Opinion
Nos. CV08-5016899-S, CV08-5017945-S
February 24, 2011
MEMORANDUM OF DECISION RE PLAINTIFF'S MOTIONS FOR NEW TRIAL
Introduction
In these two consolidated medical malpractice actions, the plaintiff, Tatiana Sanchez, claims that she suffered serious injuries when an esophageal stethoscope, which was improperly placed in her stomach, was transected during laparoscopic gastric bypass surgery resulting in the procedure being converted to an open procedure in which the plaintiff was required to undergo a esophagojejunostomy because portions of her stomach had been shredded. The cases were tried to a jury on numerous dates between October 14th and November 4th, 2010. On November 10th, 2010, the jury rendered a verdict in favor of all the defendants, Carlos Barba, M.D.; Connecticut Surgeons, LLC; Qassem Kishawi, M.D.; and Katarina Curtis, M.D. In answer to interrogatories posed to it, the jury found that the defendants Carlos Barba, M.D. and Connecticut Surgeons, LLC did not fail to obtain the plaintiff's informed consent to perform a laparoscopic gastric bypass surgery and found that the plaintiff had not proven that the defendants Carlos Barba, M.D., Qassem Kishawi, M.D., and Katarina Curtis, M.D. deviated from the accepted standards of care as alleged.
Before the court are the plaintiff's motion for a new trial filed in each of the actions and the defendants' objections thereto. The court heard oral argument on the motions on January 24, 2011.
Discussion
The plaintiff has moved for a new trial pursuant to General Statutes § 52-228b enumerating seven grounds on which she claims the verdict should be set aside and a new trial ordered. The plaintiff claims that: 1) the court erred in prohibiting the plaintiff from questioning the defendant Curtis about her lack of board certification as an anesthesiologist and her failure to pass the board exam; 2) the court erred in permitting the defendants to present evidence concerning the negligence or breach of the standard of care pertaining to a nurse anesthetist despite the absence of an expert disclosure or evidence concerning the standard of care of such an individual; 3) the court erred by refusing to instruct the jury that it could not consider the liability of a non-party unless the non-party was the sole proximate cause of the plaintiff's injury; 4) the court erred in not charging the jury under the doctrine of res ipsa loquitur; 5) the court erred in refusing to take judicial notice of Connecticut statutes pertaining to the limitation of the duties and responsibilities of a nurse anesthetist acting under the direction of a physician; 6) the court erred by failing to instruct the jury on the borrowed servant doctrine; and 7) the court's instruction requiring expert testimony regarding the plaintiff's informed consent claim constituted plain error.
General Statutes § 52-228b provides: "No verdict in any civil action involving a claim for money damages may be set aside except on written motion by a party to the action, stating the reasons relied upon in its support, filed and heard after notice to the adverse party according to the rules of the court. No such verdict may be set aside solely on the ground that the damages are excessive unless the prevailing party has been given an opportunity to have the amount of the judgment decreased by so much thereof as the court deems excessive. No such verdict may be set aside solely on the ground that the damages are inadequate until the parties have first been given an opportunity to accept an addition to the verdict of such amount as the court deems reasonable."
"It is proper for a trial court, using due caution, and in the exercise of its discretion, to set aside a verdict when satisfied that its instructions to the jury or its rulings on evidence were erroneous and that those erroneous instructions or rulings were consequential enough to have had a substantial effect on the verdict." (Citation omitted.) Ardoline v. Keegan, 140 Conn. 552, 555-6 (1954).
I. Errors Regarding the Admission of Evidence
A number of the plaintiff's arguments center on a claim that the court erred in the admission of, or failure to admit, certain evidence. "[Our Supreme Court has] often stated that before a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result [of the trial] . . . Thus, the determinative question is whether, had the jury been presented with the testimony at issue, it likely would have returned a different verdict." (Citation and internal quotation marks omitted.) Fisher v. Zborowski, 83 Conn.App. 42, 51 (2004). "In other words, an evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful." (Citation and internal quotation marks omitted.) Duffy v. Flagg, 88 Conn.App. 484, 489, (2005), reversed on other grounds, 279 Conn. 682 (2006).
