital on October 22, 1987, that the defendant had seen or spoken to him was on April 30, 1987. On that occasion, the defendant had examined him during a scheduled office visit. The decedent had also undergone a stress test in that office on that date. At that time, the defendant told him that this stress test was “more significant” than his September, 1985 stress test, commenting that this latest stress test was “abnormal.” The defendant discussed the matter with him on April 30, 1987, and told the decedent that it was his feeling that the decedent should have an angiogram and that when he came in for his next scheduled visit “we will schedule the angiogram.” The defendant told the decedent: “[Y]ou really need a cardiac [catheterization], think it over.”
The decedent’s next scheduled visit was set for June 24, 1987. He did not appear at the defendant’s office
At this point, we refer to certain circumstances claimed by the plaintiff as surrounding the telephone calls the decedent allegedly made to the defendant’s office starting on October 19, 1987, all of which the defendant vigorously denied ever took place. Those circumstances include the following claims of the plaintiff. On Monday, October 19,1987, the decedent dressed, ate and drove his son to school. The plaintiff claimed that on that day the decedent called the defendant’s office,
Chronologically, we now come to further events disclosed by the evidence. On Thursday, October 22,1987, the decedent got up and drove his son to school. He was home until leaving sometime between 4 and 5 p.m. to do some errands for the plaintiff and to buy some batteries for his son. While he was out he encountered a friend and made tentative arrangements for that evening to go to that friend’s house, some thirty minutes from his home, to watch a World Series game. Upon arriving home at about 7 p.m., he complained of a bad headache and, between 7:30 and 8 p.m., he called the defendant’s office. The defendant’s answering service answered the call. Shortly thereafter, the physician who was covering for the defendant at that time telephoned the decedent. The decedent told the physician that he had chest pain radiating into his left arm. The physician advised him to go to the emergency room at Rockville General Hospital. After taking a shower, the decedent went by ambulance to a hospital where he was admitted at 8:58 p.m. An electrocardiogram taken at that time showed that he had not had a heart attack, and he was started on thrombolytic treatment. At 10:40 p.m., however, about one and one-half hours after his admission, the decedent suffered cardiac arrest. He was successfully revived and remained in the hospital. On Saturday, October 24,1987, the decedent again suffered cardiac arrest and died.
I
We first address the plaintiffs claim that the trial court improperly refused to charge the jury on the sec
The plaintiff argues that the lost chance doctrine is recognized in Connecticut and she points to LaBieniec v. Baker, 11 Conn. App. 199, 526 A.2d 1341 (1987), which she claims this court recognized such a cause of action. The defendant, while acknowledging in his brief that LaBieniec “did not relax the established standards for proximate cause,” nevertheless, argued before us that the attorneys who briefed LaBieniec in this court had not addressed Professor Joseph H. King’s widely cited Yale Law Journal article. J. King, “Causation, Valuation, and Chance in Personal Injury Torts Involving Preexisting Conditions and Future Consequences,” 90 Yale L.J. 1353 (1981).
In recent years, a growing line of cases, generally termed “loss of a chance” cases, has put a strain on the
In recent years, a number of states have sought to mitigate this result of the traditional causation standard
The relaxed causation approach, commonly referred to as the substantial chance approach, has been explained by one court that adopted it as follows: “[T]he loss of chance theory is, essentially, one that allows an injured plaintiff to recover damages based upon a reduced standard of causation rather than the traditional one which requires the plaintiff to prove that it is more probable than not that the damage suffered was caused by the negligence of the defendant. . . . [The relaxed causation approach] requires plaintiff to present evidence that a substantial or significant chance of survival or better recovery was lost. If plaintiff meets this initial threshold, the causation issue is submitted to the jury, using the traditional proximate cause standard to ascertain whether, in fact, the alleged malpractice resulted in the loss of a substantial or significant chance. Thus, the jury must find by a preponderance
The second or “proportional” approach encompasses a somewhat different focus on the issue of compensat
A number of courts and commentators have subscribed to Professor King’s approach.
