Ashmore v. Hartford Hospital

          Argued May 4, 2018

         Procedural History

         Action to recover damages for, inter alia, medical malpractice, brought to the Superior Court in the judicial district of Waterbury, where the complaint was withdrawn as to the defendant Hartford Healthcare Corporation; thereafter, the case was tried to a jury before Roraback, J.; verdict for the plaintiffs; subsequently, the court, Roraback, J., denied the named defendant's motion for remittitur and rendered judgment in accordance with the verdict, and the named defendant appealed. Reversed; further proceedings.

          John L. Cordani, Jr., with whom was Isabella M. Squicciarini, for the appellant (named defendant).

          James J. Healy, with whom was Eric P. Smith, for the appellees (plaintiffs).

          Christopher P. Kriesen and Lorinda S. Coon, and Geraldine Macaisa and Chelsea Sousa, certified legal interns, filed a brief for the Connecticut Defense Lawyers Association as amicus curiae.

          Minor C. Sterling, Jeffrey Wisner, Matthew Blurnen-thal, Julie V. Pinette and Karen K. Clark filed a brief for the Connecticut Trial Lawyers Association as amicus curiae.

          Robinson, C. J., and Palmer, McDonald, D'Auria, Mullins and Kahn, Js. ^[*]

          OPINION

          PALMER, J.

         In this wrongful death action alleging medical malpractice, the named defendant, Hartford Hospital, ^[1] appeals from the judgment of the trial court, which denied a motion for remittitur after a jury awarded $1.2 million in noneconomic damages to the named plaintiff, Marjorie Ashmore, as the administratrix of the estate of the decedent, ^[2] her late husband William Ashmore, and $4.5 million to the plaintiff for her own loss of spousal consortium. The defendant contends that, in the absence of exceptional or unusual circumstances that are not applicable in this loss of consortium award ordinarily should not substantially exceed the corresponding wrongful death award to the directly injured spouse. We agree and, accordingly, reverse the judgment of the trial court.

         The following facts, which the jury reasonably could have found, and procedural history are relevant to our disposition of this appeal. In 2011, the decedent visited the defendant hospital for routine elective heart surgery. The surgery was completed successfully and without complication. During the procedure, the surgeon connected standard epicardial pacing electrodes to the decedent's heart to assist with heart rate and rhythm management in the event that he should experience any postoperative complications. In the case of an abnormal rhythm, such wires can be quickly and easily connected to a system that provides a small electrical stimulation to return the heartbeat to its normal rhythm.

         The decedent initially recovered well, but, during the second night at the hospital following the operation, he began to experience atrial fibrillation, a common postoperative condition. Over the course of the next hour, his heart rate dropped precipitously, he displayed various signs of serious distress, and alarms repeatedly sounded. Although this was precisely the condition for which the epicardial wires had been installed, hospital staff failed to connect the wires or to contact the decedent's surgeon until after the decedent had experienced cardiac arrest. Hospital staff ultimately were able to restart his heart using electrical shock, but the lack of a heartbeat for seventeen minutes resulted in oxygen deprivation so severe that the decedent had to be placed on life support. He never regained consciousness. Several days later, with no reasonable possibility that her husband of forty-five years would recover, the plaintiff was forced to make the agonizing decision to terminate the decedent's life support. He died moments later.

         The plaintiff filed the present action, alleging wrongful death in her capacity as executor of the decedent's estate, and loss of spousal consortium in her individual capacity. The case was tried to a jury, which returned a verdict for the plaintiff. The jury found that the negligence of the defendant's employees was the proximate cause of the decedent's death and awarded the decedent's estate approximately $75, 000 in economic damages and $1.2 million in noneconomic damages. The jury also awarded the plaintiff $4.5 million in damages for loss of consortium.

         The defendant then filed a motion seeking a remittitur of the loss of consortium award pursuant to General Statutes §§ 52-216a and 52-228c, and Practice Book § 16-35. The trial court denied the motion and rendered judgment in accordance with the jury verdict. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. Additional facts will be set forth as necessary.

         I

         As an initial matter, we address the parties' disagreement as to the standard that governs appellate review of a trial court's decision to grant or deny a motion for remittitur. The plaintiff, relying on cases such as Munn v. Hotchkiss School, 326 Conn. 540, 574, 165 A.3d 1167 (2017), and Patino v. Birken Mfg. Co., 304 Conn. 679, 706, 41 A.3d 1013 (2012), contends that binding precedent establishes, and our recent cases reaffirm, that a trial court's decision to grant or deny remittitur is reviewed according to a deferential abuse of discretion standard. The defendant invites us to overrule those cases and to adopt a plenary standard of review or, failing that, to review de novo the decision of the trial court in the present case insofar as that decision was predicated on an incorrect legal determination. We decline the defendant's invitation to overrule Munn, Patino, and their many progenitors.

