text:
    Seymour Hammer v. Mount Sinai Hospital et al.
    (8841)
    (8851)
    Dupont, C. J., Spallone and Heiman, Js.

      Argued March 26
    decision released September 17, 1991

      John F. Scully and John P. Rogers, with whom, on the brief, were John D. Liberator, Louis B. Blumenfeld and Joseph A. LaBella, for the appellants (named defendant et ah).

      Wesley W. Horton, with whom were William R. Moller, Louis W. Flynn, Jr., and, on the brief, Susan M. Cormier, for the appellee (plaintiff).
   Dupont, C. J.

The defendants, Mount Sinai Hospital (hospital) and Douglas Whittemore, a physician employed by the hospital, appeal from a judgment rendered on a general verdict in favor of the plaintiff in this malpractice action.

On August 18,1981, the plaintiff, a podiatrist, entered the hospital for treatment of a duodenal ulcer. The plaintiff also suffered from pancreatitis, a related condition, the symptoms of which made it unsafe for him to undergo ulcer surgery. In order to control those symptoms, Kishan Tandon, the plaintiff’s treating physician, decided that the plaintiff should receive high caloric intravenous feeding through a Total Parenteral Nutrition (TPN) line.

Intravenous feeding by a TPN line begins with insertion of a four inch long, large bore needle into a patient’s subclavian vein, a blood vessel in the shoulder that is not visible on the surface of the skin. A catheter is then passed into the vein. Once inserted, the catheter is attached to a drip bottle or pump that supplies the nutrient fluid. The area is numbed by novocaine, but the patient is not necessarily sedated during the insertion of the TPN line.

On August 28, 1981, Whittemore was assigned to install a TPN line for the plaintiff. The plaintiff was nervous and agitated throughout the procedure, moving his head, crying out, complaining of pain and requiring additional injections of novocaine. Whittemore was unable to insert the line on his first try.

The morning after the procedure, the plaintiff was found semiconscious, with one end of the TPN line disconnected from the nutrient source and open to the air, the other line remaining in his chest. He exhibited signs of neurological distress. Later that night, the plaintiff suffered seizures. The plaintiff eventually recovered from the worst effects of his neurological problems and left the hospital on September 9, 1981.

The plaintiff sued the defendants for damages for permanent injuries he sustained as a result of their negligence in the insertion and supervision of the TPN line. He also claimed that Whittemore performed the procedure without obtaining his informed consent.

Whittemore prepared interrogatories for the court to submit to the jury. The hospital joined in requesting that Whittemore's interrogatories be given to the jury. The court rejected these interrogatories as improper and did not submit them or its own interrogatories. The jury returned a general verdict in favor of the plaintiff against Whittemore and the hospital in the amount of $460,000. Whittemore moved to set aside the verdict and for judgment notwithstanding the verdict on several grounds. The hospital also moved to set aside the verdict, as well as for judgment notwithstanding the verdict, and for a new trial and a remittitur. The trial court denied the defendants’ motions.

The defendants make a multiplicity of claims. See State v. Pelletier, 209 Conn. 564, 567, 552 A.2d 805 (1989). They claim (1) that the trial court improperly refused to submit interrogatories to the jury, (2) that the trial court improperly charged the jury on several issues, (3) that the trial court incorrectly refused to strike the testimony of the plaintiff’s two expert witnesses, and that the evidence did not support the plaintiff on his claims, (4) that the trial court incorrectly excluded evidence of the plaintiff’s income after the injury, (5) that the trial court improperly dismissed a juror, and (6) that the verdict is excessive.

I

The plaintiff’s complaint incorporated two causes of action against Whittemore, one for his alleged negligence in the installation of the TPN line and the other for his alleged negligence in failing to obtain the plaintiff’s informed consent.

Because there were two causes of action, Whittemore had a right to protect himself “from the implication of a general verdict by seeking from the jury answers to apt and proper interrogatories.” Hartford v. Anderson Fairoaks, Inc., 7 Conn. App. 591, 594, 510 A.2d 200 (1986); Sheeler v. Waterbury, 138 Conn. 111, 114-15, 82 A.2d 359 (1951); Booker v. Stern, 19 Conn. App. 322, 328, 563 A.2d 305 (1989).