There is a third or “traditional approach” to the doctrine of lost chance. Those courts, that apply this approach maintain that the better rule is to require that the plaintiff in a medical malpractice action comport with the standard of proof of proximate cause and prove that the defendant’s negligence, in probability, proximately caused the injury or death. What one court has
In following Cooper’s refusal to “derogate well-established and valuable proximate cause considerations”; id., 251; Gooding also concluded: “Relaxing the causation requirement might correct a perceived unfairness to some plaintiffs who could prove the possibility that the medical malpractice caused an injury but could not prove the probability of causation, but at the same time could create an injustice. Health care providers could find themselves defending cases simply because a patient fails to improve or where serious disease processes are not arrested because another course of action could possibly bring a better result. No other professional malpractice defendant carries this burden of liability without the requirement that plaintiffs prove the alleged negligence probably rather than possibly caused the injury. See e.g. Freeman v. Rubin, 318 So. 2d 540 [Fla. App. 1975] (plaintiff in legal malpractice action must show that, but for the attorney’s negligence, the plaintiff had a good cause of action in the underlying suit).” Gooding v. University Hospital Building, Inc., supra, 445 So. 2d 1019-20.
In LaBieniec, the plaintiff claimed “that the delay in diagnosis prevented the early removal of his lung or
LaBieniec recognized the existence of a cause of action for loss of chance
The recognition of the existence of this cause of action by LaBieniec is confirmed by its determination that the evidence adduced by the plaintiff was insufficient to prove entitlement to relief under that doctrine. In the case presently before us, the trial court’s action in refusing to charge the jury on the second count on the ground there was no such cause of action in Connecticut was harmful error.
Having determined that a cause of action for loss of chance does exist in Connecticut under LaBieniec, we now address the plaintiffs claim that, in effect, the trial court sua sponte “directed”
The defendant claims that the trial court correctly charged the jury in accordance with the case law of Connecticut as it applied to the evidence in this case and that it did not improperly refuse to charge in accordance with the plaintiffs request on loss of chance. In doing so, he argues that requests not applicable to the facts are properly refused and we agree with that as a general proposition. There are, however, no “facts” in a jury case, short of those admitted, until the jury establishes
The trial court, in its instructions, however, did not permit the trier of fact to consider any evidence as to the loss of chance claim alleged in the second count of the amended complaint. The trial court did not reach the issue of the sufficiency of the evidence on the loss of chance claim as did the trial court in LaBieniec. It is apparent that the trial court was aware of the plaintiffs claims
“Litigants have a constitutional right to have factual issues resolved by the jury.” Mather v. Griffin, 207 Conn. 125, 138, 540 A.2d 666 (1988); Seals v. Hickey, 186 Conn. 337, 350, 441 A.2d 604 (1982). “The corollary to this constitutional right is that if there is no issue of fact, there is no right to a jury trial.” Audubon Parking
II
The plaintiff next claims that the trial court improperly permitted the defendant to introduce evidence of contributory negligence when that doctrine was not pleaded.
In responding, the defendant claims that the trial court did not abuse its discretion in allowing evidence of the decedent’s conduct. He also maintains that the denial of the plaintiffs motion in limine, when originally made on June 28, 1994, is not claimed to be improper. In addition, the defendant claims that when the motion in limine was renewed on July 12, 1994, the court indicated that it would make rulings when questions, implicating any claimed contributory negligence, arose. It is his claim that the plaintiff, rather than following the court’s suggestion that it be done on a question by question basis, did not make such objections. Moreover, he claims that the circumstance that the decedent did not respond to the symptoms from which he was allegedly suffering was not indicative of contributory negligence but, rather, was directly relevant to the manner in which the telephone calls would have been handled by the defendant, assuming the calls were even made as alleged.
At the outset of our analysis, certain background circumstances must be pointed out. The defendant had not pleaded contributory negligence. Yet the plaintiff, as disclosed by her motion in limine, maintained that certain deposition testimony raised that issue. In initially denying the motion in limine, the court indicated, inter alia, that the motion, filed as it was prior to the presentation of evidence, did not realistically present a workable vehicle for a blanket ruling at that time. The court indicated that it believed that this motion was a poor substitute for appropriate objections to evidence offered on direct or cross-examination. When the plaintiff renewed this motion on July 12, 1994, the court indicated that the appropriate time to make an objection about a defense that is not in the case is by a request to charge and that if the state of evidence at the time
To the defendant’s argument that the plaintiff has not properly preserved the denial of her motion in limine for review, the plaintiff contends that it was not necessary for her to have continued to object at the trial to the “evidence of contributory negligence.” She insists that this is so because of her vigorous posture on the motion in limine itself at the trial. The plaintiff maintains that the claim was distinctly raised at trial and was, therefore, properly preserved. For that she cites West Haven Sound Development Corp. v. West Haven, 207 Conn. 308, 311 n.2, 541 A.2d 858 (1988). Although there appears to be some general authority for the plaintiffs position; see, e.g., id.; State v. Kluttz, 9 Conn. App. 686, 703 n.12, 521 A.2d 178 (1987); we cannot accept her claim here.
