BRUCE COCKAYNE ET AL. v. THE BRISTOL HOSPITAL INCORPORATED ET AL.
(AC 44241)
Connecticut Appellate Court
Argued May 24, 2021—officially released February 8, 2022
Prescott, Alexander and Bishop, Js.
Action to recover damages for medical malpractice, and for other relief, brought to the Superior Court in the judicial district of New Britain, where the matter was tried to the jury before Morgan, J.; verdict for the plaintiffs; thereafter, the court, Morgan, J., denied the defendants’ motions for judgment notwithstanding the verdict and to set aside the verdict and rendered judgment in accordance with the verdict, from which the defendants appealed to this court. Affirmed.
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Syllabus
The plaintiffs, B and his wife, sought to recover damages from the defendant hospital for, inter alia, injuries B allegedly sustained while he was receiving treatment from the defendant‘s employees. Over a three day period, two of the defendant‘s nurses, K and L, administered medication to B rectally via enema a total of three times. On the day following the final administration, a physician discovered that B‘s rectum had been perforated. As a result, B developed a necrotizing infection and sepsis, his health deteriorated, and he required multiple medical procedures. At trial, after the plaintiffs had rested, the defendant moved for a directed verdict, claiming that the plaintiffs had failed to present an evidentiary basis as to when the perforation occurred, which of the defendant‘s employees had breached the applicable standard of care, and whether the tip of the enema was capable of causing the perforation. The trial court reserved its decision on the motion and permitted the issues to be submitted to the jury. The jury returned a verdict in favor of the plaintiffs and the defendant filed motions for judgment notwithstanding the verdict and to set aside the verdict. The trial court denied both motions and the defendant appealed to this court. Held:
- The trial court properly denied the defendant‘s motion for judgment notwithstanding the verdict: this court, determining that the issue was subject to plenary review because the question of whether the evidence was sufficient to withstand the motion was one of law, concluded that the plaintiffs had met their burden of producing sufficient evidence for the jury to find that the enema was physically capable of causing the perforation, as an expert testified regarding the average length of the anal canal and the length of the tip of the enema, stating that it could reach into the rectum and that it was possible for the tip to go through the rectum and cause the perforation suffered by B; moreover, the defendant did not provide any authority for its assertion that the plaintiffs needed to provide specific evidence regarding B‘s actual anatomical measurements, and the experts were not required to disprove all other possible explanations for the injury but only needed to show that their opinions were based on reasonable probabilities; furthermore, the use of a differential diagnosis was proper and sufficient to establish the plaintiffs’ theory of causation, namely, that the defendant‘s employees caused the perforation suffered by B, as the jury heard evidence that there was no perforation of B‘s rectum prior to his hospitalization, that the most likely cause of the perforation was the insertion of a foreign object, and that, although there were four possible causation events, an expert witness used differential diagnosis to eliminate three of the potential causes and opined that, to a reasonable degree of medical probability, an enema administered during B‘s hospitalization caused the perforation, and this court and our Supreme Court have indicated that a causal relationship between an injury and its later physical effects may be established by a physician‘s deduction through the process of eliminating other causes.
- The trial court properly denied the motion to set aside the verdict, as the defendant could not prevail on its claim that the jury improperly was permitted to consider a theory of negligence unsupported by the evidence: the plaintiffs presented sufficient expert evidence for the jury to find that L caused the perforation of B‘s rectum, as L administered an enema during the time frame in which the perforation likely occurred, an expert physician testified that the perforation was caused by the administration of an enema with excessive force and indicated that one of the nurses had caused it, and a registered nurse, one of the plaintiffs’ experts, testified that K or L had used improper technique in administering the enemas and indicated that L had caused the perforation, although she later clarified her statement to indicate that she could not determine which individual nurse bore sole responsibility for causing the perforation.
Procedural History
Action to recover damages for medical malpractice, and for other relief, brought to the Superior Court in the judicial district of New Britain, where the matter was tried to the jury before Morgan, J.; verdict for the plaintiffs; thereafter, the court, Morgan, J., denied the defendants’ motions for judgment notwithstanding the verdict and to set aside the verdict and rendered judgment in accordance with the verdict, from which the defendants appealed to this court. Affirmed.
Tadhg Dooley, with whom were Jeffrey R. Babbin and,
Jack G. Steigelfest, with whom were Thomas P. Cella and, on the brief, Brian D. Danforth, for the appellees (plaintiffs).
Opinion
ALEXANDER, J. The dispositive issue in this appeal is whether the plaintiffs, Bruce Cockayne and Marion Cockayne, presented sufficient evidence in support of their claim of medical malpractice by employees of the defendant The Bristol Hospital Incorporated.1 Following the jury‘s verdict in favor of the plaintiffs, the defendant moved for judgment notwithstanding the verdict and to set aside the verdict. The trial court denied these motions and rendered judgment in accordance with the jury‘s verdict. On appeal, the defendant claims that the court improperly denied (1) its motion for judgment notwithstanding the verdict and (2) its motion to set aside the verdict and order a new trial. We disagree and, accordingly, affirm the judgment of the trial court.
The following allegations from the plaintiffs’ complaint underlie this appeal. Count one of the complaint alleged that Bruce Cockayne was admitted to the defendant on February 11, 2014, and, during this admission, he received treatments of a medication administered rectally via enema. During one or more of these treatments, his rectum was perforated. The plaintiffs alleged that this perforation was proximately caused by the carelessness and negligence of the defendant‘s agents, servants, or employees.2 Further, the plaintiffs claimed that, due to this carelessness and negligence, Bruce Cockayne had to undergo numerous surgeries, procedures, diagnostic tests, therapies, and the administration of medications. These medical treatments caused him to suffer extreme physical and mental pain and suffering, to incur medical expenses and to have his ability to enjoy life‘s pleasures curtailed and diminished. Count two of the
Following the presentation of the evidence, the jury reasonably could have found the following facts. In January, 2014, Bruce Cockayne experienced symptoms of diarrhea and vomiting. At that time, he was admitted to the defendant for treatment consisting of bedrest, medication, and a colonoscopy. At this time, his rectum was described as “largely intact . . . .” Bruce Cockayne was discharged from the defendant on February 3, 2014. He was prescribed Rowasa enemas to be administered at home.4 Marion Cockayne attempted to administer this type of enema to her husband but was unsuccessful due to his irritation and pain. During the time period of February 2 through 10, 2014, no foreign body was inserted into Bruce Cockayne‘s rectum.
