218 Conn. 200 | Conn. | 1991
The named plaintiff, Carrie Wasfi,
In 1981, Wasfi sought treatment for recurring headaches from her family physician, Joseph Sciarrillo. Sciarrillo ordered X rays, a CAT scan and an electroencephalogram (EEG). Chaddha was the radiologist who performed the CAT scan. Chaddha later testified that he had not been fully informed of Wasfi’s symptoms prior to evaluating the CAT scan results. In any event, Chaddha reported to Sciarrillo that the CAT scan result was normal. Sciarrillo prescribed headache medication for Wasfi, which had some positive effects.
In October, 1982, Wasfi noticed sudden loss of hearing in one ear when she attempted to use the telephone. She went to Joseph Riccio, an otolaryngologist, told him of the hearing loss, and also reported headaches, a recent cold and “lightheadedness.” Riccio conducted some office tests and told Wasfi that the hearing loss might be viral (related to her cold) or vascular (related to her diabetes). He recommended “carbogen therapy,” a treatment involving inhalation of a mixture of carbon dioxide and oxygen intended to open a blocked ear vessel. Riccio arranged for other practitioners to perform the therapy and advised Wasfi to contact him after the therapy was complete. Had Wasfi reported continued hearing loss following such treatment, he would at that time have recommended a CAT scan.
Wasfi discussed the suggested carbogen therapy with her husband. After the discussion, she decided not to undergo the carbogen therapy. Wasfi did not inform Riccio of her decision and did not contact him again, although her hearing did not improve. Six months after
At the trial, experts on both sides testified concerning, inter alia, the propriety of Riccio’s prescription of carbogen therapy prior to ordering a CAT scan. The thrust of Riccio’s evidence was that when a patient suffers a hearing loss that may be caused by dozens of nonthreatening conditions, doctors routinely attempt to screen out such conditions before ordering a CAT scan, which would be used to detect a more serious cause for the hearing loss; that if carbogen therapy is successful in restoring hearing, it would also rule out more serious causes for the hearing loss; and that Riccio’s decision to recommend carbogen therapy before ordering a CAT scan was only an application of this standard practice. In addition, Riccio’s counsel elicited expert testimony to the effect that the timing of the CAT scan—before carbogen therapy or after carbogen therapy—was a matter of professional opinion as to which physicians differed. Finally, both defendants offered evidence that by the time Wasfi came to Riccio for treatment, no CAT scan would have made a difference, for the damage had already been done.
The trial court included in its charge to the jury specific instructions on (1) “intervening cause” and (2) “schools of thought” as they affect the standard of care. After the charge was given, court adjourned for the weekend.
When court resumed, the parties presented their exceptions to the charge. Wasfi excepted to the “schools of thought” charge as unwarranted by the evi
The next day the jury requested clarification of the intervening cause instruction. In response, the court told the jury to disregard the second instruction and issued a third and final instruction on intervening cause. Introducing the third charge, the judge said “I’m going to go back in part to my original charge.” Wasfi’s and Riccio’s counsel both took exception to that statement as well as to other parts of the charge. After deliberating another day, the jury returned general verdicts in favor of Riccio and Chaddha. On appeal, Wasfi challenges the trial court’s charges on(l) “schools of thought” and (2) intervening cause.
I
Wasfi contends that the trial court improperly gave an instruction on “schools of thought” when there was no evidence that Riccio had adhered to and acted according to the dictates of a particular school of medical thought distinct from that followed by her own expert witnesses.
The trial court included the disputed instruction in its first charge to the jury, and did not revise it in giving the subsequent curative instructions. The disputed instruction followed a lengthy general instruction on medical malpractice, including the applicable standard
“Now as to Dr. Riccio who undertook treatment of Mrs. Wasfi in his capacity as otolaryngologist, it is his alleged failure to properly diagnose and order proper follow-up studies when he saw Mrs. Wasfi in his office on October 29th, 1982, which is the gravamen of their claim against him. In essence, however, this claim is substantially the same as that presented against Dr. Chaddha. That is the failure to timely and skillfully diagnose her ailment. Consequently the same principles of law that apply to Dr. Chaddha relating to a physician’s duty to properly diagnose a patient’s ailment apply with equal force to Dr. Riccio.”