This case is factually distinguishable from West Haven Sound Development Corp. In support of the argument, she cites Practice Book § 4185,
It is helpful to refer to certain principles to structure our analysis of the respective positions of the parties. “The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise.” Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 557, 525 A.2d 954 (1987); Lundberg v. Kovacs, 172 Conn. 229, 232, 374 A.2d 201 (1977); Montano v. Kin-Therm, Inc., 4 Conn. App. 187, 190, 493 A.2d 266 (1985). The answer is the pleading that is the response by the defendant to the plaintiffs complaint, admitting, denying in whole or in part the allegations of the plaintiffs complaint and which may interpose affirmative matter. See Ballentine’s Law Dictionary (3d Ed. 1969). What is in issue is determined by the pleadings and,
“ ‘Relevant evidence is evidence which has a logical tendency to aid the trier of fact in the determination of an issue. Pitt v. Kent, 149 Conn. 351, 357, 179 A.2d 626 (1962).’ ” Allen v. Nissley, 184 Conn. 539, 545, 440 A.2d 231 (1981), quoting Berndston v. Annino, 177 Conn. 41, 43, 411 A.2d 36 (1979); see Plumb v. Curtis, 66 Conn. 154, 166, 33 A. 998 (1895). “No precise and universal test of relevancy is furnished by the law, and the question must be determined in each case according to the teachings of reason and judicial experience. ...” (Citations omitted; internal quotation marks omitted.) State v. Echols, 203 Conn. 385, 393, 524 A.2d 1143 (1987), quoting State v. Towles, 155 Conn. 516, 523, 235 A.2d 639 (1967). It has been said that “[o]ne fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable. . . .” (Citations omitted.) Allen v. Nissley, supra, 545, quoting Berndston v. Annino, supra, 43.
The trial court has broad discretion to determine both the relevance and remoteness of evidence and its rulings there will be set aside only on a showing of a clear abuse of discretion. Dunham v. Dunham, 204 Conn. 303, 324, 528 A.2d 1123 (1987); Hughes v. Contemporary Mission, Inc., 180 Conn. 150, 153, 429 A.2d 827 (1980); Metropolitan District v. Housing Authority, 12 Conn. App. 499, 508, 531 A.2d 194, cert. denied, 205 Conn. 814, 533 A.2d 568 (1987). “[A]ny fact may be proved which logically tends to aid the trier in the determination of the issue.” Litvaitis v. Litvaitis, 162
Once the issue is joined by the parties, the presentation of evidence involves not only that of the plaintiffs case but also that of the defendant. Both the plaintiff and the defendant fall within the well settled principle that a party cannot, however, “be deprived of the right to support his cause by the introduction of evidence tending to prove all facts upon which issue has been joined, provided it is relevant and not excluded by some rule of law. Moran v. New York, N. H & H. R. Co., 107 Conn. 454, 457, 140 A. 818 [1928].” Morico v. Cox, 134 Conn. 218, 225, 56 A.2d 522 (1947); Berndston v.
We are aware of the difficulty in balancing the probative value of evidence against its prejudicial effect and have recognized that the trial court has broad discretion in admitting evidence so that its rulings will not be disturbed absent a showing of a clear abuse of discretion. Chouinard v. Marjani, supra, 21 Conn. App. 575. The right of cross-examination; see Gordon v. Indusco Management Corp., 164 Conn. 262, 271, 320 A.2d 811 (1973); “does not . . . permit the defendant to present evidence that is irrelevant or otherwise inadmissible.” Jacobs v. Thomas, 26 Conn. App. 305, 317, 600 A.2d 1378 (1991), cert. denied, 221 Conn. 914, 603 A.2d 404 (1992). “[I]t is settled Connecticut law that inquiry upon cross-examination is limited by the scope of the direct examination . . . [but] that scope is determined by all of the evidence offered during direct examination” including an exhibit offered and received as a full exhibit. Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 525, 457 A.2d 656 (1983).