There was no allegation of lack of informed consent against the hospital. The hospital was not, therefore, entitled to join in the request to submit to the jury the interrogatories proposed by Whittemore, nor was the hospital entitled to interrogatories as of right because there was only one cause of action alleged against it. Cf. Hartford v. Anderson Fairoaks, Inc., supra. On appeal, however, the hospital claims that the failure of the trial court to submit Whittemore’s interrogatories on informed consent infected the general verdict returned against the hospital. The hospital, thus, claims the benefit of any appellate ruling on this issue in Whittemore’s favor. The hospital cannot claim such a benefit. The trial court clearly instructed the jury that negligence arising from any lack of informed consent was alleged only against Whittemore. A jury is presumed to follow the trial court’s instructions. State v. Richardson, 214 Conn. 752, 757, 574 A.2d 182 (1990). Furthermore, there is only one cause of action against the hospital, and, therefore, the general verdict rule does not apply.

The implication of a general verdict, where there are two causes of action, “imports that the jury has found all the issues for the plaintiff, hence if one of these causes of action is supported by credible testimony the verdict must stand, although the other cause of action was not supported by credible testimony or authorized by law, since it cannot be known that the verdict was based upon the invalid cause of action.” Wladyka v. Waterbury, 98 Conn. 305, 313, 119 A. 149 (1922); see also Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987). A defendant may seek protection against such an implication by requesting a separate verdict as to each cause of action. Sheeler v. Waterbury, supra, 114. Protection against the application of the general verdict rule also may be obtained by the use of properly framed interrogatories. A court has a duty to grant a defendant’s proper request for interrogatories when there are two or more causes of action. Pentino v. Gallo, 107 Conn. 242, 244, 140 A. 105 (1928); Hartford v. Anderson Fairoaks, Inc., supra.

Even in the face of this duty, however, our cases recognize that a trial court has broad discretion to regulate the manner in which interrogatories are presented to the jury, as well as their form and content. Gaulton v. Reno Paint & Wallpaper Co., 177 Conn. 121, 125, 412 A.2d 311 (1979); Freedman v. New York, N. H. & H. R. Co., 81 Conn. 601, 611-15, 71 A. 901 (1909); see Practice Book § 312. Interrogatories “should generally be few in number, and never so numerous as to confuse or perplex the jury in rendering their verdict. They should be so clear and concise as to be readily understood and answered by the jury. Each question should call for a finding of but a single fact. When practicable each question should be so framed as to call for a categorical answer. Each question should ask for the finding of a fact and never for a conclusion of law. No question should ask for the finding of a purely evidential fact nor an uncontroverted fact. Although not wholly covering, nor necessarily controlling, the determination of any issue framed, the fact sought to be elicited must be pertinent to some issue, and one which may be of material weight in deciding it. No interrogatory should be permitted, the response to which cannot serve either to limit or explain a general verdict, or aid in proceedings for a subsequent review of the verdict or judgment which may be rendered.” Freedman v. New York, N. H. & H. R. Co., supra, 614.

Here, Whittemore submitted fourteen interrogatories laced with medical terms relating to both of the plaintiffs causes of action and addressing subordinate facts rather than ultimate facts. See Pierce v. Albanese, 144 Conn. 241, 261, 129 A.2d 606, appeal dismissed, 355 U.S. 15, 78 S. Ct. 36, 2 L. Ed. 2d 21 (1957). For example, one interrogatory asks, “Do you find from the evidence that the piercing was distal or beyond the vertebral artery?” Two of the interrogatories may be inconsistent because one appears to require the use of a subjective standard for the informed consent cause of action, and the other requires the use of an objective standard for the same cause of action.

The trial court could reasonably have concluded that interrogatories in this form would only have confused the jury and would not have served to “limit or explain” the verdict. See Freedman v. New York, N. H. & H. R. Co., supra. Under these circumstances, the trial court did not abuse its discretion in refusing to submit Whittemore’s interrogatories to the jury.

Even if the trial court had an obligation to rephrase some of Whittemore’s interrogatories for submission to the jury; see Hartford v. Anderson Fairoaks, Inc., supra; the failure to do so here would not require the verdict against Whittemore to be set aside. This is so because we conclude that the court’s instructions were correct as to both causes of action against Whittemore.