On February 11, 2014, Bruce Cockayne was readmitted to the defendant after fainting, likely due to continued diarrhea and the resulting loss of fluids. At approximately 9:45 p.m. on February 11, 2014, and approximately 8 p.m. on February 12, 2014, Jordan Kaine, a nurse employed by the defendant, administered a Rowasa enema to Bruce Cockayne in the course of her employment duties. At approximately 8 p.m. on February 13, 2014, Elaine Medina Lapaan, a nurse employed by the defendant, administered a Rowasa enema to Bruce Cockayne in the course of her employment duties.5
On the morning of February 14, 2014, Bruce Cockayne suffered a “massive rectal bleed” and was transferred to the intensive care unit. An embolization procedure successfully stopped the bleeding. Following a CT scan, Rainer Bagdasarian, a physician, operated on Bruce Cockayne and performed, inter alia, an endoscopy. During this procedure, Bagdasarian determined that an internal hemorrhoid located on the left lateral anal canal caused the bleeding.6 Bagdasarian also discovered that, just past the end of the anal canal and distinct from the internal hemorrhoid, “there was a large, two centimeter, older appearing perforation in the posterior right rectum . . . .” Bagdasarian performed an ileostomy to divert feces away from the perforation and to prevent it from spilling into the perineum, the space outside of the rectum.7 Despite this effort, Bruce Cockayne
On July 29, 2016, the plaintiffs commenced the present action against the defendant. Specifically, they claimed that the defendant was vicariously liable9 for the negligence of its employees who perforated Bruce Cockayne‘s rectum during the course of an enema administration. The complaint also set forth Marion Cockayne‘s derivative claim for loss of consortium. A trial was conducted over several days in January, 2020. After the plaintiffs rested, the defendant moved for a directed verdict, claiming that the plaintiffs had failed to present an evidentiary basis (1) as to when the perforation of the rectum had occurred and, therefore, which of the defendant‘s employees, Lapaan or Kaine, had breached the applicable standard of care and (2) to support their claim that the tip of the Rowasa enema was long enough to cause the perforation. The court reserved its decision on the defendant‘s motion for a directed verdict and permitted the issues to be submitted to the jury.10
On January 24, 2020, the jury returned a verdict in favor of the plaintiffs. As to the medical malpractice claim alleged in count one of the complaint, the jury awarded Bruce Cockayne $382,732.21 in past economic damages and $2,105,027.16 in noneconomic damages. As to the loss of consortium claim alleged in count two of the complaint, the jury awarded Marion Cockayne $720,000.
On March 2, 2020, and in accordance with its prior motion for a directed verdict, the defendant filed a motion for judgment notwithstanding the verdict pursu-ant to Practice Book §§ 16-35 and 16-37. That same day, the defendant also filed a motion to set aside the verdict and sought a new trial pursuant to Practice Book § 16-35. In two memoranda of decisions dated
I
The defendant first claims that the court improperly denied its motion for judgment notwithstanding the verdict. It contends that the plaintiffs presented insufficient evidence that either Kaine or Lapaan, the nurses employed by the defendant, negligently caused the perforation in Bruce Cockayne‘s rectum. Specifically, the defendant argues that the evidence, viewed in the light most favorable to the plaintiffs, failed to prove that (1) the Rowasa enema physically could have caused the perforation in the posterior of the rectum and (2) the defendant‘s employees negligently administered the enema. The plaintiffs counter that they presented sufficient evidence for the jury to find that the Rowasa enema perforated the rectum and that the perforation was caused by the negligence of one of the nurses in administering the enemas. We agree with the plaintiffs.
As a preliminary matter, we address the applicable standard of review. The parties do not agree on the standard of review with respect to the issues raised in this appeal. The plaintiffs argue that the abuse of discretion standard applies while the defendant contends that our review is de novo. We acknowledge that numerous cases from our appellate courts have referred to the abuse of discretion standard in the context of reviewing the decision of the trial court regarding a motion for judgment notwithstanding the verdict or a motion to set aside the verdict. See, e.g., Landmark Investment Group, LLC v. CALCO Construction & Development Co., 318 Conn. 847, 862–63, 124 A.3d 847 (2015); Ulbrich v. Groth, 310 Conn. 375, 437, 78 A.3d 76 (2013); Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 178, 646 A.2d 195 (1994); Lappostato v. Terk, 143 Conn. App. 384, 408–409, 71 A.3d 552, cert. denied, 310 Conn. 911, 76 A.3d 627 (2013); Macchietto v. Keggi, 103 Conn. App. 769, 777, 930 A.2d 817, cert. denied, 284 Conn. 934, 935 A.2d 151 (2007). Nevertheless, we disagree with the plaintiffs that the abuse of discretion standard applies to the defendant‘s claims.
In the present case, the defendant has challenged the sufficiency of the evidence to support the jury‘s verdict in its motions for judgment notwithstanding the verdict and to set aside the verdict.11 The standard for appellate review of the denial of a motion for judgment notwithstanding the verdict is well settled and mirrors the standard applicable to a motion for a directed verdict. “Directed verdicts are not favored. . . . A trial court should direct a verdict only when a jury could not reasonably and legally have reached any other conclusion. . . . In reviewing the trial court‘s decision [to deny the defendant‘s motion for a directed verdict] we must consider the evidence in the light most favorable to the plaintiff. . . . Although it is the jury‘s right to draw logical deductions and make reasonable inferences from the
Our Supreme Court has applied the plenary standard of review when reviewing the propriety of a trial court‘s ruling on a motion for directed verdict based on a claim of insufficient evidence. In Curran v. Kroll, 303 Conn. 845, 855, 37 A.3d 700 (2012), the trial court granted the defendants’ motion for a directed verdict on the basis that the plaintiff failed to present any evidence of a breach of the standard of care in a medical malpractice action. This court reversed the decision of the trial court, concluding that “the evidence presented by the plaintiff at trial would support a reasonable inference that [the defendant physician] had failed to warn the decedent adequately of the signs and symptoms associated with the risks of taking birth control pills.” Id. The defendant then appealed to our Supreme Court. Id.
In affirming the decision of this court, our Supreme Court noted the following with respect to the standard of review used in its analysis: “Whether the evidence presented by the plaintiff was sufficient to withstand a motion for a directed verdict is a question of law, over which our review is plenary.” Id.; see MacDermid, Inc. v. Leonetti, 328 Conn. 726, 744, 183 A.3d 611 (2018) (“[w]hether the evidence presented by the plaintiff is sufficient to withstand a motion for a directed verdict is a question of law” subject to plenary review, and ” ‘[a] directed verdict is justified [only] if . . . the evidence is so weak that it would be proper . . . to set aside a verdict rendered for the other party’ “); see also Farrell v. Johnson & Johnson, 335 Conn. 398, 416–17, 238 A.3d 698 (2020); Pellet v. Keller Williams Realty Corp., 177 Conn. App. 42, 50, 172 A.3d 283 (2017). We conclude, therefore, that the proper appellate standard in the present case is plenary review.