In applying these principles to the case before us, we first point out that the defendant’s answer to the amended complaint put in issue not only the allegations of his negligence but also whether the various telephone
After the final arguments of counsel in which contributory negligence was not argued to the jury, the court instructed the jury. In doing so, it not only directed that it was required to follow the law as the court articulated it, but also made it abundantly clear that its deliberations on liability involved the negligence and proximate cause as to the defendant only. Moreover, the verdict forms submitted to the jury contained nothing that asked the jury to assess any fault on the part of the plaintiffs decedent. The plaintiff, however, did file a request to charge on contributory negligence, which the trial court declined to give. We agree with the trial court.
The plaintiff claims that the trial judge “apparently agreed” with her counsel early in the trial that a curative instruction would be needed on the issue of contributory negligence. This was at the time of the hearing of the plaintiffs motion in limine.
“To be acceptable, a request to charge must be relevant to the evidence and issues presented in court.” State v. Timmons, 7 Conn. App. 457, 467, 509 A.2d 64 (1986), appeal dismissed, 204 Conn. 120, 526 A.2d 1340 (1987) (certification improvidently granted). “It is the law of this state that a request to charge which is relevant to the issues of a case and which is an accurate statement of the law must be given.” Mazzucco v. Krall Coal & Oil Co., 172 Conn. 355, 357, 374 A.2d 1047 (1977). The plaintiffs request did not meet these tests.
The judgment is reversed as to the second count of the amended complaint and the case is remanded for a new trial on that count.
In this opinion the other judges concurred.
General Statutes § 52-555, entitled “Actions for injuries resulting in death,” provides in relevant part: “In any action surviving to or brought by an executor or administrator for injuries resulting in death, whether instantaneous or otherwise, such executor or administrator may recover from the party legally at fault for such injuries just damages together with the cost of reasonably necessary medical, hospital and nursing services, and including funeral expenses . . .
The plaintiff has stated in her brief that “[t]he third count is not relevant to this appeal.” Accordingly, we do not discuss it.
The “agents or employees” of the defendant referred to certain persons employed by him in his office, specifically those who handled telephone calls to his office.
The amended complaint, which contained three counts, was not sent into the jury room. The trial court, during its instructions to the jury, reviewed the allegations of the first and third counts. In doing so, it did not make reference to counts. During jury deliberations the jury sent out a note asking, “If we are allowed, is it possible to receive the complaint?” The trial judge told the jury that it was his practice, and of most judges, to read the complaint to them as he had done and not to send it into the jury room. He then proceeded to read the allegations of the amended complaint, essentially as he had done earlier.
The verdict that the jury returned, which was dated and signed by the foreperson, was, in relevant part, the following: “In this case, the jury finds the issues for the Defendant, Chandra K Sacheti, M.D., as against the plaintiff, Marcella Borkowski, individually, and as Administratrix of the Estate of Anthony Borkowski.”
It was seriously disputed at the trial whether the decedent called the defendant’s office and spoke to one of the defendant’s employees on Monday, October 19, 1987, or on Wednesday, October 21, 1987. The plaintiff does not make any claim that the decedent spoke to the defendant on either of those dates.
In setting out the foundation of his article, Professor King stated: “It is the thesis of this article that the loss of a chance of achieving a favorable outcome or of avoiding an adverse consequence should be compensable and should be valued appropriately, rather than treated as an all-or-nothing proposition. Preexisting conditions must, of course, be taken into account in valuing the interest destroyed. When those preexisting conditions have not absolutely preordained an adverse outcome, however, the chance of avoiding it should be appropriately compensated even if that chance is not better than even.” J. King, supra, 90 Yale L.J. 1354.
We use this formulation of approaches, recognizing that in doing so, where other courts stand on this matter is not always totally clear. We agree with the Maryland Court of Appeals, which said, “Loss of chance medical malpractice actions have been recognized in several other jurisdictions, but the cases do not always clearly state the basis for recognizing the cause of action. A number of jurisdictions have adopted the loss of chance doctrine, while others have not clearly resolved whether to recognize the doctrine. Still other jurisdictions have refused to recognize the loss of chance doctrine.” Fennell v. Southern Maryland Hospital Center, Inc., 320 Md. 776, 781-82, 580 A.2d 206 (1990).
