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Arroyo v. University of Connecticut Health Center

Court of Appeals of Connecticut

August 15, 2017

JOSE ARROYO ET AL.
v.
UNIVERSITYOF CONNECTICUT HEALTH CENTER ET AL.

          Argued May 16, 2017

         Procedural History

         Action to recover damages for, inter alia, the defendants' medical malpractice, and for other relief, brought to the Superior Court in the judicial district of Hartford and tried to the court, Scholl, J.; judgment for the plaintiffs; thereafter, the court granted the defendants' motion for a collateral source reduction, and the defendants appealed to this court. Affirmed.

          Michael G. Rigg, for the appellants (defendants).

          Michael J. Walsh, for the appellees (plaintiffs).

          Alvord, Prescott and Pellegrino, Js.

         Syllabus

         The plaintiffs sought to recover damages from the defendant health center and the defendant state of Connecticut for medical malpractice for injuries sustained by the plaintiff A during a vasectomy. The plaintiffs claimed that the urologist employed by the defendants who performed the surgery, P, negligently injured A's testicular artery, resulting in the removal of one of his testicles. Following a trial to the court, the trial court rendered judgment for the plaintiffs and the defendants appealed to this court. Prior to bringing this action, the plaintiffs filed a notice of claim with the Claims Commissioner pursuant to statute (§ 4-147), which was accompanied by a certificate of good faith, as required by statute (§ 4-160 [b]) in medical malpractice actions against the state, and the commissioner subsequently granted the plaintiffs permission to bring an action against the defendants. Held:

         1. The defendants could not prevail on their claim that because the trial court rendered judgment for the plaintiffs on a theory of liability materially different from that which was alleged in their notice of claim, and for which they had received a waiver of sovereign immunity from the commissioner, the court was barred, under the doctrine of sovereign immunity, from rendering judgment for the plaintiffs on that theory of liability: given that the plaintiffs properly filed a timely notice with the commissioner seeking permission to pursue a medical malpractice action against the defendants and attached a good faith certificate to the notice, the commissioner, pursuant to § 4-160 (b), was required to grant the plaintiffs permission to bring their action, regardless of how precisely the plaintiffs worded the basis of their medical malpractice claim in their notice, and the fact that the notice of claim included more details, which were not in conflict with the theory pursued at trial, was not fatal to the plaintiffs' case; moreover, § 4-147 (2) expressly provides that the claim in the notice need not be particularized and requires only that the notice contain a concise statement of the basis of the claim, and the defendants failed to demonstrate that the basis of the claim in the notice filed with the commissioner was materially different from the basis of the plaintiffs' claim at trial.

         2. This court declined to review the defendants' claim, raised for the first time on appeal, that the trial court improperly awarded damages to the plaintiffs on a theory of liability that was pursued at trial but was not alleged in their complaint, the defendants having waived their objection to any variance between the pleadings and the evidence by failing to object accordingly at trial.

         3. The defendants' claim that the plaintiffs presented insufficient evidence on the issue of causation was unavailing; the testimony of the plaintiffs' expert, B, on causation relied on substantial evidence that was largely unchallenged by the defendants, B supported his opinion on causation through a method of diagnosis that involved 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, and established the causal relation between A's injury and its later physical effects, and the court, as the trier of fact, was free to credit B's explanation for the cause of A's injury over that of the defendants' expert, and properly determined that the plaintiffs had satisfied their burden of proving that P injured A's testicular artery during the vasectomy and caused necrosis of A's testicle.

          OPINION

          PRESCOTT, J.

         In this action seeking damages for medical malpractice relating to a vasectomy, the defendants, the University of Connecticut Health Center (health center) and the state of Connecticut, appeal, following a bench trial, from the judgment of the trial court rendered in favor of the plaintiffs, Jose Arroyo and Marie Arroyo, [1] in the amount of $386, 249.81.[2] The defendants claim that the court improperly (1) rendered judgment on a cause of action for which the plaintiffs had not obtained a waiver of sovereign immunity from the state's Claims Commissioner (commissioner), [3] (2) awarded damages on a theory of liability that was not alleged in the plaintiffs' Superior Court complaint, and (3) concluded that the plaintiffs had satisfied their burden of proving that the defendants' employee, Peter Albertsen, a urologist, had negligently injured Arroyo's testicular artery. We disagree with the defendants' claims and, accordingly, affirm the judgment of the trial court.