We also note that “[t]wo further fundamental points bear emphasis. First, the plaintiff in a civil matter is not required to prove his case beyond a reasonable doubt; a mere preponderance of the evidence is sufficient. Second, the well established standards compelling great deference to the historical function of the jury find their roots in the constitutional right to a trial by jury.” (Internal quotation marks omitted.) Procaccini v. Lawrence + Memorial Hospital, Inc., supra, 175 Conn. App. 716; see also Millette v. Connecticut Post Ltd. Partnership, 143 Conn. App. 62, 68, 70 A.3d 126 (2013). Indeed, our Supreme Court has recognized that circumstantial evidence, coupled with the reasonable inferences drawn therefrom, can support a finding of causation in a medical malpractice action. Console v. Nickou, 156 Conn. 268, 274–75, 240 A.2d 895 (1968). “The test of the sufficiency of proof by circumstantial evidence is whether rational minds could reasonably and logically draw the inference. . . . The proof need not be so conclusive that it precludes every other hypothesis. It is sufficient if the proof produces in the mind of the trier a reasonable belief that it is more probable than otherwise
Next, it is instructive to review the relevant legal principles pertaining to claims of medical malpractice. “[T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury. . . . Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard. . . . Likewise, [e]xpert medical opinion evidence is usually required to show the cause of an injury or disease because the medical effect on the human system of the infliction of injuries is generally not within the sphere of the common knowledge of the lay person.” (Citations omitted; internal quotation marks omitted.) Procaccini v. Lawrence + Memorial Hospital, Inc., supra, 175 Conn. App. 717–18; see also Rosa v. Lawrence & Memorial Hospital, 145 Conn. App. 275, 303, 74 A.3d 534 (2013); Hammer v. Mount Sinai Hospital, 25 Conn. App. 702, 717–18, 596 A.2d 1318, cert. denied, 220 Conn. 933, 599 A.2d 384 (1991).12 We remain mindful, however, that the mere fact that an injury followed a medical procedure is insufficient to establish negligence. Mozzer v. Bush, 11 Conn. App. 434, 438 n.4, 527 A.2d 727 (1987); see also Krause v. Bridgeport Hospital, 169 Conn. 1, 8, 362 A.2d 802 (1975).
The defendant‘s appeal focuses on causation. “All medical malpractice claims, whether involving acts or inactions of a defendant . . . require that a [defendant‘s] . . . conduct proximately cause the plaintiff‘s injuries. The question is whether the conduct of the defendant was a substantial factor in causing the plaintiff‘s injury. . . . This causal connection must rest upon more than surmise or conjecture. . . . A trier is not concerned with possibilities but with reasonable probabilities. . . . The causal relation between an injury and its later physical effects may be established by the direct opinion of a physician, by his deduction by the process of eliminating other causes other than the traumatic agency, or by his opinion based upon a hypothetical question. . . .
“[I]t is the plaintiff who bears the burden to prove an unbroken sequence of events that tied his injuries to the [defendant‘s conduct]. . . . A plaintiff, however, is not required to disprove all other possible explanations for the accident but, rather, must demonstrate that it is more likely than not that the defendant‘s negligence was the cause of the accident.” (Citations omitted; emphasis altered; internal quotation marks omitted.) Procaccini v. Lawrence + Memorial Hospital, Inc., supra, 175 Conn. App. 718–19; see also Sargis v. Donahue, 142 Conn. App. 505, 513, 65 A.3d 20, cert. denied, 309 Conn. 914, 70 A.3d 38 (2013).
To determine whether the plaintiff has carried his or her burden with respect to causation, “an expert opinion need not walk us through the precise language of causation . . . . To be reasonably probable, a conclusion must be more likely than not. . . . Whether an expert‘s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert‘s
Lapaan‘s deposition testimony was read to the jury during the trial. Her full-time employment with the defendant commenced in November, 2012. During Bruce Cockayne‘s hospital admission in February, 2014, Lapaan was his “primary nurse.” He was the only patient to whom she had ever administered a Rowasa enema, and this occurred at approximately 8:15 p.m. on February 13, 2014. Lapaan described the Rowasa enema as having a shorter tip than other types of enemas and noted that rectal perforation was a concern. She further stated that if the tip of the Rowasa enema was manipulated excessively, it potentially could cause damage.
Kaine testified that she began her employment with the defendant in August, 2013, following her graduation from nursing school. She administered her first unsupervised enema at approximately 9:45 p.m. on February 11, 2014, to Bruce Cockayne and her second at approximately 8 p.m. the next day. Kaine explained that the proper administration of a Rowasa enema required her to position the patient on his left side and bring the knees up to the chest. She would then guide the tip of the enema into the anus and anal canal, directing it toward the belly button of the patient. Kaine agreed that misdirecting the tip of the enema, or an excessive use of force, would constitute a violation of the standard of care.14
On the third day of the trial, the plaintiffs presented expert testimony from Mark Korsten, a physician board certified in internal medicine and gastroenterology.16 Korsten stated that, as a part of his duties, he trained physicians in the proper administration of enemas and that this procedure or technique would apply to both physicians and nurses. He explained that if the patient has a hemorrhoid or tender skin, then a more cautious approach is warranted. Korsten noted that, if the inserted object comes into contact with the hemorrhoid, the patient may “strain” and alter the anatomy of the rectum, making the procedure “more difficult and maybe more dangerous.” Korsten also testified that he located two medical articles that recognized the possibility of rectal perforation resulting from an enema.17
Korsten reviewed Bruce Cockayne‘s medical records from the defendant and Hartford Hospital, as well as various deposition testimony. He described the perforation as a “significant tear” located not very far into the rectum, just past the terminus of the anal canal. Korsten stated that the insertion of a foreign body constituted the most common cause of a rectal tear. He opined, to a reasonable degree of medical probability, that the tip of an enema caused the perforation.18 He had seen this injury only when there had been a
Korsten agreed with the defendant‘s counsel that the tip of a Rowasa enema measured 1.75 inches. He further testified during cross-examination that the length of the anal canal ranges between 3 centimeters and approximately 5.3 centimeters and that there is approximately 2.5 centimeters per inch. He explained, therefore, that the length of the Rowasa enema, approximately 1.75 inches, could reach beyond the anal canal to the location of the perforation in Bruce Cockayne‘s rectum.21
During redirect examination, Korsten discussed the summary prepared when Bruce Cockayne was transferred from the defendant to Hartford Hospital. The physician who prepared that document opined that the perforation was caused by “aggressive enema” use. Korsten explained that this notation referred to excessive force employed in the administration of the enemas. He iterated that misdirection, excessive force, or some combination of the two, caused the perforation and constituted a violation of the standard of care.