Some of these courts include: McBride v. United States, 462 F.2d 72 (9th Cir. 1972); Jeanes v. Milner, 428 F.2d 598 (8th Cir. 1970); Thompson v. Sun City Community Hospital, Inc., 141 Ariz. 597, 688 P.2d 605 (1984); Blackmon v. Langley, 293 Ark. 286, 737 S.W.2d 455 (1987); Perez v. Las Vegas Medical Center, 107 Nev. 1, 805 P.2d 589 (1991); Hamil v. Bashline, 481 Pa. 256, 392 A.2d 1280 (1978); Thornton v. Charlestown Area Medical Center, 172 W. Va. 360, 305 S.E.2d 316 (1983).
For this proposition, King cites Grody v. Tulin, 170 Conn. 443, 450-51, 365 A.2d 1076 (1976) (must appear reasonably probable that but for alleged failure to perform timely surgery, patient’s life would have been prolonged). J. King, supra, 90 Yale L.J. 1374 n.71.
This suggests the elusiveness of labels such as “loss of chance” in a case where there is evidence of a better than even chance.
For some courts supporting his pure loss of chance approach, see, e.g., DeBurkarte v. Louvar, 393 N.W.2d 131, 137 (Iowa 1986); Falcon v. Memorial Hospital, 436 Mich. 443, 470, 462 N.W.2d 44 (1990); Perez v. Las Vegas Medical Center, supra, 107 Nev. 1.
Roberson v. Counselman, 235 Kan. 1006, 1018, 686 P.2d 149 (1984).
In Cooper v. Sisters of Charity of Cincinnati, Inc., supra, 27 Ohio St. 2d 253, the Ohio Supreme Court stated: “Probability is most often defined as that which is more likely, than not. . . .Maybe. . . around 50 [percent], in our judgment does not provide a basis from which probability can reasonably be inferred. The use of the words, ‘maybe’ and ‘around,’ does not connote that there is probability; those words, in context used, could mean either more than 50 [percent], or less than 50 [percent]. Probable is more than 50 [percent] of actual.” (Citations omitted; internal quotation marks omitted.)
Some other courts supporting the traditional approach of reasonable medical probability standard are: Murdoch v. Thomas, 404 So. 2d 580, 582 (Ala. 1981); Dumas v. Cooney, 235 Cal. App. 3d 1593, 1 Cal. Rptr. 2d 584 (1991); Hilden v. Ball, 117 Idaho 314, 316 n.2, 787 P.2d 1122 (1989); Fennell v. Southern Maryland Hospital Center, Inc., 320 Md. 776, 786, 580 A.2d 206
Barbara N. LaBieniec, wife of tire named plaintiff, was named executrix of his estate after his death and was substituted as a party plaintiff. LaBieniec v. Baker, supra, 11 Conn. App. 199.
The amended complaint contained only one count. The defendants did not file any special defense to it.
In LaBieniec, our opinion pointed out that “[t]he basic issues in this appeal are whether the trial court [improperly concluded (1)] that expert medical testimony was required in order for the jury to consider the plaint iff s claim of emotional distress and (2) [found] insufficient evidence to allow the case to go to the jury.” LaBieniec v. Baker, supra, 11 Conn. App. 201. Our resolution of this latter claim at that time need not be addressed in this case.
We employ loss of chance, as do other courts, to include “decreased chance,” be it of successful treatment or survival itself. It is necessary not to step into a quagmire of semantics when discussing the name of this doctrine. For example, Cooper v. Sisters of Charity of Cincinnati, Inc., supra, 27 Ohio St. 2d 242, is often said to have “rejected” the “loss of chance” doctrine. It is far more correct analytically to say of Cooper and its progeny that it is required that a plaintiff claiming recovery on loss of chance, while he may recover under that doctrine, must prove his entitlement to do so by the traditional approach of reasonable medical probability.
Lest the term “chance” in the phrase “loss of chance” always be considered to mean something speculative or less than reasonable probability, one is reminded of Judge Learned Hand’s dictum that “words are chameleons which reflect the color of their environment.” Commissioner of Internal Revenue v. National Carbide Corp., 167 F.2d 304, 306 (2d Cir. 1948). Our Supreme Court, in Petriello v. Kalman, 215 Conn. 377, 393, 576 A.2d 474 (1990), referred to the “prevailing all or nothing” standard in terms of “a 51 percent chance” as opposed to “a 49 percent chance.” (Emphasis added.)