         A

         As we explained in Saleh v. Ribeiro Trucking, LLC, 303 Conn. 276, 32 A.3d 318 (2011), the standards that govern appellate review of a trial court's granting or denial of a motion for remittitur must be understood in light of the underlying legal standards that govern remittitur itself. See id., 280, 284-85. We frequently have stated that, "[i]n determining whether to order remittitur, the trial court is required to review the evidence in the light most favorable to sustaining the verdict. . . . Upon completing that review, the court should not interfere with the jury's determination except when the verdict is plainly excessive or exorbitant. . . . The ultimate test [that] must be applied to the verdict by the trial court is whether the jury's award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury [was] influenced by partiality, prejudice, mistake or corruption. . . . The court's broad power to order a remittitur should be exercised only when it is manifest that the jury [has awarded damages that] are contrary to law, not supported by proof, or contrary to the court's explicit and unchallenged instructions." (Internal quotation marks omitted.) Munn v. Hotchkiss School, supra, 326 Conn. 575-76. "Accordingly, we consistently have held that a court should exercise its authority to order a remittitur rarely-only in the most exceptional of circumstances . . . and [when] the court can articulate very clear, definite and satisfactory reasons . . . for such interference." (Citation omitted; internal quotation marks omitted.) Id., 575.

         Also relevant to our review is § 52-216a, which provides the general statutory authority for remittitur. That statute provides in relevant part that, "[i]f the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial. ..." (Emphasis added.) General Statutes § 52-216a.

         With respect to appellate review, in Saleh, we explained that "our review of the trial court's decision [to grant or deny remittitur] requires careful balancing." Saleh v. Ribeiro Trucking, LLC, supra, 303 Conn. 285. "[T]he decision whether to reduce a jury verdict because it is excessive as a matter of law . . . rests solely within the discretion of the trial court. . . . [T]he same general principles apply to a trial court's decision to order a remittitur. [Consequently], the proper standard of review ... is that of an abuse of discretion. . . . [T]he ruling of the trial court ... is entitled to great weight and every reasonable presumption should be given in favor of its correctness." (Citation omitted; internal quotation marks omitted.) Id., 281-82. The chief rationale that has been articulated in support of this deferential standard of review is that the trial court, having observed the trial and evaluated the testimony firsthand, is better positioned than a reviewing court to assess both the aptness of the award and whether the jury may have been motivated by improper sympathy, partiality, or prejudice. See, e.g., Munn v. Hotchkiss School, supra, 326 Conn. 577; W. Maltbie, Connecticut Appellate Procedure (2d Ed. 1957) § 187, pp. 230-31; W. Maltbie, supra, § 197, pp. 244-45.

         Even under this deferential standard of review, however, we have not shied away from ordering remittitur when the record failed to support the jury's award of damages. Indeed, "[t]his court has a long history of ordering plaintiffs to accept a remittitur or [to] submit to a new trial." Earlington v. Anastasi, 293 Conn. 194, 208, 976 A.2d 689 (2009); see also Doroszka v. Lavine, 111 Conn. 575, 579, 150 A. 692 (1930) ("[a]s early as [1838], and frequently since, we have ordered a new trial unless the plaintiff would remit a part of the verdict"); W. Maltbie, supra, § 200, p. 248 ("[t]he [S]upreme [C]ourt often orders a new trial unless the plaintiff remits a certain amount of the damages").

         B

         The defendant does not dispute that we have, in most instances, reviewed decisions to grant or deny remittitur according to this deferential standard of review. Nevertheless, the defendant emphasizes that the legislature has determined that remittitur should be granted only when a verdict is deemed to be "excessive as a matter of law"; General Statutes § 52-216a; accord General Statutes § 52-228c;^[3] and argues that appellate courts typically review legal determinations de novo rather than for an abuse of discretion. The defendant also draws our attention to Justice McDonald's concurrence in Munn, which highlighted the need for clarification of existing remittitur standards. See Munn v. Hotchkiss School, supra, 326 Conn. 584-88 (McDonald, J., concurring). The defendant therefore invites us to revisit and overrule Munn and our other decisions concerning remittitur.