The plaintiffs also presented expert testimony from Natalie Mohammed, a registered nurse, who had reviewed the medical records and certain deposition testimony. She testified that, assuming that the perforation had occurred on February 11, 12 or 13, 2014, and that the perforation resulted from improper positioning and/or excessive force during the administration of a Rowasa enema, it was her opinion, to a reasonable degree of medical probability, that there was a deviation from the standard of care. In providing this testimony, she expressly relied on Korsten‘s testimony regarding the issue of causation.
After the plaintiffs had rested, the defendant moved for a directed verdict. Specifically, the defendant‘s counsel argued that the jury lacked an evidentiary basis to determine (1) whether the Rowasa enema was long enough to cause the perforation and (2) when the perforation occurred and, therefore, which nurse, Lapaan or Kaine, breached the standard of care. After hearing further argument from both parties, the court reserved its decision on the defendant‘s motion for a directed verdict. The jury subsequently returned a verdict in favor of the plaintiffs.
On March 2, 2020, the defendant filed a motion for judgment notwithstanding the verdict. It argued that “the only expert
On August 25, 2020, the court issued a memorandum of decision denying the defendant‘s motion for judgment notwithstanding the verdict. The court noted that Korsten‘s testimony established causation by ruling out other possible causes of the injury, such as a spontaneous perforation due to Crohn‘s disease or perforation from the colonoscopy or from the enema administered by Marion Cockayne. The court further relied on Korsten‘s testimony concerning the improper administration of the enemas, that either misdirection or excessive force, or a combination thereof, caused the perforation. Finally, the court concluded that the medical records, diagrams and other demonstrative evidence provided a sufficient basis for the jury to conclude that the Rowasa enema was of a sufficient length to have caused the injury in this case. “Viewing all of the evidence presented at trial, the court does not find that the verdicts were manifestly unjust because the jury mistakenly applied a legal principle or because there was no evidence to which the legal principles of the case could be applied. Rather, the court finds that the jury could reasonably and legally have reached the conclusion that it did. Consequently, the verdicts must stand.”
On appeal, the defendant iterates its contention that the plaintiffs failed to meet their burden with respect to causation. Specifically, it argues that there was insufficient evidence that (1) the Rowasa enema could cause the perforation in the posterior of the rectum and (2) either of the defendant‘s employees negligently administered the enema. We will address each contention in turn.
A
The defendant first contends that the plaintiffs failed to produce sufficient evidence from which the jury reasonably could conclude that the Rowasa enema could have caused the perforation in the posterior of the rectum. Specifically, it argues that there was no expert evidence presented that the Rowasa enema was of sufficient length or rigidity to have caused the perforation sustained by this specific individual. We are not persuaded.22
In its brief, the defendant asserts that the evidence at trial established that the tip of the Rowasa enema was 4.375 centimeters in length and that the average length of the anal canal is between 3.5 centimeters and 5 centimeters. “Therefore, if [Bruce] Cockayne‘s anal canal was anywhere near the long end of average, the tip of the Rowasa enema could not have reached beyond the anal canal into the rectum, let alone to the posterior of the rectum. And even if [Bruce] Cockayne had a shorter anal canal within that range, it is almost inconceivable that the soft, flexible tip of the Rowasa enema could have rounded the bend at the end of the canal and crossed the rectum to cause a two centimeter puncture in the posterior rectal wall.”
During his testimony, Korsten described the perforation: “Well, it‘s considered to be a significant tear. It‘s a long tear. It was not very far into the rectum. It was just in an area where the anal canal had ended and just into the most terminal part of the rectum . . . .” He also stated that the improper administration of an enema could cause such a perforation. He had physically examined this type of enema. Korsten described the tip of the Rowasa enema as “not that flexible” and having “some stiffness to it.” Korsten also opined that aggressive force had been used during the administration of the enemas during the hospitalization. He stated that the length of the anal canal ranged, on average, between 3 centimeters and 5.3 centimeters and, therefore, the tip of the enema, measuring 4.375 centimeters, could reach into the rectum, the location of the perforation in this case. Additionally, he noted that, “[i]n certain circumstances, the tip may well not bend the way you would like it to bend. It may get caught, snag itself, the tip may get snagged against the lining of the intestine and as you continue to push, it is definitely possible, if not likely, that this tool is strong enough to go through the rectum.” In conclusion, Korsten stated that there was “no doubt” in his mind that the Rowasa enema was capable of causing the perforation suffered by Bruce Cockayne.
The defendant has failed to cite any authority for its assertion that the plaintiffs needed to provide specific evidence of Bruce Cockayne‘s actual anatomical measurements. This argument imposes a requirement on expert testimony and evidence beyond that found in our jurisprudence. “Expert opinions must be based upon reasonable probabilities rather than mere speculation or conjecture if they are to be admissible in establishing causation. . . . To be reasonably probable, a conclusion must be more likely than not.” (Internal quotation marks omitted.) Peatie v. Wal-Mart Stores, Inc., 112 Conn. App. 8, 21, 961 A.2d 1016 (2009). The plaintiff is not required to disprove all other possible explanations. Procaccini v. Lawrence + Memorial Hospital, Inc., supra, 175 Conn. App. 719. We iterate that an expert is not required to use talismanic words to show reasonable probability so long as it is clear that his or her opinion is based on reasonable probabilities, i.e., more likely than not, to establish that the opinion constitutes more than pure speculation. Milliun v. New Milford Hospital, 129 Conn. App. 81, 100, 20 A.3d 36 (2011), aff‘d, 310 Conn. 711, 80 A.3d 887 (2013); see also State v. Nunes, 260 Conn. 649, 672–73, 800 A.2d 1160 (2002); Gois v. Asaro, 150 Conn. App. 442, 449–50, 91 A.3d 513 (2014).