Both the plaintiff and the defendant filed requests to charge on loss of chance, with each request stating the law as to what the plaintiff had to prove to recover as this court did in LaBieniec. See LaBieniec v. Baker, supra, 11 Conn. App. 207.
There was no motion made by counsel for the defendant for a directed verdict as to the second count.
The plaintiffs request to charge stated the following: “The plaintiff has also claimed that he was harmed in that his chances for survival were decreased by [the defendant’s] negligence. To prevail on this claim, the plaintiff must show 1) that he has been deprived of a chance for successful treatment and 2) that the decreased chance for successful treatment more likely than not resulted from the defendant’s negligence. LaBieniec v. Baker, [supra, 11 Conn. App. 207], citing Gooding v. University Hospital Building, Inc., [supra, 445 So. 2d 1020], In this case the plaintiff claims that if [the defendant] or his employees had not been negligent he had a chance to avoid or survive the heart attack he suffered in 1987. In contrast, the defendant claims that [the decedent] would have suffered his heart attack no matter what was done and [the decedent’s] chances of survival were no better or worse as a result of anything that the defendant did, or could have done.”
The defendant’s request to charge stated the following: “The plaintiff is claiming that as a result of the defendant’s alleged malpractice, he lost a chance of successful treatment. To prevail on this claim, the plaintiff must show (1) that [the decedent] had, in fact, been deprived of a chance for successful treatment, and (2) that the decreased chance for successful treatment, more likely than not, resulted from the defendant’s negligence. LaBieniec v. Baker, [supra, 11 Conn. App. 207], In other words, the plaintiff must show that what was done or what was not done probably would have affected the outcome. The loss of a speculative chance of recovery alone, however, is not an injury from which damages flow. Id , 208. Therefore, the plaintiff cannot be awarded damages for lost chance of successful treatment unless the plaintiff proves that the defendant’s negligence, in all probability, proximately caused the injury.”
To that argument, at the time the plaintiff took her exceptions, the trial court said: “Well, I indicated in chambers, especially this morning, that I’m relying on a trilogy of cases, Green v. Stone [119 Conn. 300, 176 A. 123 (1934)], Connellan v. Coffey, [122 Conn. 136, 187 A. 901 (1936]), and principally the Tulin case [Grody v. Tulin, 170 Conn. 443, 365 A.2d 1076 (1976)].”
The defendant suggests that because the plaintiff did not except to the court’s charge on proximate cause and that he claims no error on appeal as to that charge that that somehow avails the defendant. We do not agree. Such a suggestion might have weight had it been also given in the context of an instruction on loss of chance as both LaBieniec and the defendant’s request to charge spell out.
This, of course, is not to say that the trial court, under proper circumstances, may not appropriately grant a motion for a directed verdict on that count. No such motion, however, was ever made in this case.
In addressing this claim, we also include our discussion of the plaintiffs related claim that the trial court improperly “refus[ed] to charge the jury that the decedent exercised reasonable care in attending to his health needs.”
The plaintiffs motion in limine stated the following: “The Plaintiffs respectfully request the Court to invoke its inherent discretionary powers, in limine, to exclude certain irrelevant, immaterial, and prejudicial evidence from this case. The Court has the discretionary authority to control proceed
“In various depositions in this case witnesses have been asked by counsel about [the decedent’s] compliance with medical advice. In particular, evidence has been produced that [the decedent] may have missed an appointment with the Defendant four months before his fatal heart attack, and that [the decedent] may have been reluctant to undergo a cardiac catheterization procedure. No evidence has been elicited that either of these alleged facts had anything to do with [the decedent’s] death. The Defendant’s expert witness, Dr. Barry Zaret, testified at his deposition that [the decedent’s] missed appointment in June 1987 was absolutely irrelevant and did not enter into his formulation of an opinion in this case. Dr. Zaret further testified that the absence of surgeiy played no role in the formulation of his opinion. . . . The alleged facts are, therefore, irrelevant and immaterial and would be prejudicial to the Plaintiffs.