The court then gave the challenged instruction:
“There has been testimony in this case that Dr. Riccio elected a certain course of treatment for Carrie Wasfi’s condition as he understood it in 1982, to wit: carbogen therapy. There has also been testimony that another course of treatment should have been undertaken and that is ordering a CAT scan. Now there may be more than one established system of diagnosis and treatment. While the law recognizes that there are different schools of thought in this regard, it does not favor or give exclusive recognition to any particular system of diagnosis and treatment over another.
“The law is that a physician is not bound to use any particular method or medical school of thought in diag
“Therefore, you must decide whether or not the carbogen therapy prescribed by Dr. Riccio for Wasfi was an established diagnostic modality under any recognized school of thought or in cases such as Mrs. Wasfi presented to him in October of 1982. If you find by a fair preponderance of the evidence that carbogen therapy was not consistent with any established diagnostic modality for cases such as Mrs. Wasfi’s, then it would be negligent for Dr. Riccio to employ it on Mrs. Wasfi. If, however, you conclude that such a diagnostic modality was an established modality for treating patients in like cases, by ordinarily prudent radiologists [sic] in October of 1982, then Dr. Riccio was not negligent in using it.”
Seizing upon the trial court’s use of the term “schools of thought,” Wasfi assumes that the foregoing charge purported to summarize the principle that the law will not judge between different medical “schools of thought” so long as a physician acts according to the standards within that “school.” Force v. Gregory, 63
Riccio offered no evidence that his conduct was in accordance with such a distinct “school of thought.” Instead his evidence tended simply to show that whether, after a tentative diagnosis of a viral or vascular cause for hearing loss, it was proper to recommend carbogen therapy prior to a CAT scan was a matter of professional opinion—in other words, within the normal range of professional discretion exercised by competent otolaryngologists.
Despite the unfortunate use of the term “schools of thought,” we believe that the trial court did not instruct on “schools of thought,” but instead, correctly stated the settled principle that “where the treatment or procedure is one of choice among competent physicians, a physician cannot be held guilty of malpractice in selecting the one which, according to his best judgment, is best suited to the patient’s needs.” Ball v. Mallinkrodt Chemical Works, 53 Tenn. App. 218, 224, 381 S.W.2d 563 (1964); O'Neill v. Kiledjian, 511 F.2d 511,
Because the court included language appropriate to an instruction on the “schools of thought” doctrine, the charge may have been confusing to lawyers, to whom “schools of thought” is a term of art. There is no reason, however, to believe that the jury suffered from any such linguistic preconceptions. Taken as a whole, the charge adequately conveyed to lay persons the principle that physicians may choose between alternative acceptable methods without incurring liability solely because that choice may have led to an unfortunate result.
In the context of her attack on the charge as a “schools of thought” instruction, Wasfi contends that even the principle of acceptable alternatives requires, as a predicate, that the physician first make a “careful diagnosis.” This contention assumes that there may be acceptable alternatives of treatment, but that only one correct method of diagnosis is possible. Thus, she argues that failure to order a CAT scan was a failure to diagnose and that carbogen therapy was an incorrect method of diagnosis, to which the schools of thought principle could not apply.