The jury heard different expert opinions regarding whether the Rowasa enema could have caused the perforation and was tasked with determining which opinion to believe. See Scott v. CCMC Faculty Practice Plan, Inc., 191 Conn. App. 251, 260, 214 A.3d 393 (2019). We emphasize that “[c]onflicting expert testimony does not necessarily equate to insufficient evidence. . . . Rather, [w]here expert testimony conflicts, it becomes the function of the trier of fact to determine credibility and, in doing so, it could believe all, some or none of the testimony of [an] expert. . . . It is axiomatic that in cases involving conflicting expert testimony, the jury is free to accept or reject each expert‘s opinion in whole or in part.” (Citations omitted; internal quotation marks
B
The defendant next argues that the plaintiffs failed to produce sufficient evidence from which the jury reasonably could conclude that either of its employees, Kaine or Lapaan, negligently administered the enema.23 Specifically, it contends that the plaintiffs failed to present any affirmative evidence that either nurse negligently caused the perforation and that the use of a differential diagnosis is an improper method of establishing causation. We disagree.
The defendant‘s argument relies significantly on our decision in Mozzer v. Bush, supra, 11 Conn. App. 434. In that case, the plaintiff sustained a right ulnar neuropathy during a gall bladder operation. Id., 435. The plaintiff claimed that the surgeon and anesthesiologist negligently positioned her right arm during the surgery. Id. The plaintiff testified “that she had no knowledge of what had transpired in the operating room, and did not remember being positioned on the operating table.” Id. During the trial, the plaintiff‘s first expert witness, a neurosurgeon, opined that her injury “was ‘related in some way to her surgical procedure.’ ” Id. The plaintiff‘s second expert witness, an anesthesiologist, testified, in response to a hypothetical question, that, in his opinion, the injury had occurred during the surgery. Id., 435–36.
On appeal, the plaintiff claimed that the court erred in striking her experts’ testimony after she had concluded her case. Id. We determined that this claim had not been raised before the trial court and was not plain error. Id., 437–38. Accordingly, we declined to address the merits of her claim regarding the timing of the trial court‘s decision to strike the expert testimony. Id., 438.
This court expressly has noted the limited applicability of Mozzer. For example, in Samose v. Hammer-Passero Norwalk Chiropractic Group, P.C., 24 Conn. App. 99, 100, 586 A.2d 614, cert. denied, 218 Conn. 903, 588 A.2d 1079 (1991), the plaintiffs commenced a malpractice action against a business entity and two of its agents who were chiropractors. The jury returned a verdict in favor of the plaintiff with respect to one of the chiropractors and the business entity. Id., 101. On appeal, the defendants claimed that the trial court improperly failed to direct a verdict in their favor on the basis that the plaintiff presented insufficient evidence to prevail. Id., 102. In rejecting this claim and affirming the judgment, we noted that there was evidence for the jury to find that the failure to take X-rays, coupled with a subsequent spinal manipulation of the seventy-six year old plaintiff, constituted a deviation from the applicable standard of care. Id., 103. The jury also heard evidence of causation from numerous witnesses regarding the degree of force and the type of spinal manipulation done on successive days to the plaintiff‘s back. Id., 104. One of the experts specifically identified which chiropractor ruptured the plaintiff‘s disc. Id.
In rejecting the defendant‘s reliance on Mozzer v. Bush, supra, 11 Conn. App. 434, we noted that the plaintiff in that case had presented no evidence as to what had occurred during her surgery and completely failed to identify any specific act of negligence by a particular person. Samose v. Hammer-Passero Norwalk Chiropractic Group, P.C., supra, 24 Conn. App. 105–106. “[I]n contrast [to Mozzer], the plaintiff met his burden of presenting evidence as to what took place at the chiropractors’ offices and who acted on him on the dates in question. Mozzer is thus distinguishable from [Samose] and does not control its outcome.” Id., 106; see also Amsden v. Fischer, 62 Conn. App. 323, 331–32, 771 A.2d 233 (2001) (Mozzer was distinguishable and court properly denied motions for directed verdict and to set aside jury‘s verdict when plaintiff met his burden of proving what transpired during surgery and follow-up visits).
In the present case, the jury heard evidence that there was no perforation of Bruce Cockayne‘s rectum in January, 2014, that the most likely cause of the rectal perforation was the insertion of a foreign object, and that nothing had been inserted into Bruce Cockayne‘s anus or rectum following the attempted enema administration by Marion Cockayne until his February, 2014 hospitalization and the administration of enemas by the defendant‘s employees. The jury also heard expert testimony as to four possible causational events: (1) a colonoscopy, (2) Marion Cockayne‘s
Korsten used a differential diagnosis to eliminate the colonoscopy, the attempted administration of the Rowasa enema at the plaintiffs’ home, and the spontaneous tearing of the rectum as a result of Crohn‘s disease as the cause of the perforation. He opined that, to a reasonable degree of medical probability, a Rowasa enema administered during the February, 2014 hospitalization of Bruce Cockyne caused the perforation. Our Supreme Court has defined a differential diagnosis as “a method of diagnosis that involves a determination of which of a variety of possible conditions is the probable cause of an individual‘s symptoms, often by a process of elimination. See, e.g., Stedman‘s Medical Dictionary (28th Ed. 2006) p. 531.” DiLieto v. County Obstetrics & Gynecology Group, P.C., 297 Conn. 105, 114 n.13, 998 A.2d 730 (2010). It is clear, therefore, that the defendant‘s attempt to establish the type of evidentiary lacunae present in Mozzer v. Bush, supra, 11 Conn. App. 436, is unavailing. See, e.g., Procaccini v. Lawrence + Memorial Hospital, Inc., supra, 175 Conn. App. 725–27 (causation in medical malpractice action may be proved by circumstantial evidence and expert testimony).
The defendant also argues that a differential diagnosis is not a valid means to establish causation. We disagree. A review of our case law reveals numerous examples that support the use of a differential diagnosis. For example, in Sargis v. Donahue, supra, 142 Conn. App. 513, this court indicated that a causal relationship between an injury and its later physical effects may be established by, inter alia, a physician‘s deduction by the process of eliminating other causes.
Decisions from our Supreme Court provide further guidance and support for the use of a differential diagnosis in establishing causation in a medical malpractice action. In Milliun v. New Milford Hospital, 310 Conn. 711, 714–16, 80 A.3d 887 (2013), the plaintiff, the conservator of an individual (the patient) who suffered from a rare neurological disease, filed an action against the defendant hospital for medical malpractice. Specifically, the plaintiff claimed that, while in the defendant‘s care, the patient experienced a calamitous, four minute respiratory event during which her rate of breathing fell to a rate of only two breaths per minute. Id., 715. Following this anoxic incident, the patient sustained severe injury to her cognitive functioning. Id., 715–16. The plaintiff alleged negligence on the part of the defendant for failing to monitor the patient, failing to respond to her respiratory distress, and administering medication known to cause respiratory distress when combined with another medication that the patient was taking. Id., 716.