“If contributory negligence is claimed, it must be pleaded. Connecticut General Statutes § 52-114; Delott v. Roraback, 179 Conn. 406, 414 [426 A.2d 791] (1980). The Defendant has not pleaded contributory negligence. In the absence of such a plea, it is presumed that [the decedent] exercised reasonable care in relation to his own health. Connecticut General Statutes § 52-114; Sady v. Liberty Mutual Ins. Co., [29 Conn. App. 552, 616 A.2d 819 (1992)].
“The Defendant’s only use for evidence of [the decedent’s] missed appointment or reluctance to undergo cardiac catheterization, is to improperly inject into this case the issue of whether [the decedent] acted reasonably in attending to his own health. [The decedent’s] reasonableness is not an issue in this case and introducing evidence on that issue is immaterial, irrelevant and prejudicial.”
During this same colloquy about contributory negligence the trial court also said: “Do you want me to charge mitigation of damages out of the case, or comparative negligence, I will expressly charge it out of the case if it has not been pleaded or it has not been proved.”
The plaintiff on appeal argues that the trial court did not do what it said that it would do. Here, we would point out that the trial court did not charge on comparative negligence and that the verdict forms submitted to the jury, which it is fair to assume were inspected by counsel, did not contain any provision for contributory or comparative negligence of the plaintiff.
Practice Book § 4185 entitled “Errors Considered” provides: “The court on appeal shall not be bound to consider a claim unless it was distinctly raised at the trial or arose subsequent to the trial. The court may in the interests of justice notice plain error not brought to the attention of the trial court.
“In jury trials, where there is a motion, argument, or offer of proof or evidence in the absence of the jury, whether during trial or before, pertaining to an issue that later arises in the presence of the jury, and counsel has fully complied with the requirements for preserving any objection or exception to the judge’s adverse ruling thereon in the absence of the jury, the matter shall be deemed to be distinctly raised at the trial for purposes of this rule
These office records of the defendant, after setting the defendant’s medical notes of the decedent’s April 30, 1987 visit, contain the notation, “R-3 months.” This notation, based not only on this exhibit but also on the testimony at the trial fairly means that his next appointment with the defendant was June 24, 1987.
On direct examination the defendant testified, without objection, that his last prescription for the decedent’s heart medication was given in March, 1987, for a three month supply and that he had no record of a call from the decedent thereafter for a refill. Very shortly thereafter, the defendant was again asked if he had any indication that the decedent contacted his office “and asked your office to refill his cardiac medication.” At this point, the plaintiffs counsel said, “Your Honor, objection. Again it’s leading, but I think [defendant’s counsel] asked it about three questions ago and I think he answered.” The court sustained the objection.
One authority has aptly noted in citing Batick v. Seymour, supra, 186 Conn. 637, that, “in that case, the Supreme Court . . . suggested that the standard for admitting evidence that is claimed to be prejudicial should be lower in a civil case than in a criminal case, where the stakes are higher.” (Internal quotation marks omitted.) C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 8.1.3, p. 228.
The trial of this case encompassed about five weeks.
The significance and the scope of the alleged telephone calls to the defendant’s office during the week of October 19, 1987, is acknowledged by the plaintiff, when in her motion to set aside the verdict she states: “The essence of all of the plaintiffs claims was that the defendant doctor negligently responded, or failed to respond, to [the decedent’s] telephone calls.”
The plaintiffs brief recites the following: “The judge told trial counsel early in the trial that the appropriate time to object to a defense which is not in the case is by a request to charge. The judge said ‘Do you want me to charge mitigation of damages out of the case, or comparative negligence,
The transcript discloses that the trial court said: “One of the problems I have with motions in limine is they’re based upon assumptions as to what evidence will be presented. And, by and large, to a certain extent, it can be anticipated. But the appropriate time to malee that type of objection about a defense which is not in the case, or something by way of mitigation of damages is not in the case, is by request to charge. And if the state of the evidence, at the time I get that request, is such as to justify it, you’ll get it. Do you want me to charge mitigation of damages out of the case, or comparative negligence, I will expressly charge it out of the case, if it has not been pleaded or it has not been proved. Do you understand me?”
In the same colloquy, the trial court said: “I don’t think this is an appropriate matter for a motion in limine. We’ll have to do it on a question by question basis.”
Almost immediately thereafter, the court denied the motion in limine.
This case was not referred to by name by the trial court. The plaintiffs counsel, however, said that he was familiar with that case.