Fabrizio v. Glaser

661 A.2d 126, 38 Conn. App. 458, 1995 Conn. App. LEXIS 328
Connecticut Appellate Court·Decided July 18, 1995·No. 13293·Published·Cited by 13 cases

Opinion

Spear, J.

In this medical malpractice action arising out of the defendant’s alleged failure to obtain the plaintiff’s informed consent, the plaintiff appeals from the judgment of the trial court rendered after a jury verdict for the defendant. On appeal, the plaintiff asserts that the trial court improperly denied his motion for a directed verdict and his motion to set aside the ver-[459] diet because, contrary to the jury's conclusion, the plaintiff in fact commenced his action within three years of the act or omission complained of, as required by General Statutes § 52-584.1 The defendant argues, as an alternate ground for affirmance, that the general verdict rule applies to this case and precludes appellate review of the plaintiff’s claim. We agree with the defendant and affirm the judgment of the trial court.

The jury reasonably could have found the following facts. On April 16, 1987, the plaintiff consulted the defendant, a dentist, concerning the extraction of his wisdom teeth.2 During this consultation, the plaintiff was advised of the material risks, benefits and alternatives to the extraction. The defendant recommended that the plaintiff have all four wisdom teeth removed. The plaintiff agreed to the extraction and signed a document entitled “Informed Consent for Impacted or Unerupted Teeth” that outlined the risks of the proposed extraction procedure. On April 24, 1987, after the plaintiff signed a consent to operation form, his wisdom teeth were extracted. As a result of this surgery, the plaintiff claims to have suffered permanent nerve injury, including pain and numbness.

The plaintiff commenced this medical malpractice action on April 19, 1990. At trial, the plaintiff’s sole claim was that the defendant had failed to obtain his informed consent prior to extracting his wisdom teeth. The defendant denied that he had failed to obtain the plaintiff’s informed consent and asserted, by way of [460] special defenses, that the plaintiffs action was barred by both the two and three year limitations of § 52-584.

The following procedural history is relevant to this appeal. At the conclusion of the presentation of the evidence, the plaintiff moved for a directed verdict on the basis of both the two and three year limitation provisions of § 52-584. He claimed that the evidence clearly showed that the plaintiff commenced the action within three years from the act or omission complained of and within two years of the time when the plaintiff knew or should have known of the injury. The court denied the motion.

Upon the completion of the presentation of the evidence, the trial court instructed the jury on the essential elements of a cause of action premised on the failure to obtain informed consent and the defendant’s statute of limitations special defenses. Additionally, the trial court submitted two interrogatories to the jury.3 The jury returned a verdict in favor of the defendant. The jury also answered the interrogatories, finding that the plaintiff had commenced the action within the required two years from his discovery of the injury, but had failed to commence the action within three years of the complained of act or omission as required by § 52-584.4 On January 27,1994, the plaintiff moved to [461] set aside the verdict, arguing that the jury’s finding that he had failed to commence the action within three years of the act or omission was not reasonable or legally possible. The trial court denied the plaintiff’s motion to set aside the verdict and rendered judgment. This appeal ensued.

We first consider the defendant’s contention that the general verdict rule precludes our review of the plaintiffs claim. “As it has generally been understood . . . [t]he so-called general verdict rule provides that, if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party. Stone v. Bastarache, 188 Conn. 201, 204, 499 A.2d 142 (1982); Colucci v. Pinette, 185 Conn. 483, 489, 441 A.2d 574 (1981).” (Internal quotation marks omitted.) Curry v. Burns, 225 Conn. 782, 786, 626 A.2d 719 (1993).

In Curry, our Supreme Court delineated the parameters of the general verdict rule and held that the rule applies in the following five situations: “(1) denial of separate counts of a complaint; (2) denial of separate defenses pleaded as such; (3) denial of separate legal theories of recovery or defense pleaded in one count or defense, as the case may be; (4) denial of a complaint and pleading of a special defense; and (5) denial of a specific defense, raised under a general denial, that had been asserted as the case was tried but that should have been specially pleaded.” Id., 801. In this case, the defendant’s denial of the plaintiff’s claim of medical malpractice and his special defense that the statute of limitations had run fall into the fourth category contemplated by the Curry court. Therefore, this case presents a factual situation to which, absent interrogatories that reveal the basis for the verdict, the application of the rule is appropriate.

[462] Two interrogatories were submitted to the jury by the defendant,5 and the plaintiff argues that this fact alone precludes the application of the general verdict rule. The plaintiff is correct in asserting that it is well established that “[a] party desiring to avoid the effects of the general verdict rule may elicit the specific grounds for the verdict by submitting interrogatories to the jury.” Id., 786. Furthermore, “the use of interrogatories has long been accepted practice in this state, and . . . their use to avoid the implications of a general verdict has long been favored by this court.” Gaulton v. Reno Paint & Wallpaper Co., 177 Conn. 121, 125, 412 A.2d 311 (1979).

Although interrogatories were submitted to the jury, the defendant argues that the answers do not necessarily determine the grounds for the verdict, and, therefore, the general verdict rule should be applied. Thus, we are presented with the issue of whether the general verdict rule is applicable when the interrogatories relate solely to the defendant’s special defense and the answers to the interrogatories do not reveal whether the jury considered the merits of the case.

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Fabrizio v. Glaser, 661 A.2d 126, 38 Conn. App. 458, 1995 Conn. App. LEXIS 328 (Colo. Ct. App. 1995).

661 A.2d 126 (Fabrizio v. Glaser) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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