The patient was evaluated and treated at the Mayo Clinic in Rochester, Minnesota. Id. Two of the physicians at the Mayo Clinic opined that the patient‘s cognitive impairment was caused by the anoxic incident and not her underlying neurological disorder. Id., 717. These physicians were among those disclosed as experts by the plaintiff, but the internal policies of the Mayo Clinic prevented the defendant from deposing these witnesses. Id., 718. The defendant requested that the court preclude the plaintiff from relying on the medical records of the treating physicians as to the issue of causation; the plaintiff countered
On appeal, our Supreme Court commenced its analysis by stating that causation may be established by a signed report of a treating physician in place of live testimony, so long as the defendant was afforded the opportunity to cross-examine the author of such a report. Id., 725–26. It then explained that an expert‘s opinion may be based on hearsay. Id., 727.24
After a careful review of the medical records, in which the Mayo Clinic physicians had considered the patient‘s medical history and had conducted their own testing and examinations, our Supreme Court concluded that these physicians had sufficient, reliable information to diagnose the patient and to determine the cause of her cognitive impairment. Id., 731–32. “The physicians ruled out [the patient‘s neurological condition] or some other neurodegenerative condition as the cause of those injuries and apparently concluded that the anoxic incident, as described, was the presumptive cause of [the patient‘s] cognitive deficits because such a causal relationship was consistent with the timing of the onset of symptoms, the symptoms manifested and the results of comprehensive examination and testing. Such a deductive process is a proper method on which to base an opinion as to causation. . . . Although there may be other possible causes that the physicians did not consider, such matters go to weight, not admissibility.” (Citations omitted; emphasis altered.) Id., 732–33; see also Mancuso v. Consolidated Edison Co. of New York, Inc., 967 F. Supp. 1437, 1446 (S.D.N.Y. 1997) (critical to establishing specific causation is exclusion of other possible causes of symptoms, and this method of considering all relevant potential causes and eliminating alternative causes based upon physical examination, clinical tests and thorough case history is called differential diagnosis).
In Klein v. Norwalk Hospital, 299 Conn. 241, 243–44, 9 A.3d 364 (2010), the plaintiff was receiving intravenous antibiotics following an operation. A registered nurse employed by the defendant inserted a new intravenous line into his left arm, and, following this procedure, he experienced neurological deficits in his left hand. Id., 244–45. The plaintiff alleged that the defendant‘s employee committed medical malpractice by improperly inserting the intravenous line and causing an anterior interosseous nerve palsy. Id., 245.
The defendant disclosed an expert to testify that the plaintiff‘s condition was the result of Parsonage Turner Syndrome. Id. During the trial, the plaintiff‘s expert, who
On appeal, the plaintiff claimed that the court improperly excluded his expert from testifying in front of the jury regarding Parsonage Turner Syndrome. Id., 249. Our Supreme Court, agreeing with the plaintiff, first observed that the disclosure of the plaintiff‘s expert indicated that he would testify on the issue of causation. Id., 251–52. This disclosure implicitly informed the defendant that the expert‘s testimony would include what did not cause the plaintiff‘s injury. Id., 252. Our Supreme Court discussed the expert‘s use of a differential diagnosis. Id. “In the present case, [the plaintiff‘s expert] was permitted to testify that, in his expert opinion, the plaintiff‘s alleged injury can only happen as a result of negligence as a result of deviating from the standard of care. To the extent that this conclusion was the result of [the plaintiff‘s expert‘s] differential diagnosis, it necessarily was based on his consideration and elimination of the other possible causes for the alleged injury, including the theory of causation advanced by the defendant. This court never has articulated a requirement that a disclosure include an exhaustive list of each specific topic or condition to which an expert might testify as the basis for his diagnosis; disclosing a categorical topic such as causation generally is sufficient to indicate that testimony may encompass those issues, both considered and eliminated, necessary to explain conclusions within that category.” (Internal quotation marks omitted.) Id.
Our Supreme Court then considered whether the trial court‘s improper exclusion of the plaintiff‘s expert witness was harmful. Id., 254–56. It noted that the plaintiff‘s case presented, on the issue of causation, a choice between the plaintiff‘s theory of an errant intravenous needle stick and the defendant‘s theory of Parsonage Turner Syndrome. Id., 256–57. It also reasoned that the plaintiff‘s expert was the only physician who testified that the defendant, through its employee, had breached the standard of care. Id., 258. “Because that conclusion rested on a differential diagnosis of the plaintiff‘s alleged injury, that diagnosis and its component exclusions of other possible causes were uniquely important to the issue of breach, and accordingly, were not replicated by any other evidence at trial. The other expert testimony excluding Parsonage Turner Syndrome addressed only causation, and did not address the question of breach. . . . Additionally, it is significant, in our view, to consider that [the] excluded testimony [of the plaintiff‘s expert] also would have aided in establishing his credibility as an expert and the reliability of his ultimate conclusions in the eyes of the jury. In other words, but for the trial court‘s improper exclusion, [the plaintiff‘s expert] could have explained not only that he had rejected the defense theory of Parsonage Turner Syndrome as a cause, but also why he had done so.” (Citation omitted; footnote omitted.) Id., 258.
On the basis of these cases, we conclude that the use of a differential diagnosis in the present case was proper and sufficient to establish the plaintiffs’ theory of causation; that is, that the defendant‘s employees caused the perforation suffered
II
The defendant next claims that the court improperly denied its motion to set aside the verdict and order a new trial. Specifically, it argues that the plaintiffs failed to present expert evidence that Lapaan negligently caused the perforation and, therefore, the jury improperly was permitted to consider a specification of negligence unsupported by the evidence. We are not persuaded by this claim.
On January 21, 2020, the defendant filed proposed jury interrogatories consisting of four questions. Questions one and two asked the jury to indicate whether the plaintiffs had proved that Kaine deviated from the standard of care in her treatment of Bruce Cockayne in 2014, and whether this deviation had caused the perforation.26 Questions three and four repeated these inquiries with respect to Lapaan.27 The
On January 23, 2020, the plaintiffs and the defendant expressly indicated their satisfaction with the court‘s proposed jury charge.28 The court then heard argument regarding the defendant‘s proposed jury interrogatories.29 The defendant‘s counsel argued, inter alia, that the jury was required to find that at least one of its employees, Kaine or Lapaan, was negligent.30 The court, in the exercise of its discretion,31 denied the defendant‘s motion to submit interrogatories to the jury. It concluded that the proposed interrogatories were inconsistent with the agreed upon jury charge that used “and/or” language with respect to the culpability of Kaine and Lapaan and were unnecessary, given the separate nature of the two counts alleged in the plaintiffs’ complaint.32
Subsequent to the jury‘s verdict, on March 2, 2020, the defendant filed
On March 16, 2020, the plaintiffs filed their objection to the defendant‘s motion to set aside the verdict. In its March 30, 2020 reply, the defendant emphasized that, “[e]ven if there was a sufficient basis to conclude that Kaine negligently caused the perforation, it is well established that, when the general verdict rule is inapplicable, a new trial is required if [the court concludes that] . . . any ground on which the jury could have based its verdict was improper.” (Emphasis omitted; internal quotation marks omitted.) The court heard argument from the parties on July 20, 2020.
