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Wilkins v. Connecticut Childbirth and Women's Center

Court of Appeals of Connecticut

September 19, 2017

KRISTIN WILKINS ET AL.
v.
CONNECTICUT CHILDBIRTH AND WOMEN'S CENTER ET AL.

          Argued April 19, 2017

          Alinor C. Sterling, with whom were Sarah Steinfeld and, on the brief, Carey B. Reilly, for the appellant (named plaintiff).

          David J. Robertson, with whom were Christopher H. Blau and, on the brief, Madonna A. Sacco and Matthew M. Sconziano, for the appellee (defendant Women's Health Associates, P.C.).

          Lavine, Keller and Bishop, Js.

         Syllabus

         The plaintiff sought, in two actions that were consolidated for trial, to recover damages from the defendant W Co. for medical malpractice, claiming that W Co. and its agents were negligent in their care and treatment of the plaintiff immediately after the delivery of her daughter and in her post delivery care with regard to her pregnancy. Specifically, the plaintiff alleged, inter alia, that W Co. had failed to diagnose and to treat a fourth degree obstetrical laceration at the time of the delivery. The matter was tried to a jury, which returned a verdict in favor of W Co. From the judgments rendered thereon, the plaintiff appealed to this court. She claimed, inter alia, that the trial court abused its discretion in submitting a threshold interrogatory to the jury and in framing its answer to a question from the jury. Specifically, the first jury interrogatory asked the jury to determine whether the plaintiff had in fact sustained a fourth degree laceration and/or a severe tear of her vaginal tissue, her perineal skin and muscle, and anal sphincter muscle during labor and delivery, and it stated that if the answer was no, the jury was to return a verdict for W Co. During deliberations, the jury asked the court whether it was sufficient if it found that there was an injury to just one of those areas or whether it had to find an injury to all three of those areas. The court answered that in light of the use of the word ‘‘and'' in the interrogatory, the injury should be evaluated as a whole and not as separate injuries. Held that the trial court did not abuse its discretion in giving the jury the first interrogatory or in framing its answer to the jury's question: that court's use of the first interrogatory and its answer to the jury that the injury should be evaluated as a whole were consistent with the language of the plaintiff's complaint, the evidence adduced at trial and the plaintiff's arguments, and were permissible in order to elicit a determination of the material threshold fact, namely, whether the plaintiff had sustained a fourth degree laceration and/or severe tear to her vaginal tissue, perineal skin and muscle, and anal sphincter muscle at the time of giving birth, as alleged in the complaint, as the existence of such an injury was central to all of the claims alleged in the complaint, and the expert testimony presented focused on the existence of such an injury and did not relate that the plaintiff sustained anything less than a fourth degree laceration during labor; moreover, because the crux of the plaintiff's claim at trial was that she sustained such an injury and the success of her presentation at trial depended on the factual determination of whether she did indeed suffer the claimed injury, it was within the court's discretion to submit the interrogatory to the jury asking it to determine first whether it found that the plaintiff sustained such an injury, and the plaintiff could not claim that the court erred in framing the language utilized by the plaintiff herself as the core of her complaint.

         Procedural History

         Action, in two cases, to recover damages for personal injuries sustained by the named plaintiff as a result of the defendants' alleged medical malpractice, and for other relief, brought to the Superior Court in the judicial district of Danbury, where the plaintiff Billy Wilkins withdrew his claim for loss of consortium; thereafter, the actions were withdrawn as to the named defendant, and the cases were consolidated and tried to a jury before Truglia, J.; verdict for the defendant Women's Health Associates, P.C., in both cases; subsequently, the court denied the named plaintiff's corrected motion to set aside the verdict and rendered judgments in accordance with the verdict, from which the named plaintiff appealed to this court. Affirmed.

          OPINION

          BISHOP, J.

         In this medical negligence action, the plaintiff Kristin Wilkins[1] appeals from judgments in two cases, which were consolidated for trial, in favor of the defendant Women's Health Associates, P.C.[2] On appeal, she argues that the court abused its discretion in submitting a threshold jury interrogatory and in framing its answer to a question from the jury regarding that interrogatory, and, therefore, the jury verdict, returned in the defendant's favor, should be set aside and a new trial should be ordered. We disagree and, accordingly, we affirm the judgments of the trial court.