First, the plaintiff claims that the court erred in prohibiting the plaintiff from questioning the defendant Curtis about her lack of board certification as an anesthesiologist and her failure to pass the board exam. The plaintiff, as the offering party had the burden of establishing the relevance of such evidence. Drea v. Silverman, 55 Conn.App. 107, 109 (1999). "Evidence is admissible only if it is relevant . . . Relevant evidence is evidence that has a logical tendency to aid the trier in the determination of an issue . . . One fact is relevant to another if in the common course of events the existence of one, alone or with other facts, renders the existence of the other either more certain or more probable . . . It is well settled that questions of relevance are committed to the sound discretion of the trial court." (Citations and internal quotation marks omitted.) Deas v. Diaz, 121 Conn.App. 826, 844 (2010).
Prior to trial the defendant Curtis moved for an order precluding any party from questioning her regarding the number of times she took the examination for board certification in anesthesiology. The court ruled that she could be asked if she took the exam and the result, but not the number of times. At trial, Curtis did not testify as to her training or experience or offer any expert opinions but testified only factually as to her role in the plaintiff's treatment as well as her habits and customs. Since Curtis did not testify on direct regarding her credentials, the question regarding her attempts to obtain board certification was not within the scope of her direct testimony and was not allowed by the court over her counsel's objection. "In Connecticut, the rule governing the scope of an ordinary cross-examination . . . is the American rule, that is, that insofar as the cross-examination does not take the form of an attack on the credibility of the witness, it must be limited to the subject matter of the direct examination." (Citations omitted.) Mendez v. Dorman, 151 Conn. 193, 198 (1963). Thus the testimony regarding Curtis' attempts to obtain board certification was beyond the scope of the direct examination and irrelevant. "Although cross-examination is restricted to the matters covered in direct examination, except insofar as the cross-examination relates to credibility . . . such restriction rests in the trial court's sound discretion . . . A question on cross-examination is within the scope of the direct examination if it is designed to rebut, impeach, modify, or explain any of the defendant's direct testimony . . . In determining whether cross-examination is within the scope of the direct examination, the trial court is allowed a liberal discretion." (Citations and internal quotation marks omitted.) State v. Scott, 11 Conn.App. 102, 107, cert. denied, CT Page 6025 204 Conn. 811 (1987). In addition, whether Dr. Curtis was board certified certainly did not go to her credibility.
Even though the court had ruled, on the motion in limine prior to trial, that this inquiry could be made, the ruling was subject to review in the context of the trial. The court has discretion on the admissibility of evidence and cannot be bound by a ruling on the admissibility of evidence prior to trial which, in the course of trial, becomes inadmissible. "Seeking to exclude irrelevant, inadmissible and prejudicial evidence from trial, a motion in limine is not a final ruling upon the ultimate admissibility of evidence." (Citations omitted.) State v. Bell, 188 Conn. 406, 414 (1982). Here the plaintiff did not call Curtis as a witness. Her testimony was not presented until the defense presented their witnesses. As the defendant Curtis notes, her strategy at trial changed and she determined that she would not offer evidence as to her credentials or any expert opinions but limited her testimony to the facts of the case within her knowledge. Therefore cross-examination regarding her board certification was not relevant.
In her second claim of error in the admission of evidence, the plaintiff argues that the court erred in permitting the defendants to present evidence concerning the negligence or breach of the standard of care pertaining to a nurse anesthetist despite the absence of an expert disclosure or evidence concerning the standard of care of such an individual. The evidence presented here was simply that the nurse anesthetist was the one who put the esophageal stethoscope into the plaintiff's stomach. Although the evidence presented through plaintiff's expert was that the anesthesiologist should ensure that the stethoscope is out of the stomach prior to its transection, the issue was not whether the nurse anesthetist's conduct was negligent but that it was his actions, and not that of any of the defendants, which resulted in the plaintiff's injuries. In any event, the evidence here regarding the actions of the nurse anesthetist was allowed because the focus of the plaintiff's case was the nature and scope of the duty of care, and the alleged breach of that duty, of the defendant doctors in providing medical direction to the nurse during the plaintiff's surgery, and not on the duty of care of the nurse to the plaintiff. Such evidence was properly admitted and, even if it was error to do so, it was harmless error. This claim is controlled by the Supreme Court's recent decision in Hurley v. Heart Physicians, P.C., 298 Conn. 371, 402-3 (2010). In that case the plaintiff made a product liability claim against the defendant Medtronic, Inc., regarding a pacemaker. The defendant claimed that the plaintiff's treating physicians had been negligent in support of its general denial that its conduct had caused the plaintiff's injuries. The jury found that the defendant was not liable and did not reach the issue of causation. The Court stated that: "We previously have held that when a jury does not reach an issue in returning a verdict, alleged improprieties relating to that issue are harmless. In Kalams v. Giacchetto, 268 Conn. 244, 246, 842 A.2d 1100 (2004), the plaintiff in a medical malpractice action appealed from the decision of the trial court granting the defendant's motion in limine precluding testimony from the plaintiff's expert witness. The jury returned a verdict for the defense, indicating on the interrogatory forms that the plaintiff had proved neither liability nor causation . . . On appeal, this court held that, even if the decision of the trial court granting the motion in limine was incorrect, the exclusion of the evidence was harmless because [t]he jury was not required to reach the issue of causation because, as evidenced by its answers to the jury interrogatories, it first determined that the defendant had not breached the standard of care. Accordingly, we conclude that it is not reasonably probable that testimony on causation would have affected the result." (Citations and internal quotation marks omitted.) Here the jury did not reach the issue of causation, finding that the defendants had not breached the standards of care, therefore the admission of evidence of the conduct of the nurse anesthetist, even if in error, was harmless.