The court issued its memorandum of decision denying the defendant‘s motion to set aside the verdict on August 25, 2020. It noted its agreement with the plaintiffs’ position that “it did not matter which
The court concluded that the plaintiffs had presented sufficient evidence at trial to meet their burden to prevail on their claims. Specifically, it pointed to the following in its summary of the evidence: “Korsten testified that he did not know which of the two nurses caused the perforation, however, when pressed by [the defendant‘s] counsel he stated that, more likely than not, Nurse Kaine administered the enema that caused the perforation. Nurse Mohammed also testified that she could not determine which of the two nurses caused the perforation, but that the enema administered by Nurse Lapaan was the likely cause. . . . There was no dispute that both nurses had administered a Rowasa enema to Bruce Cockayne . . . .”
The defendant‘s claim here requires us to conduct a bifurcated inquiry. First, we must determine whether the plaintiffs presented sufficient evidence to support a finding that Lapaan negligently caused the perforation. If we answer that question in the negative, then we proceed to a determination of whether the jury‘s verdict may stand.36 If we conclude, however, that the plaintiffs presented sufficient evidence with respect to either nurse having caused the perforation, then this claim must fail.
A detailed discussion of the causation evidence adduced during the trial regarding each of the defendant‘s nurses is necessary. Korsten testified that he was familiar with the administration of enemas as part of his medical practice. He also taught the proper administration of enemas to other medical professionals. After reviewing the relevant medical records, he reached the opinion that the perforation sustained by Bruce Cockayne was caused by an enema that had been administered improperly. During his cross-examination, Korsten indicated that either Kaine or Lapaan used excessive force, without realizing it, when administering the enema to Bruce Cockayne during his hospitalization. When asked which nurse “did not violate their nursing standard of care,” he responded: “I can‘t tell you. I don‘t know.” The defendant‘s counsel then inquired as to which nurse caused the perforation and, thus, violated the standard of care. Korsten responded: “It would be the nurse who said this was the first unsupervised administration of an enema that she had ever done. That would be the most likely person.” Korsten then stated that Kaine, who administered enemas on February 11 and 12, 2014, was more likely than not to have violated the standard of care based on her inexperience. Although Korsten identified Kaine as being the person most likely to have caused the perforation, he could not state on which date it had occurred. When asked if he thought that Lapaan was not negligent and did not cause the perforation, Korsten responded: “Just—I previously said that, I believe, that I thought it was Kaine, not Lapaan.”
During redirect examination, the following colloquy occurred between the plaintiffs’ counsel and Korsten:
“Q. And [the defendant‘s counsel] asked you to identify which nurse you think was the most probable person to do it. That was the first time that question was ever asked of you, I assume.
“A. Yes.
“Q. Your opinion has been that one or both of them did it or maybe both of them did it themselves, but you feel now after reviewing that probably the most probable person is Jordan Kaine.
“A. Yes.
“Q. You‘re not excluding Ms. Lapaan, but it‘s most likely Jordan Kaine.
“A. If I had to choose, it was Jordan Kaine.
“Q. Regardless, it was one of the [defendant‘s] employees . . . .
“A. Yes.”
During recross-examination, Korsten again stated that Kaine was more likely than Lapaan to have caused the perforation. Korsten, however, noted that it was not impossible for Lapaan to have caused the perforation.
We conclude that the plaintiffs presented sufficient evidence for the jury to find that Lapaan caused the perforation. Korsten testified that the administration of an enema with excessive force caused the perforation. The plaintiffs presented evidence that Lapaan, in the course of her employment duties and care of Bruce Cockayne, administered an enema on February 13, 2014, during the time frame in which the perforation likely occurred. Korsten initially testified regarding his uncertainty as to which nurse, Kaine or Lapaan, caused the perforation. On specific cross-examination, how-ever, he stated that Kaine was more likely to have caused the perforation. He later clarified, however, that he had not previously considered which nurse was more likely responsible and that, regardless, one of the nurses had caused the perforation. Viewing the totality of his testimony, we conclude that the jury could have determined that, in Korsten‘s view, Kaine was more likely to have caused the perforation, but he did not exclude Lapaan. Moreover, the jury was not required to accept any specific portion of Korsten‘s testimony. Shelnitz v. Greenberg, 200 Conn. 58, 68, 509 A.2d 1023 (1986) (jury was free to accept or reject expert opinion in whole or in part); Marchell v. Whelchel, 66 Conn. App. 574, 583, 785 A.2d 253 (2001) (same); see also Fajardo v. Boston Scientific Corp., 341 Conn. 250, 260 A.3d 1150 (2021) (Ecker, J., concurring in part and dissenting in part). The jury, therefore, could have credited his testimony that the administration of an enema by Lapaan caused the perforation in this case and that such perforation was the result of negligence.
Mohammed‘s testimony also provided a sufficient basis for the jury to find that Lapaan caused the perforation. First, we note that, although the plaintiffs had disclosed her as an expert on the applicable standard of care for nursing, she testified at trial, in response to questions from the defendant‘s counsel, on the issue of causation. The defendant‘s counsel, during cross-examination, referred to Mohammed‘s deposition where she had opined that Kaine or Lapaan used an improper technique. The defendant‘s counsel then questioned Mohammed as to which nurse had been negligent and specifically inquired as to which administration of an enema had caused the perforation. Next, the defendant‘s counsel, again referring to her deposition, asked Mohammed about her opinion that the February 13, 2014 enema administration, performed by Lapaan, caused the perforation. Mohammed testified that she still held that opinion. After further questioning by the defendant‘s counsel, Mohammed “clarif[ied]” her testimony and stated that she could not
As we previously stated, the jury was free to credit or reject any specific part of an expert‘s testimony. Procaccini v. Lawrence + Memorial Hospital, Inc., supra, 175 Conn. App. 721; see also Shelnitz v. Greenberg, supra, 200 Conn. 68. Specifically, it could have credited Mohammed‘s opinion, as set forth in her deposition and in court, that Lapaan caused the perforation.