         The jury reasonably could have found the following facts. The defendant is a birthing center located in Dan-bury, which employs physicians and certified nurse-midwives, in addition to other medical professionals and support staff. The plaintiff gave birth to her second child on April 17, 2007, at the defendant birthing center, where she was attended to by staff, including Katy Maker, a certified nurse-midwife. Immediately following the birth, Maker visually and physically examined the plaintiff's vaginal and perineal areas[3] to determine whether there had been any obstetrical lacerations during birth.[4] Maker documented in the plaintiff's medical chart that the plaintiff had not sustained any obstetrical lacerations and that her perineum was intact.[5] The following day, April 18, 2007, at the plaintiff's home, Maker again visually and physically examined the plaintiff's vaginal and perineal areas to ensure that she was healing properly from birth. Maker did not document that the plaintiff had a laceration or any abnormalities. The plaintiff also returned to the defendant center on April 25, 2007 for a one week postpartum visit, performed by another certified nurse-midwife, Catherine Parisi. Parisi noted on the medical form during that visit that there were no problems with the plaintiff's perineum. The plaintiff next returned to the defendant center on May 31, 2007, for a six week follow-up examination, performed by Maker. Maker visually and physically examined the plaintiff's vaginal and perineal areas, and documented in the plaintiff's medical chart that she had ‘‘healed well'' from the birth, and recorded no lacerations or abnormalities.

         On August 1 or 2, 2007, the plaintiff returned to the defendant center again for an annual examination, at which time no lacerations or abnormalities were recorded. On September 4, 2007, the plaintiff was examined by a dermatologist, unaffiliated with the defendant, who documented that the plaintiff's genitalia were normal.

         On March 6, 2008, the plaintiff returned to the defendant center for an annual gynecological examination, performed by Parisi. Parisi noted on the medical chart under ‘‘Reason for Visit'' that it was an annual examination, and also, on the basis of how the plaintiff described her condition, that the plaintiff was ‘‘concerned about healing of laceration from birth last year, some rectal incontinence, [and] ‘loose' tissue in vagina.'' Parisi examined the plaintiff's perineal area and noted on the medical form that her external genitalia ‘‘showed abnormalities [and a] poorly healed laceration, '' though Parisi testified that she did not know whether a laceration had occurred at birth. Parisi referred the plaintiff to Kenneth Blau, a gynecologist specializing in pelvic reconstructive surgery and urogynecology, [6] who was the founder, managing partner, and president of the defendant. Blau examined the plaintiff on April 26, 2008, and recorded that the plaintiff's perineum was ‘‘totally absent, '' that she had ‘‘no sphincter, thin membrane between anus and vagina, '' and that she required ‘‘complete perineal/anal reconstruction . . . .'' He opined that the cause of such an injury was a ‘‘failed episiotomy restitution, '' though he testified that he was not sure whether the plaintiff had an episiotomy when she gave birth, and was relying on the plaintiff's own recollection.[7]

         The plaintiff later began treatment with another urogynecologist, Richard Bercik, who is unaffiliated with the defendant. On July 31, 2008, Bercik performed an abdominal examination, a pelvic examination, and a rectal examination of the plaintiff. He determined that the plaintiff's ‘‘external genitalia were gaping or essentially . . . wide open, '' that her ‘‘sphincter muscles, both the internal and external sphincters, were torn, '' that ‘‘she had a complete separation of [the] wall between the vagina and the rectum, '' that ‘‘[t]he muscles that would make up the perineal body . . . were no longer there . . . and there was, actually, an absent perineum, so there was no separation between the vagina and the rectum, '' and ‘‘[e]ssentially the lining of the rectum, the mucosa of the rectum and the mucosa of the vagina were . . . basically next to each other with no tissue in between . . . .'' Bercik testified that the plaintiff was suffering from a ‘‘cloaca, which is a term for a combined vagina and anus.'' He diagnosed the plaintiff with a fourth degree obstetrical laceration, which he opined dated back to the time of delivery, and was either un repaired, or was repaired, but the repair had subsequently broken down.