Where “there are two or more distinct causes of action, a general verdict will cure an erroneous charge as to one of them.” Giglio v. Connecticut Light & Power Co., 180 Conn. 230, 232, 429 A.2d 486 (1980). Thus, if there are two or more distinct causes of action and the charge as to both is correct, there is no erroneous charge to be cured by a general verdict. A defendant in such a case would not need interrogatories in order to be saved from this implication of the general verdict rule. See Pederson v. Vahidy, 209 Conn. 510, 517, 552 A.2d 419 (1989); Sheeler v. Waterbury, supra, 115. The function of jury interrogatories is to provide a guide for the jury’s reasoning, and a written chronicle of that reasoning. Clear and correct jury instructions can guide the jury in its reasoning and conclusions.

Whittemore makes many attacks on the jury instructions independent of his claim concerning the failure of the court to submit interrogatories to the jury. In particular, Whittemore attacks the court’s instructions on informed consent, claiming that the court (1) failed to explain that expert testimony was required to establish the nature of the risk, (2) failed to explain that only material risks need be disclosed, and (3) failed to instruct that in order to establish causation, the plaintiff had to testify that he would have foregone treatment if fully informed.

The trial court told the jury that the standard of medical practice regarding informed consent must be based on expert testimony, and that the jury must find, from that expert testimony, whether the defendants failed to meet the standard. This instruction sufficiently informed the jury that it must rely on expert testimony in evaluating the plaintiff’s claim of lack of informed consent. The court also instructed the jury that “[a] risk is material when a reasonable person, in what the physician knows and should have known the plaintiffs position to be, would attach significance to the risk in deciding whether to forego the proposed treatment or not.” This instruction properly sets forth the law. See Logan v. Greenwich Hospital Assn., 191 Conn. 282, 291, 465 A.2d 294 (1983).

Whittemore’s final challenge to the court’s instruction on informed consent is that the court failed to instruct the jury that because the plaintiff did not testify that he would not have undergone treatment had he been fully informed, the jury could not find for the plaintiff on that issue because without this testimony the plaintiff could not establish proximate cause. There are two separate standards of proximate cause recognized in informed consent cases, namely the objective standard and the subjective standard. “Under the ‘subjective’ standard, the test is whether, viewed from the point at which he had to decide, the patient would have decided differently had he been properly informed. . . . Under the ‘objective’ standard, on the other hand, the question of causality is resolved ‘in terms of what a prudent person in the patient’s position would have decided if suitably informed of all perils bearing significance.’ ” (Citations omitted.) Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 245 n.6, 522 A.2d 829 (1987). Our courts have not yet adopted either standard of proof of proximate causation in an informed consent cause of action. The trial court charged the jury that the standard of proof of proximate causation in an informed consent case is the objective standard. Resolution of Whittemore’s challenge to the instructions requires that we now decide which standard of proof should be adopted for determining proximate causation.

An instruction that a plaintiff must testify that he would have foregone treatment if fully informed is a requirement of the subjective standard. The possible infirmities of such testimony, delivered in hindsight by an injured and disgruntled plaintiff, were noted by the court that first articulated the standards for proximate cause in such cases. Canterbury v. Spence, 464 F.2d 772, 790 (D.C. Cir.), cert. denied, 409 U.S. 1064, 93 S. Ct. 560, 34 L. Ed. 2d 518 (1972). We agree with that court that “[the subjective] method of dealing with the issue on causation comes in second best. It places the physician in jeopardy of the patient’s hindsight and bitterness. It places the factfinder in the position of deciding whether a speculative answer to a hypothetical question is to be credited. It calls for a subjective determination solely on testimony of a patient-witness shadowed by the occurrence of the undisclosed risk.” Id., 790-91. We, therefore, follow the reasoning of Canterbury and hold, along with a majority of jurisdictions, that the objective test is the better standard. See, e.g., Fain v. Smith, 479 So. 2d 1150, 1154 (Ala. 1985); Cobbs v. Grant, 8 Cal. 3d 229, 245, 502 P.2d 1, 104 Cal. Rptr. 505 (1972); St. Gemme v. Tomlin, 118 Ill. App. 3d 766, 769, 455 N.E.2d 294 (1983); Woolley v. Henderson, 418 A.2d 1123, 1132 (Me. 1980); Dries v. Gregor, 72 App. Div. 2d 231, 236, 424 N.Y.S.2d 561 (1980); Wilkinson v. Vesey, 110 R.I. 606, 624-25, 295 A.2d 676 (1972). This conclusion is consistent with our Supreme Court’s adoption of the objective standard for determining the materiality of risk. Logan v. Greenwich Hospital Assn., supra.