As to each defendant the jury was asked: "Did Tatiana Sanchez prove by a fair preponderance of the evidence that the defendant . . . deviated from the accepted standard of care as alleged?" As to each defendant the jury responded "No." Therefore the jury did not answer the next interrogatory as to each defendant which asked: "Did Tatiana Sanchez prove by a fair preponderance of the evidence that the defendant . . .'s deviation from the accepted standard of care proximately caused her injury?"
In her third evidentiary claim the plaintiff argues that the court erred in refusing to take judicial notice of Connecticut statutes pertaining to the limitation of the duties and responsibilities of a nurse anesthetist acting under the direction of a physician. "[A] trial court's determination . . . to take judicial notice is essentially an evidentiary ruling . . . Our role in reviewing evidentiary rulings of the trial court is settled. The trial court has wide discretion in its rulings on evidence and its rulings will be reversed only if the court has abused its discretion or an injustice appears to have been done." (Citations and internal quotation marks omitted.) Dilieto v. County Obstetrics and Gynecology Group, P.C. 297 Conn. 105, 133 (2010). The plaintiff refers to General Statutes §§ 20-87a(b) and 20-9(a)(6)(B). Section 20-87a(b) provides that: "(b) Advanced nursing practice is defined as the performance of advanced level nursing practice activities that, by virtue of postbasic specialized education and experience, are appropriate to and may be performed by an advanced practice registered nurse. The advanced practice registered nurse performs acts of diagnosis and treatment of alterations in health status, as described in subsection (a) of this section, and shall collaborate with a physician licensed to practice medicine in this state. In all settings, the advanced practice registered nurse may, in collaboration with a physician licensed to practice medicine in this state, prescribe, dispense and administer medical therapeutics and corrective measures and may request, sign for, receive and dispense drugs in the form of professional samples in accordance with Sections 20-14c to 20-14e, inclusive, except that an advanced practice registered nurse licensed pursuant to Section 20-94a and maintaining current certification from the American Association of Nurse Anesthetists who is prescribing and administrating medical therapeutics during surgery may only do so if the physician who is medically directing the prescriptive activity is physically present in the institution, clinic or other setting where the surgery is being performed." Section 20-9(a)(6)(B) provides that: "a) No person shall, for compensation, gain or reward, received or expected, diagnose, treat, operate for or prescribe for any injury, deformity, ailment or disease, actual or imaginary, of another person, nor practice surgery, until he has obtained such a license as provided in Section 20-10, and then only in the kind or branch of practice stated in such license. (b) The provisions of this chapter shall not apply to . . . (6) Any person rendering service as (A) an advanced practice registered nurse if such service is rendered in collaboration with a licensed physician, or (B) an advanced practice registered nurse maintaining classification from the American Association of Nurse Anesthetists if such service is under the direction of a licensed physician . . ." The court did not take judicial notice of these statutes because they do not address the duties and responsibilities of a surgeon or an anesthesiologist, the defendants in this case. These statutes address the limitations on the permitted activities of an advanced practice registered nurse, who was not a defendant. Therefore these statutes would not have assisted the jury in its determination of the standard of care applicable or whether or not it had been breached. Much testimony was presented as to the standard of care of a physician while providing medical direction to an advanced practice registered nurse, which was the issue in the case. The statutes cited do not address this issue.