The “diagnostic modality” used by Riccio was to try carbogen therapy before, not after, a CAT scan. Riccio elicited testimony from Wasfi’s expert, Gale Ramsby, chief of cardiovascular radiology at the University of Connecticut Health Center, that it would not be unusual for a physician to rule out a viral or vascular cause for hearing loss before ordering a CAT scan, or to recommend therapy and weigh its results before considering a CAT scan. Dirán Mikaelian, an otolaryngologist, another of Wasfi’s experts, admitted that he had testified at his deposition that whether Riccio’s conduct breached the standard of care was “a matter of opinion,” although he insisted at trial that the CAT scan should be performed before prescribing carbogen therapy. Clarence Sasaki, chief of the department of otolaryngology at the Yale University School of Medicine, testified that while a CAT scan was recommended
Wasfi contends that our holding will open a “Pandora’s Box,” shielding a defendant physician from liability every time experts differ concerning his choice of techniques. We disagree. After the plaintiff has presented a prima facie case, the defendant physician who claims that he employed one of several alternative methods accepted within his profession has no less a task than any defendant physician: to offer credible expert evidence that his conduct was accepted within the profession, and to persuade the jury to believe that evidence. It is true that an instruction on alternative acceptable methods may tempt jurors to decide that both sets of experts are right, instead of forcing them to make a difficult choice between opposing experts. The difficulties faced by lay jurors when evaluating expert evidence are, however, endemic to our system of trial by jury. We presume that the jury will abide by its duty to make a thoughtful, reasoned decision, applying its common sense and logic to the evidence presented. Cf. State v. Artis, 198 Conn. 617, 623, 503 A.2d 1181 (1986) (Healey, J., concurring). In this case, the jury would certainly have been justified in concluding that there was a difference of opinion within the profession regarding the timing of a CAT scan for a patient afflicted with a sudden unilateral hearing loss. We do not know, of course, whether the jury found that such a difference of opinion existed, or whether it simply believed Riccio’s course of action was the only right course of action, since no special interrogatories were submitted to the jury.
In addition to the supposed “schools of thought” charge, Wasfi challenges all three instructions on intervening cause, even though the judge specifically told the jury to disregard the two earlier charges. Since those instructions were withdrawn we need consider only the final instruction, upon which the jury is presumed to have relied. State v. Cobb, 199 Conn. 322, 329, 507 A.2d 457 (1986); State v. Cavros, 196 Conn. 519, 528, 494 A.2d 550, cert. denied, 474 U.S. 904, 106 S. Ct. 233, 88 L. Ed. 2d 232 (1985); Willametz v. Guida-Seibert Dairy Co., 157 Conn. 295, 301, 254 A.2d 473 (1968). That supplemental charge is set forth in the footnote.
Wasfi first claims that the third charge invited the jury to consider the doctrine of intervening cause as
We disagree with Wasfi, however, that the portion of the third charge cited
The last sentence of the charge, stating that Riccio’s negligence “would be an intervening cause that broke
Wasfi also claims that the third charge was defective because its references to reasonable foreseeability as a limitation upon liability for a negligent act were
The focus of Wasfi’s criticism of the references to foreseeability is not that such a concept is wholly irrelevant to the causal relationship between a negligent act and the harm flowing therefrom for which a defendant may be held responsible, but that the wording of the charge implied that the “precise damages” or “particular injury” suffered by Wasfi had to be reasonably foreseeable. Reviewing the third charge as a whole, as we must; Oberempt v. Egri, 176 Conn. 652, 656, 410 A.2d 482 (1976); we are not persuaded that it conveyed to the jury the impression that either defendant should be excused from liability for his negligence simply if he could not reasonably have foreseen the precise nature or extent of the harmful consequences that actually were suffered by Wasfi. In this charge the jury was told that “a defendant is not liable if the plaintiffs harm was caused by an independent source which intervenes between that defendant’s negligence and the plaintiff’s resulting condition and produces a result which was not reasonably foreseeable by the defendant. The test then is whether the harm which occurred was the same general nature as the foreseeable risk created or increased by the physician’s negligence.” (Emphasis added.) The court instructed more specifically that, “if you find that Dr. Chaddha could in 1981 reasonably foresee or anticipate that Mrs. Wasfi was likely to suffer the harm of the general nature that she did suffer as a result of his
Wasfi, in excepting to “the language dealing with foreseeability” in the third charge, also claimed “that the error that was made [in the first charge] on the subject matter is one that cannot and has not been corrected.” We disagree. The first charge at some points had phrased the foreseeability element of proximate cause in terms of producing “a result which was not reasonably foreseeable” and foreseeing “the condition or conditions that Mrs. Wasfi claims to have suffered,” and an appropriate exception was taken. We are convinced that the third charge did not contain these infirmities and sufficiently stated the test we have used for determining proximate cause, “whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant’s negligence.” Merhi v. Becker, 164 Conn. 516, 521, 325 A.2d 270 (1973); see Tetro v. Stratford, 189 Conn. 601, 605, 458 A.2d 5 (1983); Coburn v. Lenox Homes, Inc., 186 Conn. 370, 384, 441 A.2d 620 (1982).