A further review of the jury charge shows the instructions to be correct as to the elements of a cause of action for medical malpractice in the performance of a particular procedure; Barnes v. Schlein, 192 Conn. 732, 735, 473 A.2d 1221 (1984); Cross v. Huttenlocher, 185 Conn. 390, 393, 440 A.2d 952 (1981); Perez v. Mount Sinai Hospital, 7 Conn. App. 514, 520-21, 509 A.2d 552 (1986); see D. Wright, J. Fitzgerald & W. Ankerman, Connecticut Law of Torts (3d Ed. 1991) § 88; and an action for lack of informed consent. Logan v. Greenwich Hospital Assn., supra, 287-88 n.l. Also correct were the instructions on causation; Cross v. Huttenlocher, supra; and on inferences and circumstantial evidence. State v. Englehart, 158 Conn. 117, 121, 256 A.2d 231 (1969). We conclude, therefore, that the jury rendered its decision based on correct rules of law.

II

Both defendants make several other claims regarding the jury instructions. They claim that the court failed to comment adequately on the evidence, and that where, as here, the issues are complex and peculiar, such a failure requires reversal. “ ‘The degree to which reference to the evidence may be called for lies largely in the discretion of the court.’ Gorham v. Farmington Motor Inn, Inc., 159 Conn. 576, 583, 271 A.2d 94 (1970); accord State v. Stepney, 191 Conn. 233, 464 A.2d 758 (1983).” Logan v. Greenwich Hospital Assn., supra, 297. “[I]f the issues are clearly enumerated and the argument of counsel has fairly presented the case, a discussion in the charge of the details of the evidence may defeat its proper purpose.” Jacques v. Carter, 2 Conn. App. 27, 34, 476 A.2d 621 (1984).

Our review of the jury charge reveals that the court defined the applicable legal doctrines and, in an evenhanded, concise manner, stated those facts necessary to guide the jury in its application of the law to the facts. Logan v. Greenwich Hospital Assn., supra. In addition, this trial, although lengthy, was a straightforward malpractice action and did not require the lengthy comment the defendants request. Under these circumstances, it is not probable that the jury was misled, and the defendants are therefore not entitled to a reversal on this issue. Jacques v. Carter, supra, 35.

The defendants also take issue with the following portion of the court’s charge: “As you know, Dr. Mistry was originally a defendant. The case is withdrawn as to him. So you do not consider that. You are only to consider the claims of negligence against the parties that I am instructing you about.” The defendants assert that this instruction was harmful because the allegations against Mistry in a prior complaint are admissions of the plaintiff and should have been admitted as statements inconsistent with the plaintiff’s position at trial under the amended complaint that contained no allegation against Mistry. In making this claim, however, the defendants both misrepresent the events at trial and take the court’s instruction on liability of Mistry out of context. The original complaint was admitted as an exhibit, and, therefore, the jury had those admissions before it. See Dreier v. Upjohn Co., 196 Conn. 242, 244, 492 A.2d 164 (1985); Schenck v. Pelkey, 176 Conn. 245, 248, 405 A.2d 665 (1978). The jury was also charged on the significance of inconsistent statements. This was not a case, therefore, where the jury was denied the opportunity to consider an alternative theory of causation vital to the defense. In addition, when the instructions concerning Mistry are read in the context of the charge as a whole, it is obvious that the trial court was reminding the jury that the case against Mistry was withdrawn, and, therefore, that no verdict could be returned as to him. See Wilhelm v. Czuczka, 19 Conn. App. 36, 43, 561 A.2d 146 (1989). The charge as a whole was correct.

