The Connecticut Supreme Court held in its opinion released on March 10, 2020: “We agree with the plaintiffs that the acceptable alternatives charge was improper but agree with the defendants that it was harmless. Because we determine that any error was harmless, we decline to take this opportunity to abolish the acceptable alternatives doctrine.”
Acceptable Alternatives Doctrine
The acceptable alternatives doctrine provides 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.
The Underlying Facts
The plaintiff suffered a rectovaginal fistula and sphincter separation as a result of the extension of her episiotomy performed during delivery of her baby. Her Connecticut medical malpractice lawsuit alleged that the delivering physician was negligent in that she had failed to identify a fourth degree extension of the median episiotomy, failed to perform a proper and adequate episiotomy repair, and failed to properly examine the episiotomy repair after it was complete.
At the close of evidence, the defendants requested that the trial court include a charge on the acceptable alternatives doctrine concerning the standard of care for conducting the digital rectal exam. The plaintiff objected, but the trial court overruled the objection and gave the requested charge. The Connecticut medical malpractice jury returned a defense verdict, finding that the plaintiff had sustained her burden of establishing the standard of care but had failed to sustain her burden of establishing that the defendant physician had breached the standard of care. The plaintiff appealed.
Connecticut Supreme Court Opinion
The Connecticut Supreme Court stated that during closing argument, neither party referred to the acceptable alternatives doctrine, despite the fact that the defendants had requested an acceptable alternatives jury instruction. Rather, both parties argued that there was only one proper method of conducting the digital rectal exam—the plaintiff argued that it had to occur prior to the repair, and the defendants argued that it had to occur after the repair. Although both parties discussed the defendant physician’s inspection technique, both argued that the crux of the case came down to whether there was a third degree or a fourth degree episiotomy extension.
Competing Expert Testimony
The Connecticut Supreme Court stated: “competing expert testimony by itself is not sufficient to support the acceptable alternatives charge. For example, if expert A testifies that the standard of care requires diagnosis to be made using the X method, and expert B testifies that the standard of care requires diagnosis to be made using the Y method, the jury must decide between the two alternatives, with only one option satisfying the standard of care. There would be no evidence that both methods were acceptable alternatives because both experts testified that only one method would satisfy the standard of care. Rather, to justify the charge, a qualified expert must testify that there is more than one acceptable method of inspection, treatment, or diagnosis.”
The Connecticut Supreme Court stated: “The evidence in the present case played out like the hypothetical just described: no expert testimony established that conducting the digital rectal exam either before the episiotomy repair or after the episiotomy repair was an acceptable method of diagnosing the level of degree of extension. Rather, the plaintiff’s expert, Young, testified that the only acceptable method was to conduct this examination prior to the repair. In contrast, one of the defendants’ experts, Ling, testified that this examination should be performed after the repair, to prevent contamination and infection. Additionally, [the defendant physician] herself never testified that she made a choice regarding when to conduct the digital rectal exam but, rather, testified that she was trained to conduct this exam only after the episiotomy repair … neither party at trial argued that the expert testimony established that [the defendant physician] chose between two acceptable alternatives in performing the digital rectal examination post repair … this record did not support an acceptable alternatives charge.”
The Connecticut Supreme Court held: “In light of the evidence presented at trial, the trial court improperly instructed the jury on the acceptable alternatives charge.”
The Connecticut Supreme Court stated that the inclusion of an inapplicable doctrine may be harmful if it confuses and misleads the jury, which may be evidenced by the jury’s having requested additional guidance from the court on the doctrine.
The Connecticut Supreme Court stated that in the present case, “regardless of whether the jury found either or both methods of inspection acceptable, there would be a breach of the standard of care only if the plaintiff had sustained a fourth degree episiotomy extension and [the defendant physician] had failed to properly repair it … The timing of the exam was relevant to the issue of breach only if the jury found there was a fourth degree episiotomy extension.”
The Connecticut Supreme Court stated: “Although the trial court repeated the acceptable alternatives charge, the court put it into context by reemphasizing that the plaintiffs’ allegations were premised on a fourth degree extension, which must exist for the inspection technique issue to be material, thus diminishing any harm caused by the repetition of the inapplicable charge … the jury sought clarification on the instruction, it did not seek clarification on the acceptable alternatives charge. Rather, the jury sought clarification on what evidence it could consider in determining whether the plaintiffs satisfied their burden of establishing the standard of care. The jury also sought clarification on whether the plaintiffs were asserting that a digital rectal exam had to be conducted before the repair to comply with the standard of care.”
The Connecticut Supreme Court continued: “the jury was focused on the standard of care. As discussed, the standard of care involved the inspection technique only if the jury first found that a fourth degree extension had existed, which it did not find on the basis of its finding that there was no breach of the standard of care. Thus, the jury’s focus on the standard of care did not necessarily suggest a focus on the acceptable alternatives charge.”
The Connecticut Supreme Court stated: “Despite its flaws, the acceptable alternatives charge did not require the jury to exculpate [the defendant physician]. Rather, the charge informed the jury that it must decide whether there was more than one recognized method of inspection and, if there was, then determine whether the ‘‘method [used] was consistent with the skill, care, and diligence ordinarily had and exercised by other specialists in her field in like cases at the time that she provided treatment.’’ Similarly, the charge did not interfere with the jury’s determination of credibility by suggesting that both methods of inspection were reasonable. The charge properly left the jury to determine whether the expert testimony established that both methods of inspection were accepted in the medical community. Moreover, the jury did not need to reach this issue unless it found that a fourth degree episiotomy extension had existed. It did not.”
The Connecticut Supreme Court held: “Accordingly, on the basis of this record, the trial court’s improper inclusion of the acceptable alternatives charge was harmless.”
Source Kos v. Lawrence + Memorial Hospital, SC 20256.
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