In its appellate brief, the defendant notes that the plaintiffs did not disclose Mohammed as a causation expert.37 It was, however, the defendant that raised the subject of causation with her during cross-examination. Having initiated the topic with Mohammed during the trial, the defendant cannot now change course and claim that such testimony was improper. “Our rules of procedure do not allow a [party] to pursue one course of action at trial and later, on appeal, argue that a path he rejected should now be open to him. . . . To rule otherwise would permit trial by ambuscade.” (Internal quotation marks omitted.) Ferri v. Powell-Ferri, 317 Conn. 223, 236–37, 116 A.3d 297 (2015); see also Szymonik v. Szymonik, 167 Conn. App. 641, 650, 144 A.3d 457 (party cannot adopt one position at trial and then different one on appeal), cert. denied, 323 Conn. 931, 150 A.3d 232 (2016).
On the basis of our review of all testimony on the issue of causation, we conclude that the plaintiffs presented sufficient expert evidence for the jury to find that Lapaan caused the perforation of Bruce Cockayne‘s rectum. In considering the testimony from the plaintiffs’ experts, the jury reasonably could have determined that there was a reasonable probability that Lapaan‘s conduct was a substantial factor in causing the perforation. On the basis of this evidence, the court properly denied the motion to set aside the verdict, and the defendant‘s claim that the jury improperly was permitted to consider a theory of negligence unsupported by the evidence must fail.
The judgment is affirmed.
In this opinion the other judges concurred.
ALEXANDER, J.
Notes
“a. perforated [Bruce Cockayne‘s] rectum during the course of enema administration when, in the exercise of reasonable care, [his] rectum should not have been perforated;
“b. permitted an agent, servant or employee of the defendant to perform the administration of an enema when said person was inadequately trained and/or lacked the experience and knowledge to do so;
“c. permitted an agent, servant or employee of the defendant to perform the administration of an enema when the use of an enema was contraindicated by the condition of [Bruce Cockayne‘s] rectum;
“d. failed to discover in a timely manner the perforated rectum;
“e. failed to discover and repair the perforation in a timely manner;
“f. failed to appreciate the signs and symptoms of a perforated rectum during the course of [Bruce Cockayne‘s] admission; and/or
“g. failed to take appropriate measures in light of the signs and symptoms of a perforated rectum.”
In the present case, the vicarious liability of the defendant was premised on the doctrine of respondeat superior. See, e.g., Ali v. Community Health Care Plan, Inc., 261 Conn. 143, 151, 801 A.2d 775 (2002); 2 National Place, LLC v. Reiner, 152 Conn. App. 544, 557–58, 99 A.3d 1171, cert. denied, 314 Conn. 939, 102 A.3d 1112 (2014). “[T]he theory of respondeat superior attaches liability to a principal merely because the agent committed a tort while acting within the scope of his employment.” Larsen Chelsey Realty Co. v. Larsen, 232 Conn. 480, 505, 656 A.2d 1009 (1995).
“The doctrine of res ipsa loquitur, literally the thing speaks for itself, permits a jury to infer negligence when no direct evidence of negligence has been introduced. . . . The doctrine of res ipsa loquitur applies only when two prerequisites are satisfied. First, the situation, condition or apparatus causing the injury must be such that in the ordinary course of events no injury would have occurred unless someone had been negligent. Second, at the time of the injury, both inspection and operation must have been in the control of the party charged with neglect. . . . When both of these prerequisites are satisfied, a fact finder properly may conclude that it is more likely than not that the injury in question was caused by the defendant‘s negligence.” (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 575–76, 864 A.2d 1 (2005).
We agree with the defendant that res ipsa loquitur must be pleaded specifically if a plaintiff intends to use that theory of negligence. See, e.g., White v. Mazda Motor of America, Inc., 313 Conn. 610, 626–27, 99 A.3d 1079 (2014). We disagree, however, with the defendant that this doctrine was relied on by the plaintiffs or the trial court. As we have explained, the plaintiffs presented testimony from expert witnesses to establish causation, which included the use of a differential diagnosis. There was expert testimony presented to the jury ruling out certain events as having caused the perforation and identifying the specific act that did cause it. The negligence, in this case, was not inferred in the absence of direct evidence. Accordingly, we conclude that the defendant‘s contention that the plaintiffs could prevail only by relying on res ipsa loquitur, which was not part of this case, is unavailing.
* * *
“In their complaint, the plaintiffs allege that [the defendant‘s] employees, Nurses Kaine and/or Lapaan, breached the standard of care applicable to registered nurses, and were, therefore, negligent in the care and treatment rendered to Bruce Cockayne and that either one or both of them perforated Bruce Cockayne‘s rectum during the course of an enema treatment. . . . The plaintiffs must prove that any injury or harm for which they seek compensation from [the defendant] was caused by Nurses Kaine and/or Lapaan.” (Emphasis added.)
“Our Supreme Court has held that the general verdict rule applies to the following five situations: (1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.” (Citations omitted; internal quotation marks omitted.) Green v. H.N.S. Management Co., 91 Conn. App. 751, 754–55, 881 A.2d 1072 (2005), cert. denied, 277 Conn. 909, 894 A.2d 990 (2006). Additionally, the general verdict rule had been held to be inapplicable when the complaint contains several specifications of negligence of an interlocking nature that support only one theory of recovery and it would be too difficult to consider them separately. Id., 755–57; see also Rodriguez v. State, 155 Conn. App. 462, 486 n.16, 110 A.3d 467 (2015) (decisions of our Supreme Court repeatedly have held that “general verdict rule does not apply to different specifications of negli-gence“), cert. granted, 316 Conn. 916, 113 A.3d 71 (2015) (appeal withdrawn December 15, 2015).
We note that the defendant‘s proposed interrogatories would have required the members of the jury to agree unanimously on which nurse, Kaine or Lapaan, had violated the standard of care and caused Bruce Cockayne‘s injuries. Such a requirement would have elevated the plaintiffs’ burden to a standard not required by our jurisprudence.
To be sure, “[i]n this state it is required that jury verdicts be unanimous, requiring each juror to decide the case individually after impartial consideration of the evidence with the other jurors.” (Internal quotation marks omitted.) Monti v. Wenkert, 287 Conn. 101, 114, 947 A.2d 261 (2008); see also Practice Book § 16-30. This unanimity requirement, as the trial court implicitly recognized, did not extend to a finding of which nurse bore the ultimate responsibility for the perforation. In other words, the jurors were not required to unanimously agree that it was either Kaine, Lapaan, or both, who had caused the perforation. The members of the jury simply needed to be in agreement that at least one of the nurses violated the standard of care and caused the injuries to Bruce Cockayne to find the defendant vicariously liable.