At the hearing on the post-trial motions the plaintiff requested an opportunity to submit a supplemental memorandum regarding General Statutes § 20-94c, which the court allowed. That statute provides that an advance practice nurse certified as a nurse anesthetist providing such services under the direction of a licensed physician is not required to carry his own malpractice insurance. The plaintiff claims that the statute, read in conjunction with General Statutes §§ 20-9 and 20-87a establishes that CRNAs (certified registered nurse anesthetists) in Connecticut are not independent professionals but work under the direction of a licensed physician. For the reasons stated in this opinion, this statute, even if brought to the attention of the court at trial, which it was not, would not change the court's conclusion here.
II. Errors Regarding the Instructions to the Jury
The remainder of the plaintiff's claims focus on the court's instructions to the jury. "The test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law . . . [The] [j]ury instructions need not be exhaustive, perfect, or technically accurate . . . Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict." (Citations and internal quotation marks omitted.) Daley v. Aetna Life Casualty Company, 249 Conn. 766, 786 (1999).
In her first claim of error as to the court's charge to the jury, the plaintiff claims that the court erred by refusing to instruct the jury that it could not consider the liability of a non-party unless the non-party was the sole proximate cause of the plaintiff's injury. The plaintiff cites Archambault v. Soneco/Northeastern, Inc., 287 Conn. 20 (2008). There the Court held "that a defendant is entitled to assert, under a general denial, that the negligence of an employer who is not a party to the action is the sole proximate cause of the plaintiff's injuries." Id., p. 37. The Court noted that: "This court has determined that a defendant has the right, under a general denial, to introduce evidence that the negligence of another was the sole proximate cause of the plaintiffs injury. See, e.g., Bernier v. National Fence Co., 176 Conn. 622, 629-30, 410 A.2d 1007 (1979) (defendant proceeding under general denial entitled to present evidence negating causation element of plaintiff's prima facie case); see also Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 6, 327 A.2d 583 (1973) (`A denial of a material fact places in dispute the existence of that fact. Even under a denial, a party generally may introduce affirmative evidence tending to establish a set of facts inconsistent with the existence of the disputed fact.')." Id., 33. The plaintiff claims that the court should have instructed the jury that it could not consider the actions of anyone else unless they were the sole proximate cause of the plaintiff's injuries. The court did not instruct the jury as requested because the focus of the jury's inquiry here was on whether the conduct of the named defendants breached the standard of care and whether that breach was a proximate cause of the plaintiff's injury. "[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." (Citation and internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 567 (2005). Charging the jury that they could not consider the conduct of anyone else unless it was the sole cause of the plaintiff's injury and that the defendants can only "exonerate" themselves if they prove such, would have improperly shifted the focus of the jury's inquiry to the conduct of a third person rather than of the defendants, and impose a burden of proof upon them that they did not have. The court did charge the jury that "[t]here could be more than one proximate cause of an injury." Thus the jury could still consider the role of the CRNA in bringing about the plaintiff's injury but that was not the issue the jury was to decide. The jury was asked to decide whether the negligent conduct of the named defendants was a proximate cause, that is, a substantial factor in bringing about the plaintiff's claimed injuries. "[T]he question to be answered by the fact finder is whether the various actors' allegedly negligent conduct was a cause in fact and a proximate cause of the plaintiffs injury in light of all the relevant circumstances." Barry v. Quality Steel Products, Inc., 263 Conn. 424, 442 (2003). In any event, this claim of error is controlled by the Court's decision in Hurley, supra. The jury did not reach the issue of causation because it determined that the defendants had not breached the standard of care, therefore any error this court may have made in its instructions on causation was harmless.
The plaintiff requested the following charge: "The defendants' conduct need not be the only cause, or the sole proximate cause, of the injuries suffered by the plaintiff in order to permit Ms. Sanchez to recover. To impose liability on the defendants, the failure on the defendant doctor or doctors' part, if you find such failure or failures, must be a substantial factor in producing the result that occurred. However, a concurrent cause does not relieve a defendant of liability. A concurrent cause is a cause that is contemporaneous and coexistent with the defendants' wrongful conduct and actively cooperates with the defendants' conduct to bring about the injury. On the other hand, if you conclude that the plaintiff's injuries were wholly caused by some other factor exclusive of the defendants' negligence, then you must return a verdict in favor of the defendants. The defendants argue that they were not responsible for the injuries suffered by Tatiana Sanchez, and that the sole proximate cause for her injuries was due to the actions of a third party. A defendant can avoid liability in a case such as this only if he or she can demonstrate that a third person was the sole proximate cause of the plaintiff's injuries. `Sole proximate cause' means that a third person's wrongful conduct supersedes all of the other parties' negligence so that it alone produced the injury. Thus, the doctrine only applies if a defendant can identify another's conduct as the exclusive cause of harm, and exonerate himself or herself from liability by shifting the cause entirely elsewhere. However, this is to be distinguished from a concurrent cause, which I explained earlier, where the negligence of one or more of the defendants creates the risk of a particular harm, or contributes to it, and is a substantial factor in causing the harm, even if other non-parties played a role." Plaintiff's Supplemental Requests to Charge, November 5, 2010.