         The following facts, as found by the court, and procedural history are relevant to our resolution of the defendants' claims. On April 1, 2013, Arroyo underwent a vasectomy performed by Dr. Albertsen at the health center. Immediately after the procedure, Arroyo suffered pain that continued, unabated, for several days. Subsequently, on April 4, 2013, he went to the emergency room at Saint Francis Hospital and Medical Center (hospital), where it was discovered that his left testicle was necrotic[4] because of a lack of blood flow through the testicular artery. This required Arroyo to undergo an orchiectomy, or surgical removal of the testicle, that same day. The surgery was performed by Dr. Marlene A. Murphy-Setzko, a urologist at the hospital. This procedure resulted in discomfort and pain for Arroyo from protruding sutures and infection, which, in turn, required him to undergo further treatments over a period of five months.

         Sovereign immunity generally prevents a litigant from suing the state for money damages without its consent. See Morneau v. State, 150 Conn.App. 237, 246, 90 A.3d 1003, cert. denied, 312 Conn. 926, 95 A.3d 522 (2014). Thus, in order to obtain permission to sue the defendants for money damages, the plaintiffs filed a notice of claim on September 13, 2013, with the commissioner pursuant to General Statutes § 4-147.[5] The notice was accompanied by a certificate of good faith, as required in medical malpractice claims brought against the state pursuant to General Statutes § 4-160 (b), [6] which provides in relevant part: ‘‘In any claim alleging malpractice against the state, a state hospital or against a physician, surgeon . . . or other licensed health care provider employed by the state, the attorney or party filing the claim may submit a certificate of good faith to the Claims Commissioner in accordance with section 52- 190a. If such a certificate is submitted, the Claims Commissioner shall authorize suit against the state on such claim.''

         In their notice of claim filed with the commissioner, the plaintiffs alleged that ‘‘[d]uring the procedure Dr. Albertsen failed to identify, dissect and ligate the vasdeferens, but instead he incorrectly dissected and ligated surrounding vascular structures thereby depriving, restricting and severing blood flow to [Arroyo's] left testicle.'' In an order dated November 6, 2013, the commissioner granted the plaintiffs permission to sue the defendants.

         Subsequently, the plaintiffs commenced the present action against the defendants in Superior Court on January 29, 2014. The complaint, which was accompanied by a certificate of good faith as required by General Statutes § 52-190a, [7] contained two counts, the first sounding in medical malpractice on behalf of Arroyo and the second sounding in loss of consortium on behalf of Marie.

         Count one mirrored the language used in the notice of claim filed with the commissioner, alleging that ‘‘Dr. Albertsen failed to identify, dissect and ligate the vas deferens, but instead he incorrectly dissected and ligated surrounding vascular structures, thereby depriving, restricting and severing blood flow to the plaintiff's left testicle.'' It also alleged that Dr. Albertsen was negligent in one or more of six ways, those being that he failed ‘‘[1] to properly identify the anatomy of the testicle, both before and during the procedure, by all means available to him, including palpation and visualization, to ensure that he adequately identified the spermatic cord and the vas deferens prior to his attempt to dissect the vas deferens . . . [2] to properly isolate and free the vas deferens from the surrounding anatomical structures prior to attempts to dissect the vas deferens . . . [3] to properly confirm that he had, in fact, identified the vas deferens by all means available to him, including palpation and visualization, before his attempts to dissect the vas deferens . . . [4] to dissect and ligate the vas deferens, and instead he incorrectly dissected and ligated surrounding blood vessels and vascular structures, thereby depriving, restricting and severing blood flow to the left testicle . . . [5] to timely and properly realize that he had, in fact, failed to dissect the vas deferens, but instead had dissected vascular structures in the testicle, and proceeded to conclude the procedure and discharge the patient from the facility; and . . . [6] to properly respond to and investigate the patient's repeated complaints of unusual and inordinate pain, both during and following the procedure in question, which investigation in all likelihood would have led him to the realization that he had failed to sever and dissect the appropriate vas deferens and instead severed and dissected vascular structures necessary for the continued viability of the left testicle.''

         The case progressed to pretrial discovery. During this time, the plaintiffs disclosed Dr. Michael Brodherson as their expert witness, and the defendants disclosed Dr. Wayne Glazier as their expert witness. The parties deposed both experts prior to trial.

         Thereafter, on November 4, 2015, the trial commenced. The court heard testimony from several witnesses, including Dr. Albertsen, Dr. Brodherson, and Dr. Glazier. The evidence showed that during Arroyo's vasectomy, Dr. Albertsen failed to properly identify, dissect, and ligate the vas deferens in the left testicle and, instead, dissected and ligated a section of ‘‘vascular structures.'' There was no disagreement that the blood flow to the left testicle had been obstructed at the time that Arroyo was seen by Dr. Murphy-Setzko at the hospital on April 4, 2013, and that the loss of blood flow caused the necrosis of Arroyo's testicle. Rather, the parties disputed the cause of the injury. The plaintiffs argued that the injury to the testicular artery occurred during the vasectomy on April 1, 2013, and the defendants argued that testicular torsion[8] caused the loss of blood flow, meaning that the injury occurred sometime after the vasectomy, between April 1 and 4, 2013.

