7 Conn. App. 604 | Conn. App. Ct. | 1986
The plaintiff appeals from the judgment rendered pursuant to a jury verdict for the defendant physician, Norman Gahm, in this medical malpractice action.
Certain relevant facts are not in dispute. The plaintiff suffered from back pain as early as February, 1973. She consulted the defendant who was then a practicing neurological surgeon with six years experience. He suggested that she undergo further testing at Hartford Hospital. The plaintiff was admitted to the hospital where it was determined that the plaintiff suffered from a herniated disc in her lower back. The defendant operated on the plaintiff, which involved the removal of ruptured disc material. Following this surgery, the plaintiff experienced a temporary inability to void, a common condition following such an operation. The plaintiff regained normal bladder function after a few days. She was discharged from the hospital on April 19, 1973.
Approximately eleven months later, the plaintiff was still experiencing back pain. On March 10, 1974, she was admitted to Hartford Hospital, still under the care of the defendant. More tests were performed which indicated an extradural defect in approximately the
The plaintiff alleged that during this operation, the defendant retracted certain dura matter
I
The plaintiff’s first claim on appeal is that the trial court erred when it charged the jury that a physician is ordinarily not liable for bona fide errors in judgment.
It is clearly error for a trial court to instruct a jury that a physician is not liable for bona fide errors in judgment. See Logan v. Greenwich Hospital Assn., supra; Levett v. Etkind, 158 Conn. 567, 576, 265 A.2d 70 (1969); Green v. Stone, 121 Conn. 324, 330, 185 A. 72 (1936); Sleavin v. Greenwich Gynecology & Obstetrics, P.C., 6 Conn. App. 340, 346, 505 A.2d 436, cert. denied, 199 Conn. 807, 508 A.2d 32 (1986). Such a statement is inaccurate and tends to obfuscate the minimum standard of professional conduct. “Errors in judgment which occur with the best intentions constitute negligence if they result from a failure to use reasonable care.” Logan v. Greenwich Hospital Assn., supra. A determination that the instruction was erroneous, however, does not end our inquiry. See Sleavin v. Greenwich Gynecology & Obstetrics, P.C., supra, 347. We must consider the charge as a whole to determine whether the inclusion of the erroneous statement so distorted the charge as to preclude a fair presentation of the case to the jury, thereby resulting in an injustice. Magnon v. Glickman, 185 Conn. 234, 244, 440 A.2d 909 (1981). “ ‘The charge will ordinarily be sustained if it meets this test, although it may not be exhaustive, perfect or technically accurate. Castaldo v. D ’Eramo, 140 Conn. 88, 94, 98 A.2d 664 (1953).’ Farley v. T.R.W., Inc., 4 Conn. App. 191, 193-94, 493 A.2d 268 (1985).” Sleavin v. Greenwich Gynecology & Obstetrics, P.C., supra, 344.
The jury charge on the defendant’s standard of care was as follows: “Negligence on the part of a physician or surgeon is a failure to exercise that degree of rea
II
The plaintiffs second claim of error concerns the trial court’s instruction regarding the scope of the defendant’s duty of care to the plaintiff during the “immediate postoperative period.” The plaintiff complains that the trial court’s definition of the term “immediate” as meaning “presently, without any substantial interval of time elapsing” was too narrow and precluded the jury from finding liability based upon allegedly negligent acts occurring several days after the surgery. In charging the jury on this claim, the trial court instructed the jury as follows: “In deciding the [issue of the defendant’s negligence during] the immediate postoperative period, it will be your duty to determine what responsibility there was during that period and for how far that period extended. You are the triers
The plaintiff objected to the reading of a portion of the O’Brien case without also reading the sentence which followed. That excluded portion stated “[a]s judicially construed, however, [‘immediately’] is a word of relative significance, much in subjection to its grammatical connection, and used with more or less latitude according to the subject to which it is applied.” O’Brien v. Wise & Upson Co., supra, 312. We find that the trial
III
The plaintiff’s third claim of error is that the trial court erred in failing to instruct the jurors as requested that they could find the defendant liable “for all the wrongful acts or omissions of [the consulting physician] which [the defendant] observes and lets go on without objection, or which in the exercise of reasonable diligence under the circumstances he should have observed.” The defendant argues that such a charge was not warranted by the pleadings and as such was properly denied.
“ Tt is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint. Nash Engineering Co. v. Norwalk, 137 Conn. 235, 239, 75 A.2d 496 [1950].’ ” Matthews v. F.M.C. Corporation, 190 Conn. 700, 705, 462 A.2d 376 (1983). A plaintiff, therefore, may not claim as error the trial court’s refusal to grant a request to charge on any issue not reasonably given rise to by the pleadings. See Hally v. Hospital of St. Raphael, 162 Conn. 352, 358, 294 A.2d 305 (1972). The pleadings are to be read “broadly and realistically, rather than narrowly and technically.” DeMartin v. Yale-New Haven Hospital, 4 Conn. App. 387, 390,494 A.2d 1222, cert. denied, 197 Conn. 813, 499 A.2d 62 (1985).
In the present case, there were several amendments to and substitutions of the complaint. None, however, even mention the consulting physician, Berlin, or allege
IV
The plaintiff’s fourth claim of error is that the trial court erred in failing to instruct the jurors that they could “base a finding of negligence upon the expert testimony of the defendant doctor himself as well as that of other experts.” We agree that the defendant’s own expert testimony could provide the jury with a basis upon which to find the appropriate standard of care. See Dinnerstein v. United States, 486 F.2d 34, 36 (2d Cir. 1973); Levett v. Etkind, supra, 575; Console v.
V
The plaintiffs fifth claim of error alleges that the trial court erred in refusing to grant the following request to charge: “In the instant case the agreement between the plaintiff, a private patient of the defendant, and the defendant doctor, necessarily included the defendant’s obligation to skillfully perform the surgery and to provide competent and proper post-operative care while the plaintiff remained hospitalized.
“The obligation of the defendant as the operating surgeon to provide competent and proper post-operative care continues even after the consultant, Dr. Berlin, entered upon the case on March 19,1974. This responsibility, from that point on, continues until either the patient is discharged or is transferred from the defendant’s service to the service of another physician.”
There is no error.
In this opinion the other judges concurred.
The action against John M. Thomas, an anesthesiologist, was withdrawn. As used in this opinion, the “defendant” refers to Norman Gahm.
Dura matter is the outermost membrane enveloping the spinal cord. See Schmidt, Attorney’s Dictionary of Medicine D-118.
The court quoted part of the definition of the word “immediate” as follows: “Near to or related to. . . . Not secondary or remote. . . . Occurring without intervention of other object or cause.” See Webster, Third New International Dictionary.
Our review of the record discloses only a broad statement by the plaintiff’s expert witness that the treatment which the plaintiff received was below that standard of care exercised by neurosurgeons and urologists.