The Supreme Court in Barry also abolished the use of the concept of superseding cause in our negligence jurisprudence, which concept is implicit in the plaintiff's proposed charge.
In her second claim of error as to the court's charge to the jury, the plaintiff claims that the court erred in not charging the jury under the doctrine of res ipsa loquitur. "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." (Citation and internal quotation marks omitted.) Boone v. William W. Backus Hospital, 567, 272 Conn. 551, 575-6 (2005). "Res ipsa loquitur instructions are appropriate when a plaintiff cannot prove with direct evidence the proximate cause of an injury, and has shown that the only reasonable explanation for the incident is that the injury must be attributable to the defendant's negligence. A res ipsa loquitur case is ordinarily merely one kind of case of circumstantial evidence, in which the jury may reasonably infer both negligence and causation from the mere occurrence of the event and the defendant's relation to it . . . Where there is evidence of specific negligence on the part of the defendant which would support a finding by the jury that such negligence was a proximate cause of the plaintiff's injury, the jury should not be instructed on the doctrine of res ipsa loquitur . . . We conclude that a res ipsa loquitur instruction is not appropriate where the plaintiff is not relying solely on circumstantial evidence, but instead alleges and introduces into evidence specific acts of negligence by the defendant." (Citations, footnote, and internal quotation marks omitted.) Pineau v. Home Depot, Inc., 45 Conn.App. 248, 257-8 (1997), cert. granted, 243 Conn. 902, appeal dismissed (certification improvidently granted), 245 Conn. 422 (1998). Here the plaintiff entered into evidence, through her expert witnesses, specific acts of negligence, that is, breaches of the standard of care, that she claimed on the part of each of the defendants. Therefore it was not appropriate to charge the jury on the doctrine of res ipsa loquitur.
The plaintiff requested the following charge: "Under the law, there is a doctrine known as `res ipsa loquitor' which in Latin means `the thing speaks for itself.' This doctrine allows the jury to infer negligence based on the circumstances of the incident even though no direct evidence of negligence has been introduced. That is, circumstantial evidence may prove that one or more of the defendants were more probably negligent than not, even without direct evidence of conduct by a specific defendant. Where common experience demonstrates that no injury would ordinarily occur unless there was some negligence on the part of the defendants charged with neglect, you may infer negligence from the injury and its physical cause, without direct proof pointing to an individual defendant. This applies if you find that the injury could not have occurred in the absence of negligence." Plaintiff's Proposed Jury Instructions, November 4, 2010.
In her third claim of error as to the court's charge to the jury the plaintiff claims that the court erred by failing to instruct the jury on the borrowed servant doctrine. "Under [the borrowed servant] rule, the person to whom the services of another's employee are loaned is responsible for the employee's negligent acts only so long as the temporary master actually exercises supervision and control over the servant." (Citations omitted.) Bria v. St. Joseph's Hospital, 153 Conn. 626, 630 (1966). The doctrine is essentially one of respondeat superior, which makes the master liable for the negligent acts of his servant. Id. Here neither the evidence nor the allegations of the complaint supported such a charge. The complaints alleged negligence by the defendants themselves, not by anyone within their supervision and control. (See, Count Two, Paragraph 15 of the Amended Revised Complaint in CV08-5016899-S and Count One, Paragraph 7, and Count Two, Paragraph 12 of the Revised Complaint in CV08-5017945-S.) Lastly, even assuming that the statutes require that the CRNA here performed his work only under the direction of a physician, that does not make that physician liable for his negligence. "The test is whether, in the particular service he is engaged to perform, he continues liable to the direction and control of his master or becomes subject to that of the party to whom he is lent or hired . . . In the case where a liveryman furnishes a carriage with horses and a driver, or an automobile and a chauffeur, and the only control exercised by the hirer is in directing where he wishes to be driven, it has been generally held that, in the absence of a specific direction which brings about the negligent act, the hirer is not responsible for such act of the driver, who remains the servant of the owner of the vehicle, and engaged in his business, which is that of renting such conveyance. When, however, an instrumentality, such as the truck here involved, is hired with an operator for use in some work undertaken by the hirer, who is in charge of the work and directs how it shall be carried on, the question whether the operator is subject to the direction and control of the owner or of the hirer of the truck is ordinarily one of fact to be determined from all the circumstances of the particular case. Ordinarily no one fact is decisive. The payment of wages; the right to hire or discharge; the right to direct the servant where to go, and what to do; the custody or ownership of the tools or appliances he may use in his work; the business in which the master is engaged or that of him said to be the special employer; none of these things give us an infallible test. At times any or all of them may be considered. The question remains: In whose business was the servant engaged at the time." (Citations and internal quotation marks omitted.) Tierney v. Correia, 120 Conn. 140, 145-6 (1935). The evidence here did not establish that any of the defendants had any authority to discharge the CRNA, determine his wages, direct what cases he was assigned to or to engage in any business other than that of his own employer. Therefore the borrowed servant rule was inapplicable as it was in Bria, supra, where the court held it was not applicable to the relationship between a surgeon and the hospital's nurses.