         A fourth degree laceration extends ‘‘from the vagina all the way through into the rectal mucosa, '' which is ‘‘the most internal part of the . . . anal sphincter.''[8]Bercik surgically repaired the fourth degree laceration on September 8, 2008.

         The plaintiff filed a complaint in this medical negligence action on February 19, 2010, alleging that the defendant and its agents were negligent in their care and treatment of the plaintiff immediately after the delivery of her daughter, on April 17, 2007, and in her postpartum examination on April 18, 2007. In her operative one count amended complaint, dated January 16, 2015, the plaintiff asserted that the defendant was negligent in the following ways: (1) ‘‘failed to adequately and properly care for, treat, diagnose, monitor and supervise the plaintiff . . . for delivery and post delivery care with regard to her pregnancy''; (2) ‘‘failed to inspect properly the vaginal, perineal and anal areas of the plaintiff . . . immediately following the vaginal delivery on April 17, 2007 and/or on April 18, 2007''; (3) ‘‘failed to diagnose a [fourth] degree and/or severe tear of the vaginal tissue, perineal skin/muscle and anal sphincter immediately following the vaginal delivery''; (4) ‘‘failed to inform the plaintiff that she had a [fourth] degree and/or severe tear of her vaginal tissue, perineal skin/muscle and anal sphincter immediately following the vaginal delivery''; (5) ‘‘failed to treat properly and in a timely manner the plaintiff's [fourth] degree and/ or severe tear of her vaginal tissue, perineal skin/muscle and anal sphincter immediately following the vaginal delivery''; and (6) ‘‘failed to refer properly and in a timely manner the plaintiff for treatment of the [fourth] degree tear and/or severe tear of her vaginal tissue, perineal skin/muscle and anal sphincter immediately following the vaginal delivery . . . .'' The plaintiff alleged many physical injuries, including an un repaired fourth degree obstetrical laceration, fecal incontinence, surgery, ‘‘tear of the vaginal tissue, perineal skin, perineal muscle, anal sphincter and/or rectal tissue, '' and absent perineum.[9]

         The jury trial took place over the course of nineteen days, at which the plaintiff called to testify, inter alia, the plaintiff, Bercik, and Blau, and entered into evidence the video depositions of many of the defendant's nurse-midwives, including Maker and Parisi. The plaintiff's theory of the case, that the defendant failed to diagnose and treat a fourth degree laceration at the time of the delivery, vastly differed from the defendant's theory, that the plaintiff did not suffer a fourth degree obstetrical laceration during delivery.[10] The defendant moved for a directed verdict on January 20, 2015, alleging, inter alia, that the plaintiff failed to establish that the defendant was negligent in its care of the plaintiff. The court, Truglia, J., denied the defendant's motion.

         At the end of the evidence portion of the trial, on February 24, 2015, the court held a charge conference to discuss a draft of the proposed jury charge and jury interrogatories. The first jury interrogatory suggested by the court purported to ask the jury to determine whether the plaintiff had in fact sustained a fourth degree laceration during labor and delivery on April 17, 2007. The plaintiff objected to the interrogatory as creating a prejudicial threshold issue. The plaintiff also argued that not all of the allegations in the complaint specified that there was a fourth degree laceration, and, therefore, the jury did not necessarily have to find that there was such an injury in order to return a verdict in the plaintiff's favor. In the event that the interrogatory was given to the jury, however, the plaintiff requested that the court add the clause ‘‘and/or severe tear of her vaginal tissue, her perineal skin and muscle and anal sphincter muscle'' after ‘‘fourth degree laceration'' in order to conform to the language used in the complaint.

         The defendant, however, agreed with the court's use of this first interrogatory stating: ‘‘[I]t is the definitive question that was asked of all the experts. If there was no fourth degree laceration . . . or no perineal skin muscle and anal sphincter [tear] during labor and delivery on April [17, 2007] . . . [then] the whole case is gone.'' The defendant further stated that there was no claim in the case that the plaintiff had anything other than a fourth degree laceration, and there was ‘‘no testimony about [a first] or a second or a third'' degree laceration, and that ...


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