         For the following reasons, we reject the defendant's argument that the use of the phrase "excessive as a matter of law" in §§ 52-216a and 52-228c evinces a legislative intent to abrogate the common law and to prescribe a de novo standard of review of remittitur decisions. First, the defendant's argument reflects a misunderstanding of the concept of a "matter of law" or "question of law," as those expressions are used in the context of appellate review. This court is authorized to find facts only under a few limited circumstances in which we have original jurisdiction, such as in cases challenging the reapportionment of state electoral districts; see Conn. Const, amend. XXVI (d); and challenges to the rulings of election officials in connection with certain federal elections. See General Statutes § 9-323. In all other matters, our authority is limited to the correction of alleged legal errors. See, e.g., General Statutes § 52-263; Morgan v. Morgan, 104 Conn. 412, 417-18, 133 A. 249 (1926). What this means is that, in the run-of-the-mill civil or criminal appeal, all of the questions that we resolve are, strictly speaking, questions of law. See W. Maltbie, supra, § 8, p. 9; E. Prescott, Connecticut Appellate Practice and Procedure (5th Ed. 2016) § 8-3:1.1, pp. 461-62. This is true even with respect to more fact bound claims, such as sufficiency of the evidence challenges and challenges to the trial court's discretionary rulings, which are subject to highly deferential appellate review.^[4] In fact, there are numerous contexts, aside from remittitur, in which we have stated either that we will review for abuse of discretion a determination that a trial court made as a matter of law or that we are unable to say, as a matter of law, that a trial court abused its discretion in a certain regard.^[5] Accordingly, the statutory reference to "a matter of law" does not, in and of itself, necessitate a plenary standard of review.

         Indeed, long before the enactment of § 52-216a, this court explained that, although the question of whether an award of damages is excessive is one of law, we will review a trial court's determination thereof only for an abuse of discretion. E.g., Nash v. Hunt, 166 Conn. 418, 428-29, 352 A.2d 773 (1974); see Gorczyca v. New York, New Haven & Hartford Railroad Co., 141 Conn. 701, 703, 109 A.2d 589 (1954); see also Mansfield v. New Haven, 174 Conn. 373, 375, 387 A.2d 699 (1978) ("[i]t cannot be held, as a matter of law, that the jury's award does not fall within the necessarily uncertain limits of just damages or that the court abused its discretion in refusing to set aside the verdict as inadequate"). Accordingly, because § 52-216a merely codified the preexisting common-law standards; see, e.g., Wickers v. Hatch, 252 Conn. 174, 187, 745 A.2d 789 (2000); there is no reason to conclude, on the basis of the statutory text, that the legislature intended to modify the established standard of review. See, e.g., Matihiessen v. Vanech, 266 Conn. 822, 838, 836 A.2d 394 (2003) ("[although] the legislature's authority to abrogate the common law is undeniable, we will not lightly impute such an intent to the legislature" [internal quotation marks omitted]).

         Moreover, the fact that this court has continued to apply the traditional standard of review to remittitur decisions for more than thirty-five years since the enactment of § 52-216a, with the acquiescence of the legislature, provides further support for the conclusion that the statute was not intended to impose a de novo standard of appellate review. "[I]n evaluating the force of stare decisis, our case law dictates that we should be especially wary of overturning a decision that involves the construction of a statute. . . . When we construe a statute, we act not as plenary lawgivers but as surrogates for another policy maker, [that is] the legislature. In our role as surrogates, our only responsibility is to determine what the legislature, within constitutional limits, intended to do. Sometimes, when we have made such a determination, the legislature instructs us that we have misconstrued its intentions. We are bound by the instructions so provided. . . . More often, however, the legislature takes no further action to clarify its intentions. Time and again, we have characterized the failure of the legislature to take corrective action as manifesting the legislature's acquiescence in our construction of a statute. . . . Once an appropriate interval to permit legislative reconsideration has passed without corrective legislative action, the inference of legislative acquiescence places a significant jurisprudential limitation on our own authority to reconsider the merits of our earlier decision." (Internal quotation marks omitted.) Spiotti v. Wolcott, 326 Conn. 190, 201- 202, 163 A.3d 46 (2017).