Another claim of error in the jury instructions is that the withdrawal of the second charge, which virtually adopted Wasfi’s request
Wasfi’s final claim is that the third charge did not contain language to indicate that, for an intervening force to excuse a person from being liable for harm that his negligence would other-wise be deemed a substantial factor in producing, it must entirely supersede the operation of the antecedent negligence. The third charge included the instruction that “a defendant is not liable if the plaintiff’s harm was caused by an independent source which intervenes between that defendant’s negligence and the plaintiff’s resulting condition and produces a result which was not reasonably foreseeable by the defendant.” We agree that this charge was deficient in failing to inform the jury that the “independent source” must be of such great causal significance as to attenuate the effect of the prior negligence to the extent that it can no longer be regarded as a substantial factor in producing the harm
The judgment is affirmed.
In this opinion the other justices concurred.
The other plaintiff in this case was Carrie Wasfi’s husband, Amr. He sought damages for loss of consortium based upon the same facts alleged by his wife. Throughout this opinion, the name “Wasfi” refers to Carrie Wasfi.
An“acoustic neuroma” is “a progressively enlarging, benign tumor within the auditory canal arising from the eighth cranial (acoustic) nerve.” R. Sloane, Sloane-Dorland Annotated Medical-Legal Dictionary (1987) p. 496.
A “CAT scan” or computerized axial tomography (sometimes referred to as a “CT scan”) is defined as “the gathering of anatomical information from a cross-sectional plane of the body, presented as an image generated by a computer synthesis of x-ray transmission data obtained in many different directions through the given plane”; Stedman’s Medical Dictionary (24th Ed.) p. 1459; in other words, an X ray that shows more than just bones.
An otolaryngologist is a physician specializing in “that branch of medicine concerned with medical and surgical treatment of the head and neck, including the ears, nose and throat.” R. Sloane, Sloane-Dorland Annotated Medical-Legal Dictionary (1987) p. 520.
Wasfi also brought suit against her family physician, Joseph Sciarrillo, and against St. Vincent’s Medical Center, on account of its alleged agency relationship with Chaddha. She withdrew her complaint against Sciarrillo before trial and the court directed judgment for St. Vincent’s. She has not appealed from the directed judgment.
“Hemiparesis” is defined as “muscular weakness or partial paralysis affecting one side of the body”; R. Sloane, Sloane-Dorland Annotated Medical-Legal Dictionary (1987) p. 333; or “slight paralysis affecting one side only.” Stedman’s Medical Dictionary (24th Ed.) p. 631.
Thus, before giving the disputed instruction, the trial court charged the jury on the standard of care in medical malpractice cases: “Now medical malpractice can be defined simply as the unskillful treatment by a physician, and in consequence a person is injured. Physicians are liable for professional negligence if they fail to exercise that degree—that degree of skill, care and diligence ordinarily had and exercised by physicians engaged in the same line of practice at the time of the act or omission in question. Of course, in this case, the lines of practice we are concerned with are radiology with respect to Dr. Chaddha and otolaryngology or ear, nose and throat specialist with respect to Dr. Riccio.
