Petriello v. Kalman

576 A.2d 474, 215 Conn. 377, 1990 Conn. LEXIS 209
CourtSupreme Court of Connecticut
DecidedJune 19, 1990
Docket13814; 13815
StatusPublished
Cited by152 cases

This text of 576 A.2d 474 (Petriello v. Kalman) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Petriello v. Kalman, 576 A.2d 474, 215 Conn. 377, 1990 Conn. LEXIS 209 (Colo. 1990).

Opinion

Shea, J.

In this medical malpractice action the trial court directed a verdict for the defendant, Griffin Hospital (hospital). The jury, thereafter, returned a verdict for the plaintiff, Ann Petriello, in her action against the named defendant, Roy E. Kalman, a physician. The plaintiff has appealed, claiming error in the direction of the verdict for the hospital. The principal issue in that appeal is whether the hospital had the legal duty to ensure that the plaintiff had given her informed consent to surgical procedures before providing her with preoperative medication. We conclude that the hospital had no such duty. The named defendant has also appealed, challenging the admission of expert testimony and a portion of the charge to the jury. The principal issue in that appeal is whether the trial court correctly instructed the jury that the plaintiff could be awarded compensation for an increased risk of future injury. We conclude that the trial court was correct in giving such an instruction.

The jury could reasonably have found the following facts from the evidence. On April 13, 1984, the plaintiff, who was sixteen weeks pregnant, was seen by the defendant Kalman regarding her complaints of low back pain and vaginal bleeding. Kalman, a specialist [379]*379in obstetrics,1 had been treating the plaintiff throughout her pregnancy. As a result of his examination, Kalman diagnosed a possible missed abortion or threatened abortion and, therefore, admitted the plaintiff to the Griffin Hospital later that evening. On the basis of his belief that the plaintiffs child had died, an ultrasound examination was performed the next morning. This test revealed that the child had in fact died in útero. Kalman was advised of the ultrasound results and he then telephoned the plaintiff, who remained at the hospital, informing her that the results of the test indicated fetal death and that he intended to perform, later that afternoon, a surgical procedure known as a dilatation and curettage to remove the fetus from the plaintiffs womb.

At 1:15 p.m., before that procedure was begun, a nurse employed by the hospital administered preoperative medication to the plaintiff. This medication had been prescribed by an anesthesiologist and consisted of 50 milligrams of demerol, 50 milligrams of phenergan and 0.4 milligrams of atropine. The nurse did not speak with Kalman before giving this medication to the plaintiff. Contrary to a policy adopted by the hospital, providing that “[a] patient may not be sent to surgery nor may preoperative medication be given without proper completion of the informed consent form,” the plaintiff received this medication despite the fact that she had not signed the hospital’s informed consent form. The nurse was aware of this policy and also of her duty to ensure that various items on a preoperative checklist had been completed prior to giving a patient preoperative medication. In the plaintiff’s case, this checklist lacked the signature of a nurse to indicate that the plaintiff had signed the hospital’s informed consent form. The nurse testified at trial that she did [380]*380not know why the informed consent form had not been signed at the time the plaintiff was given the preoperative medication.

After she had been given the preoperative medication, at about 2 p.m., the plaintiff was taken from her room to the surgical holding area. When Kalman arrived, he was told that the plaintiff had been given preoperative medication, but that she had not yet signed the hospital’s informed consent form. Kalman did not expect the plaintiff to have been already medicated, but had anticipated that he would have her sign the informed consent form and that she would then be given the medication. Nonetheless, Kalman, despite the fact that the plaintiff was already under the effect of the medication, had the plaintiff sign the informed consent form and then began the surgical procedure.2 The signing of the consent form by the plaintiff, as well as by her husband, was witnessed by a nurse who was on duty in the operating room. She noted on the form that the plaintiff was both “alert + oriented” at the time she signed the consent form.3

That afternoon, during the procedure to remove the fetus, Kalman, utilizing a suction device, perforated the plaintiff’s uterus and drew portions of her small intestine through the perforation, through her uterus and [381]*381into her vagina. The plaintiffs expert, Phillip Sullivan, an obstetrician, testified that Kalman had used excessive force in the operation of the suction device and that the perforation had resulted from a deviation from the prevailing standard of care. Kalman, in an attempt to repair the damage to the uterine wall, made a transverse incision on the plaintiffs abdomen and requested the assistance of Jose Flores, a general surgeon. Because he could not adequately explore the plaintiffs abdomen, Flores made another incision perpendicular to the one made by the defendant. Flores repaired the injury to the plaintiffs intestine by means of a bowel resection, removing approximately one foot of the intestine and connecting the two ends of the remaining intestine.

Flores, testifying for the plaintiff, stated that, as a result of the bowel resection, adhesions had more probably than not formed in the plaintiff’s abdomen. He also testified that the plaintiff faces an increased risk of future bowel obstruction as a result of these adhesions, but that he thought the risk was remote. Flores stated that, in his experience, adhesions were a prominent cause of small bowel obstruction and that he had advised the plaintiff, after the surgery, that adhesions would form in her abdomen and that they could result in a future bowel obstruction. The plaintiff testified that she was also advised of this increased risk of future bowel obstruction by Flores’ partner, who was also a physician. The plaintiff’s expert, Sullivan, also testified that the plaintiff was subject to an increased risk of future bowel obstruction and that, based on literature he had consulted, she had an 8 to 16 percent chance of developing such an obstruction.

The plaintiff brought her revised complaint in two counts, alleging that Kalman was negligent in that he: (1) performed the dilatation and curettage without first attempting other nonsurgical methods; (2) perforated [382]*382the plaintiffs uterus during the surgical procedure; (3) suctioned out portions of the plaintiff’s small intestine during the surgical procedure; and (4) made an improper incision in the plaintiffs abdomen during his attempt to repair the plaintiff’s small intestine. The plaintiff alleged that the hospital was negligent in one or more of the following ways: (1) by permitting Kalman to perform the surgical procedure without having first obtained her informed consent; and (2) by failing to obtain the plaintiffs informed consent itself, before Kalman performed the surgical procedure.

I

The plaintiff claims that the trial court erred by directing a verdict in favor of the hospital. The hospital moved for a directed verdict at the close of the plaintiff’s case, alleging in a written motion that the plaintiff had “offered no evidence that [the hospital’s] alleged negligence caused the plaintiff’s injuries.” The court reserved decision on the motion and Kalman and the hospital proceeded with their cases.

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Bluebook (online)
576 A.2d 474, 215 Conn. 377, 1990 Conn. LEXIS 209, Counsel Stack Legal Research, https://law.counselstack.com/opinion/petriello-v-kalman-conn-1990.