The Connecticut Appellate Court issued an opinion on August 11, 2017 in which it affirmed the judgment entered in favor of the plaintiffs (husband and wife) in the amount of $386,249.81 following a bench trial in which the plaintiffs alleged that the defendant urologist negligently performed a vasectomy on the husband by failing to sever and dissect the appropriate vas deferens and instead severed and dissected vascular structures necessary for the continued viability of the plaintiff’s left testicle.
The Connecticut medical malpractice trial before a judge began on November 4, 2015. The trial judge heard testimony from several witnesses that during the plaintiff’s vasectomy on April 1, 2013, the defendant surgeon 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 plaintiff’s left testicle had been obstructed at the time that he went to the emergency room three days after his vasectomy and that the loss of blood flow caused the necrosis of the plaintiff’s testicle. However, 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 caused the loss of blood flow, meaning that the injury occurred sometime after the vasectomy, between April 1 and 4, 2013.
The trial judge issued its judgment in favor of the plaintiffs on November 19, 2015, concluding that the plaintiffs had established by a fair preponderance of the evidence that the defendant surgeon was negligent in his treatment of the plaintiff 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 the plaintiff during his performance of the vasectomy.
The defendants appealed, arguing that the trial judge 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 argued that in alleging that the defendant urologist dissected and ligated vascular structures, thereby severing blood flow to the plaintiff’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 argued that because the plaintiffs’ theory of liability presented at trial was that the defendant urologist dissected and ligated a vein, not the testicular artery, and injured the nearby testicular artery in turn by unintentionally cauterizing it, the plaintiffs did not obtain a waiver of sovereign immunity for the claim presented to the court.
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.”
§ 4-160 (b) 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 medical 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.”
The defendants argued that because the theory of liability presented in the plaintiffs’ notice of claim filed with the commissioner was different from the “cauterization theory” that the plaintiffs presented at trial, the trial court was barred by the doctrine of sovereign immunity from rendering judgment for the plaintiffs on this “new’” theory.
The Connecticut Appellate Court stated that the present case is a medical malpractice action and therefore subject to § 4-160 (b), which strips the commissioner of his discretionary decision-making power to authorize suit for such claims against the state if a certificate of good faith in accordance with § 52-190a has been submitted.
The Connecticut Appellate Court stated that the plaintiffs properly filed a timely notice with the commissioner, sought permission from the commissioner to pursue a medical malpractice action against the defendants, and attached a certificate of good faith. Therefore, the commissioner was required to grant the plaintiffs’ motion for permission to sue under the circumstances, regardless of how the plaintiffs precisely worded the basis of their medical malpractice claim in their notice. The fact that the plaintiffs’ actual notice of claim included more details, which did not conflict with the theory pursued at trial, is not fatal to the plaintiffs’ medical malpractice case.
The Connecticut Appellate Court further stated that the basis of the claim contained in the notice filed with the commissioner is not materially different from the basis of their claim at trial: “the plaintiffs’ notice of claim alleged that ‘the defendant urologist “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.'” The plaintiffs argued at trial that the defendant urologist’s act of mistakenly dissecting and ligating the vascular structures eventually resulted in the loss of blood flow to the plaintiff’s left testicle, as they also alleged in the notice. Accordingly, the plaintiffs’ theory of liability in their notice accurately sums up the theory of liability presented at trial, albeit in a truncated manner that omits any express mention of cauterization in the causal chain.
The Connecticut Appellate Court stated that the basis of the claim in the notice to the commissioner was not as particularized as it might have been, but this fact is unsurprising because the plaintiffs did not have the benefit of months of discovery prior to drafting it: because discovery had not yet been allowed, the plaintiffs were essentially hamstrung at the outset with how detailed they could be in setting forth their medical malpractice claim. The Connecticut Appellate Court further sated that the permissive language of § 4-147 (“[s]uch notice shall be for informational purposes only and shall not be subject to any formal or technical requirements”) appears to acknowledge that attaching any binding significance to this document at such an early stage of the proceeding would be unfair to a potential plaintiff.
The Connecticut Appellate Court rejected the defendants’ assertion that the trial court improperly rendered judgment for the plaintiffs on a claim for which the commissioner had not granted a waiver of sovereign immunity.
Source Arroyo v. University of Connecticut Health Center, AC 38701.
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