Opinion
Thе plaintiff, Michele Gilbert, appeals from the judgment rendered by the trial court following a jury verdict in favor of the defendants, Robert A. Yordan and Middlesex Obstetrical and Gynecolоgical Associ
The following faсts and procedural history are relevant to the resolution of this appeal. The plaintiff filed a seven count complaint dated April 1, 1996, against Middlesex Hospital and Middlesex Obstetrical, and against Robert A. Yordan, Kenneth L. Eckhart, Deborah A. Mueller and Donald E. Miller, as associates and physician employees of Middlesex Obstetrical. The plaintiff claimed that on August 1, 1995, Yordan performed a procedure known as an episiotomy on the plaintiff and delivered the plaintiff’s daughter. The plaintiff alleged that Yordan left a sponge in her vagina after the delivery of her baby and that this sponge was not removed until August 16,1995. The complaint alleged negligence against all defendants and res ipsa loquitur against Mid-dlesex Hospital, Yordan and Middlesex Obstetrical. The plaintiff filed a motion for summaiy judgment dated July 11, 1996.
The plaintiff filed a revised complaint, dated August 5, 1997, containing five counts alleging nеgligence on the part of the aforesaid defendants. In the revised complaint, there were no allegations of res ipsa loquitur. On November 24, 1998, the plaintiff withdrew the comрlaint against the named defendant Middlesex Hospital. On December 10, 1998, the court denied the plaintiffs motion for summary judgment. On December 15, 1998, the plaintiff withdrew the complaint against Miller, Eck-hart and Mueller. The case proceeded to trial against the remaining defendants, Yordan and Middlesex Obstetrical. The jury returned a verdict in favor of Yor-dan and Middlesex Obstetriсal. The plaintiff then filed the present appeal.
The plaintiff first claims that the court improperly failed to instruct the jury on the doctrine of res ipsa loquitur. “Whether the doctrine of res ipsa loquitur applies in a particular case is a question of law over which our review is plenary. Giles v. New Haven,
We initially note that the plaintiff has failed to comply with Practice Book § 67-4 (d) (l)
“A complaint must fairly put the defendant on notice of the claims of negligence against him. . . . The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculatеd to prevent surprise. . . . Only those issues raised by the plaintiffs in the latest complaint can be tried before the jury.” (Citations omitted.) Farrell v. St. Vincent’s Hospital,
At trial, the plaintiff introduced direct evidence through the testimony of Ralph Epstein, a physician, сoncerning Yordan’s alleged acts of negligence. “[A] res
Because the amended complaint contained no allegations concerning res ipsa loquitur, and because the plaintiff offered direct evidence of the defendants’ negligence at trial, an instruction on res ipsa loquitur was not warranted.
II
The plaintiff next claims that the court improperly denied her motion for summary judgment. We note, however, that “absent exceptional circumstanсes, a denial of a motion for summary judgment is not appeal-able where a full trial on the merits produces a verdict against the moving party.” (Internal quotation marks omitted.) Gurliacci v. Mayer,
III
The plaintiff next claims that the court improperly instructed the jury on the use of common sense. The plaintiff has failed to comply with Practicе Book § 67-4 (d) (2)
IV
The plaintiffs final claim is that the evidence does not reasonably support the jury’s verdict.
“[I]t is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence . . . rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferеnces therefrom, supports the jury’s verdict .... Purzycki
Although the plaintiff presented the testimony of Epstein, a medical expert, in support of her claim of negligencе, the defendants presented two medical expert witnesses, Mary Jane Minkin and Benson J. Horowitz, to counter the plaintiffs claim. Minkin and Horowitz each testified that reasonably рrudent physicians can perform careful examinations following a vaginal delivery and repair of an episiotomy and nevertheless fail to detect a piecе of gauze used in the surgical procedure. The trier may rely more heavily on the testimony of one expert rather than the testimony of another. 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 118c, p. 1146.
The judgment is affirmed.
In this opinion the other judges concurred.
Notes
Practice Book § 67-4 (d) (1) provides: “When error is claimed in the trial court’s refusal to charge the jury as requested, the party claiming such error shall include in the brief оf that party or the appendix thereto a verbatim statement of the relevant portions of the charge as requested and as given by the court and any relevant exсeptions to the charge as given and shall recite in narrative form any evidence which it is claimed would entitle that party to the charge as requested, with appropriate references to the page or pages of the transcript.”
Practice Book § 67-4 (d) (2) provides in relevant part: “When error is claimed in the charge to the jury, thе brief or appendix shall include a verbatim statement of all relevant portions of the charge and all relevant exceptions to the charge. . . . Evidence relеvant to the claimed error shall
Even if we were tо review this claim, the plaintiff would not prevail. During closing argument, the plaintiffs counsel stated: “Although the judge is going to emphasize and point out that your focus will be on the testimony and еvidence in this case, but remember you are not confined precisely to the testimony and evidence in this case. You may make reasonable . . . inferences from the testimony and evidence based upon your common sense and reason. You possess that and you can do that. Nobody can stop you from doing so.”
During the court’s charge, thе court stated that it “[had] to correct some of the impressions left during argument” and instructed the jury, “You may not use your common sense to decide whether or not there was negligence.” The court further stated: “I told you earlier you don’t leave your common sense at the door and you’re going to hear how your common sense can be used in terms of evaluating the testimony, but in medical negligence cases, afinding of liability and negligence mustbe based on expert testimony. You can use your common sense in evaluating the testimony of the expert but you cannot substitute your common sense for the necessary expert testimony. ... So despite plaintiff counsel’s argument that you can find that based on сommon sense, you cannot. You need medical testimony that you find credible and that you accept by a fair preponderance of the evidence.”
The court’s charge was a correct statement of the law. See Barrett v. Danbury Hospital,
The plaintiff did not file a motion to set aside the verdict.