         The argument of legislative acquiescence is especially compelling with respect to the remittitur statutes. The legislature amended § 52-216a in 1982 to include the "excessive as a matter of law" language. Public Acts 1982, No. 82-406, § 3 (P.A. 82-406). Over the following two decades, this court decided numerous cases in which we continued to deferentially review additur and remittitur decisions governed by § 52-216a. See, e.g., Gladu v. Sousa, 252 Conn. 190, 191-93, 745 A.2d 798 (2000); Wickers v. Hatch, supra, 252 Conn. 181; Meaney v. Connecticut Hospital Assn., Inc., 250 Conn. 500, 513, 735 A.2d 813 (1999); Black v. Goodwin, Loomis & Britton, Inc., 239 Conn. 144, 167, 681 A.2d 293 (1996); Bartholomew v. Schweizer, 217 Conn. 671, 687, 587 A.2d 1014 (1991); Champagne v. Raybestos-Manhattan, Inc., 212 Conn. 509, 557, 562 A.2d 1100 (1989). At no time did the legislature amend the statute to clarify that remittitur decisions made pursuant to § 52-216a were to be afforded plenary review on appeal. Moreover, in 2005, when the legislature enacted § 52-228c; see Public Acts 2005, No. 05-275, § 10; it again used the "excessive as a matter of law" language to characterize the standard that governs remittitur decisions, in that case in the medical malpractice context. If the legislature, presumably aware of this court's remittitur jurisprudence; see, e.g., Efstathiadis v. Holder, 317 Conn. 482, 492, 119 A.3d 522 (2015); had wanted to ensure that remittitur decisions made pursuant to § 52-228c would be reviewed de novo, it could have expressly so required. See, e.g., General Statutes § 45a-100 (l) (mandating de novo review by Superior Court of federal firearms disability determination by Probate Court). Instead, legislators indicated that their intent was merely to codify the common-law standards that courts had long applied in the remittitur context. See 48 H.R. Proa, Pt. 31, 2005 Sess., pp. 9458, 9504-9505, remarks of Representative Michael P. Lawlor. In view of this history, and given the strong policy arguments in favor of affording deference to the trial court's determination as to whether a damages award is so excessive as to suggest that the jury was motivated by sympathy, partiality, or prejudice; see Bartholomew v. Schweizer, supra, 217 Conn. 687; we decline the defendant's invitation to overrule our recent remittitur decisions.^[6]

         As we explain more fully in part II of this opinion, however, we do agree with the defendant that the present appeal turns largely on a purely legal question, namely, whether a loss of consortium award in a wrongful death action presumptively should not be substantially greater than the noneconomic damages awarded for the wrongful death itself. Our review of that question is unquestionably plenary. See, e.g., Poole v. Waterbury, 266 Conn. 68, 82, 831 A.2d 211 (2003); Wichers v. Hatch, supra, 252 Conn. 181-82; see also W. Maltbie, supra, § 188, p. 231 (it is legal error when trial court decides motion to set aside verdict on basis of misconception of law).

         II

         We turn next to the substance of the defendant's claim. For the reasons set forth hereinafter, we agree with the defendant that a spousal loss of consortium award in a wrongful death action presumptively should not be substantially greater than the wrongful death award^[7] itself. We also agree with the defendant that, even when the evidence is considered in the light most favorable to sustaining the verdict and the trial court's denial of remittitur, this is not among those unusual cases in which a substantially greater loss of consortium award may be justified.

         A

         We begin by briefly reviewing the history of and modern rules governing loss of spousal consortium claims. "The loss of consortium action had its genesis in early Roman [l]aw, when the paterfamilias, or head of the household, had an action for violence committed against his wife, children or slaves on the theory they were so identified with him that the wrong was to himself. By the [thirteenth [c]entury, the common law had adopted the idea in part, altering it to a damage[s] action for loss of services of the servant because of violence. By the early[s] eventeenth [c]entury in England, since the station of a wife under early common law was that of a valuable servant of the husband who could not sue in her own name, the action was extended to include the loss of her domestic services. Over the years, emphasis shifted away from loss of services toward a recognition of the intangible elements of domestic relations, such as companionship and affection." Taylor v. Beard, 104 S.W.3d 507, 508-509 (Tenn. 2003).

         It was not until 1950, more than one century after a majority of states had enacted married women's property acts, that the first American court held that, in view of the modern legal equality of wife and husband in the marital relationship, a woman was permitted to bring a claim against a tortfeasor for the negligent deprivation of her husband's consortium. Hitaffer v. Argonne Co.,183 F.2d 811, 819 (D.C. Cir.) (overruled in part on other grounds by Smither & Co. v. Coles,242 F.2d 220');">242 F.2d 220 [D.C. Cir.], cert, denied, 354 U.S. 914, 77 S.Ct. 1299, 1 L.Ed.2d 1429 [1957]), cert, denied, 340 U.S. 852, 71 S.Ct. 80, 95 L.Ed. 624 (1950); Hopson v. St. Mary's Hospital,176 Conn. 485, 489, 408 A.2d 260 (1979); see also T. Demetrio, "Loss of Consortium: A Continuing Evolution," Trial, September, 2000, pp. 42-43. While most jurisdictions quickly followed suit and allowed wives as well as husbands to bring spousal consortium actions, Connecticut was one of a handful of states that initially followed a completely different approach. See Hopson v. St. Mary's Hospital, supra, 490. In Marri v. Stamford Street Railroad Co.,84 Conn. 9, 78 A. 582 (1911), this court recognized that the equal rights of men and women under modern marital law meant that either both genders must be able to maintain an action for loss of consortium or neither may. See id., 22. Reasoning that the action for loss of consortium not ...