The plaintiff requested the following charge: "The responsibility for an employee can be transferred when an employee is on loan to another who assumes control over the employee's work. A physician takes the place of a nurse by supervising, controlling and directing the manner of the work during a surgical procedure. This doctrine makes the attending physician liable for the actions of nurses. In the field of anesthesia, a nurse anesthetist can only provide anesthesia services under the direction of a licensed physician which means, in this case, an attending anesthesiologist." Plaintiff's Proposed Jury Instructions, November 4, 2010.
In her forth claim of error as to the court's charge to the jury the plaintiff claims that the court's instruction requiring expert testimony regarding the plaintiff's informed consent claim constituted plain error. The court charged that: "A physician is required to obtain a patient's informed consent prior to performing a surgical procedure. In this regard, you must decide whether or not, based on all the evidence, the plaintiff has proved by a preponderance of the evidence that Dr. Barba failed to obtain her informed consent for the performance of the laparoscopic gastric bypass. The disclosure a physician is required to make prior to a procedure in order for there to be adequate informed consent includes (1) the nature of the procedure, (2) the material risks of the procedure, (3) the alternatives to the procedure, and (4) the anticipated benefits from the procedure. The plaintiff must first establish, through expert testimony, what were the risks, benefits and alternatives of the plaintiff's procedure. Then, you must decide whether Dr. Barba satisfied his duty and provided the plaintiff with sufficient information so she could make an informed decision about whether to undergo the surgery. The standard by which a physician obtains informed consent from a patient is not set by the medical community. Rather, the degree or extent of disclosures necessary to satisfy the duty must be proven in accordance with the following lay person standard: Did Dr. Barba provide the plaintiff with the information which a reasonable person would have found sufficient to make a voluntary and understanding decision to embark upon the contemplated surgical procedure?" In Levesque v. Bristol Hospital, Inc., 286 Conn. 234, 251 (2008), the court held that the trial court properly granted a motion for a directed verdict on the plaintiff's informed consent claim because the evidence adduced by the plaintiff through her expert witness was insufficient to inform the jury of the risks, benefits and hazards of the procedure. In Pafka v. Gibson, Judicial District of Hartford, Complex Litigation Docket at Hartford, Docket No. X03 CV05-5008249 (Miller, J., Mar. 23, 2009) [ 47 Conn. L. Rptr. 401], the court held: "In order to prevail, the plaintiff did not need expert testimony on the question of whether defendant had a duty to obtain her informed consent prior to performing the two surgeries . . . She was, however, required to present expert testimony to establish the risks of the procedure in question as well as the availability of less risky alternatives to the procedures performed by the defendant. In Logan v. Greenwich Hospital Ass'n., supra, plaintiff presented an expert witness who testified that there was a reasonable alternative procedure (an open biopsy) to the needle biopsy performed on her . . . This meant that the jury, if it believed this expert, could reasonably find that plaintiff was not made aware of a reasonable alternative . . . In Levesque v. Bristol Hospital, 286 Conn. 234 (2008), the Court made it even clearer that informed consent plaintiffs must prove through expert testimony `the risks, benefits and hazards' of the medical procedure at issue. If a plaintiff fails to present such expert testimony, the trier of fact is left to speculate as to two or three . . . of the elements of an informed consent claim." (Citations, footnotes and internal quotation marks omitted.) Therefore the court's charge in this matter was proper.
Conclusion
The plaintiff's motions for a new trial are denied.