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“[I]t was the duty of the defendant physicians to exercise reasonable care, skill and diligence—with emphasis on the word reasonable—in diagnosing the illness with which Mrs. Wasfi was afflicted while a patient under their professional care. That duty was fulfilled if each of the defendants exercised that degree of care, skill, and diligence which such medical specialists ordinarily had and exercised in such cases at that time.
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“The standard of care is not concerned with what may be the ideal care and treatment in a particular case, but rather the law requires only that an ordinary degree of skill, care and diligence be exercised or given commensurate with that had and exercised in the specialty in which the physician in question practices. As you can see, whether we’re talking about Dr.
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“In this case, there has been expert testimony regarding both the standard of care regarding CAT—of reading CAT scans in connection with the diagnosis of tumors and in particular the diagnosis of acoustic neuromas by radiologists in 1981. There has also been expert testimony regarding clinical diagnosis and care by otolaryngologists of patients presenting symptoms such as those presented by Mrs. Wasfi in October of 1982.
“However, although you may rely on the experts to tell you what the proper standards are in this case, it is still up to you, using that standard as a guide, to measure and determine what the facts are. You the jury must determine from all of the conflicting evidence and opinions whether or not this—in this case Dr. Chaddha or Dr. Riccio or both of them as the case may be failed to comply with or measure up to the appropriate standard of care; and if you find that either or both of them deviated from that standard of care, then you must determine whether or not that deviation was a proximate cause of Carrie Wasfi’s injuries, disabilities and losses.”
The charge in some places uses the terms “treatment” and “diagnosis” interchangeably. The evidence indicated that carbogen therapy is a practical method of removing the symptom of hearing loss. There are many causes of hearing loss, not all of them known. If hearing loss was originally caused by, for example, a temporary condition no longer present, such as a virus, the carbogen therapy may eliminate the hearing loss by opening blocked aural passages. If the hearing loss is caused by a more permanent or serious condition, carbogen therapy cannot eliminate it. Thus, as to temporary conditions, carbogen therapy may be a system of “treatment”; as to more serious, permanent conditions, carbogen therapy serves as a
Without such latitude, physicians may resort to “defensive medicine” such as unnecessary and sometimes hazardous testing (e.g., excessive numbers of X rays). See 3 F. Harper, F. James & O. Grey, Torts § 17.3 n.6; note, “Rethinking Medical Malpractice Law in Light of Medicare Cost-Cutting,” 98 Harv. L. Rev. 1004, 1012-13 (1985).
“The law of intervening cause is this: One whose negligence in the first instance creates or increases the risk of harm is not relieved from responsibility for such harm by the fact that someone else contributes to that harm by another act of negligence so long as the resulting harm suffered was reasonably foreseeable by the defendant. On the other hand, a defendant is not liable if the plaintiff’s harm was caused by an independent source which intervenes between that defendant’s negligence and the plaintiff's resulting condition and produces a result which was not reasonably foreseeable by the defendant. The test then is whether the harm which occurred was [of] the same general nature as the foreseeable risk created or increased by the physician’s negligence.
“Therefore, if you find that Dr. Chaddha could in 1981 reasonably foresee or anticipate that Mrs. Wasfi was likely to suffer the harm of the general nature that she did suffer as a result of his failure to skillfully diagnose the acoustic neuroma and you also find that Dr. Riccio could in 1982 similarly foresee that Mrs. Wasfi was likely to suffer similar consequences that she did in fact suffer as a result of his professional negligence, then neither physician would escape legal responsibility for those injuries or harm. Rather, because of the negligence of the other, Dr. Riccio, the second treating physician here, could only escape legal responsibility for the resulting harm to Mrs. Wasfi if he could not reasonably foresee or anticipate the harm that was likely to occur because of his own negligence. Consequently, Dr. Riccio’s negligence would be an intervening cause that broke the chain of causation between his negligence and the harm suffered by the plaintiff.”