         In a short memorandum of decision dated November 19, 2015, the court rendered judgment in favor of the plaintiffs. Specifically, the court concluded that the plaintiffs had established by a fair preponderance of the evidence that Dr. Albertsen was negligent in his treatment of Arroyo in that he ‘‘deviated from the standard of care of a board certified urologist in not isolating the vas deferens and [thereby] injuring the testicular artery to the left testicle of [Arroyo] during his performance of a vasectomy . . . .'' This appeal followed.[9]Additional facts and procedural history will be set forth as necessary.

         I

         The defendants claim for the first time on appeal[10]that the court improperly rendered judgment for the plaintiffs on a theory of liability materially different from that which was alleged in their notice of claim filed with the commissioner and, thus, from that which they had received a waiver of sovereign immunity. Specifically, the defendants argue that in alleging that Dr. Albertsen ‘‘dissected and ligated . . . vascular structures, thereby . . . severing blood flow to [Arroyo's] left testicle, '' the ‘‘vascular structure'' to which the plaintiffs must have been referring in their notice of claim was the testicular artery because the only ‘‘vascular structure'' that could have resulted in a lack of blood flow to the testicle was the testicular artery. The defendants then reason that because the plaintiffs' theory of liability presented at trial was that Dr. Albertsen dissected and ligated a vein, not the testicular artery, and injured the nearby testicular artery in turn by unintentionally cauterizing[11] it, the plaintiffs did not obtain a waiver of sovereign immunity for the claim presented to the court.[12] We disagree.

         ‘‘The principle that the state cannot be sued without its consent, or sovereign immunity, is well established under our case law.'' (Internal quotation marks omitted.) Morneau v. State, supra, 150 Conn.App. 246. Therefore, ‘‘[o]ur Supreme Court expressly has stated that a plaintiff seeking monetary damages against the state must first obtain authorization from the Claims Commissioner.'' Id., 248. Section 4-147 provides in relevant part: ‘‘Any person wishing to present a claim against the state shall file with the Office of the Claims Commissioner a notice of claim . . . containing the following information: (1) The name and address of the claimant; the name and address of his principal, if the claimant is acting in a representative capacity, and the name and address of his attorney, if the claimant is so represented; (2) a concise statement of the basis of the claim, including the date, time, place and circumstances of the act or event complained of; (3) a statement of the amount requested; and (4) a request for permission to sue the state, if such permission is sought. . . . Such notice shall be for informational purposes only and shall not be subject to any formal or technical requirements, except as may be necessary for clarity of presentation and facility of understanding.'' (Emphasis added.)

         In most cases, ‘‘[t]he [commissioner] may deny or dismiss the claim, order immediate payment of a claim not exceeding [$7500], recommend to the General Assembly payment of a claim exceeding [$7500] or grant permission to sue the state.'' Morneau v. State, supra, 150 Conn.App. 248; see General Statutes (Rev. to 2013) § 4-158 (b). Notably, however, as previously discussed herein, § 4-160 (b), which codified No. 98-76 of the 1998 Public Acts (P.A. 98-76), provides in relevant part that ‘‘[i]n any claim alleging malpractice against the state, a state hospital or against a physician . . . or other licensed health care provider employed by the state, the attorney or party filing [a malpractice] claim may submit a certificate of good faith to the Office of the Claims Commissioner in accordance with section 52-190a, '' and ‘‘[i]f such a certificate is submitted, the [commissioner] shall authorize suit against the state on such claim.'' (Emphasis added.)

         ‘‘Before § 4-160 (b) was enacted, medical malpractice claims were treated like other claims against the state under . . . the General Statutes. . . . [T]he effect of § 4-160 (b) was to deprive the . . . commissioner of his broad discretionary decision-making power to authorize suit against the state in cases where a claimant has brought a medical malpractice claim and filed a certificate of good faith. Instead, § 4-160 (b) requires the . . . commissioner to authorize suit in all such cases. In other words, the effect of the statute was to convert a limited waiver of sovereign immunity to medical malpractice claims, subject to the discretion of the . . . commissioner, to a more expansive waiver subject only to the claimant's compliance with certain procedural requirements.'' (Citations omitted; emphasis altered; footnote omitted.) D'Eramo v. Smith, 273 Conn. 610, 622, 872 A.2d 408 (2005).

         As a general matter, ‘‘[s]overeign immunity relates to a court's subject matter jurisdiction over a case, and therefore presents a question of law over which we exercise de novo review.'' (Internal ...


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