Wasfi cites the last two sentences of the third charge. “Rather, because of the negligence of the other, Dr. Riccio, the second treating physician here, could only escape legal responsibility for the resulting harm to Mrs. Wasfi if he could not reasonably foresee or anticipate the harm that was likely to occur because of his own negligence. Consequently, Dr. Riccio’s negligence would be an intervening cause that broke the chain of causation between his negligence and the harm suffered by the plaintiff.”
Wasfi’s request to charge was as follows: “Negligence of Medical Provider as Intervening Cause
“Under our law, a tortfeasor, or someone who has negligently caused injury to another, cannot escape liability for the consequences of his action, even if the injured party obtains medical care and treatment that worsens, rather than improves, her condition. If the defendant’s negligence is a substantial factor, or proximate cause, in producing the plaintiffs injuries, then it matters not that a physician who treats these injuries failed to use appropriate skill and medical care. The injured plaintiff who has exercised reasonable care in the selection of a physician is not responsible for his unskillful treatment of the case, but may recover from him who is responsible for his primary injury, the damages caused through an aggravation, or failure to provide proper treatment for, the underlying injury by the treating doctor. Thus, under the circumstances of this case, should you find that Dr. Chaddha caused injury to Carrie Wasfi by reason of his negligent failure
The second charge, which conformed to this request, was not withdrawn until after the jury asked for a “rereading” of the intervening cause part of the charge. Chaddha’s attorney had objected to this charge, pointing out that it never defined “what an intervening act is or how an intervening act of someone else might supersede the negligence of someone who was first in line.” We agree that this request, as well as the charge based thereon, did not adequately explain the circumstances under which the possible negligence of Riccio might supersede that of Chaddha, because the element of foreseeability as a limitation on Chaddha’s liability was entirely omitted.
Practice Book § 315 provides as follows: “The supreme court shall not be bound to consider error as to the giving of, or the failure to give, an instruction unless the matter is covered by a written request to charge or exception has been taken by the party appealing immediately after the charge is delivered. Counsel taking the exception shall state distinctly the matter objected to and the ground of objection. Upon request, opportunity shall be given to present the exception out of the hearing of the jury.”
Our conclusion that the third charge did not suggest to the jury that Chaddha’s negligence, if any, might be an intervening cause such as to excuse Riccio from liability does not obviate the need to discuss the claim relating to foreseeability. The charge made foreseeability a limitation on the causal relationship between the possible negligence of each physican and the harm sustained by the plaintiff, apart from the issue of intervening cause.
See footnote 12, supra.
The trial court prefaced its second charge with the folio-wing remarks: “Ladies and gentlemen, it’s been brought to my attention by the attorneys that one of the charges that I gave to you was somewhat long and somewhat confusing. So I’m going to recharge you on the subject and the subject that we were talking about was intervening cause. Now I want you to disregard all that I said about intervening cause and the law of intervening cause and I want you to follow the law as I give it to you now.”
In Kiniry v. Danbury Hospital, 183 Conn. 448, 455-56 n.2, 439 A.2d 408 (1981), this court implicitly approved a charge on intervening cause in a physician malpractice case as follows: “ ‘Therefore, even though you might find that the defendant, Dr. [F], was negligent in one or more of the particulars alleged in the complaint, if you find that Dr. [F]’s negligence ceased to be a substantial factor in producing Mr. [K]’s death and that the negligence of Dr. [M] had so superceded that of Dr. [F], that Dr. [M], without the negligence of Dr. [F] contributing to any material degree, was the real cause for Mr. [K]’s death, then the negligence of Dr. [F] would not be a proximate cause of Mr. [K]’s death, if you find Dr. [F] was negligent, and the defendant, Dr. [F], would not be liable to the plaintiff.’ ”