The defendants next claim that the court improperly charged the jury on the issue of damages by stating that the parties had stipulated that the plaintiffs life expectancy was 16.2 years, when, in fact, the parties had not so stipulated. The defendants also assert that this instruction prevented the jury from considering whether the plaintiff’s many other health problems would have an impact on his life expectancy. We disagree.

Concerning life expectancy, the trial court charged: “I think there was one undisputed fact where the attorneys stipulated to something. And that was the life expectancy of the plaintiff. And, as I recall, it was 16.2 years. Of course, when I mention any factual matters, use your own recollection. If I mention facts and you do not believe them to be accurate, it is your recollection and not mine nor the attorneys’ that you credit. But that was the stipulation I think the parties offered, life expectancy of 16.2 years.” This instruction does not prevent the jury from considering whether the plaintiff, whose many medical difficulties were put into evidence, might have a shorter than average life expectancy. Furthermore, the court charged that the jury should use its own recollection of the evidence as to life expectancy. This claim has no merit.

The defendants next assert that the trial court improperly instructed the jury that the plaintiff could recover for permanent injury to his person. They claim that the plaintiff did not allege that he was permanently injured nor was there evidence adduced to establish the existence of any permanent injuries. Our review of the record shows that, contrary to the defendants’ assertion, the plaintiff had alleged that all of his injuries were “of a permanent nature and will continue to cause the plaintiff severe pain, anguish and a shock to his entire system.” The plaintiff’s treating neurologist, Edward J. Fredericks, also testified to the plaintiff’s ongoing and permanent physical problems, which he found consistent with the neurological data in the plaintiff’s hospital record following his collapse after the installation of the TNP line. It was, therefore, proper for the trial court to instruct the jury on damages for permanent injuries. Clark v. George B. Wuestefeld Co., 132 Conn. 653, 658, 46 A.2d 841 (1946).

The defendants next claim that the trial court improperly charged the jury that the plaintiff could recover damages for injuries made more serious by an underlying preexisting condition. It is axiomatic that a “ ‘defendant takes the plaintiff as he finds him.’ ” Terminal Taxi Co. v. Flynn, 156 Conn. 313, 320, 240 A.2d 881 (1968). The court here was careful to instruct the jury that the plaintiff could recover for only those injuries resulting from the defendants’ negligence, and in no way implied that the preexisting condition was somehow compensable. The court correctly charged that the plaintiff was entitled to recover for the damages proximately resulting from the defendants’ negligence even if the damages were greater than they otherwise would have been because of a preexisting condition. This charge was correct. Id.

III

The defendants also claim that the testimony of the plaintiffs two expert witnesses, Richard Bassin, a general surgeon, and David Bronster, a neurologist, was based on speculation rather than fact, and that, therefore, their testimony should have been stricken. The defendants argue that if the testimony had been stricken, the evidence would have been insufficient to support the plaintiffs cause of action in negligence arising from the insertion of the TPN line. The defendants use this claim as a basis to challenge the trial court’s refusal to direct a verdict for them, or to render judgment notwithstanding the verdict.

“Our review of the trial court’s refusal to direct a verdict requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony. . . . ‘The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion.’ ” (Citations omitted.) Mather v. Griffin Hospital, 207 Conn. 125, 130, 540 A.2d 666 (1988); Samose v. Hammer-Passero Norwalk Chiropractic Group, P.C., 24 Conn. App. 99, 102, 586 A.2d 614, cert. denied, 218 Conn. 903, 588 A.2d 1079 (1991). Our review of the evidence leads us to conclude that the trial court acted properly.

“In order to prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from the standard of care, and (3) a causal connection between the deviation and the claimed injury. Pisel v. Stamford Hospital, 180 Conn. 314, 334, 430 A.2d 1 (1980)..." Samose v. Hammer-Passero Norwalk Chiropractic Group, P.C., supra, 102-103. The defendants claim that the plaintiff failed to prove a causal connection between the defendants’ alleged deviation from the standard of care and the plaintiff’s injuries. Expert opinion is necessary to establish causation in a malpractice action, and that opinion “ ‘must rest upon more than surmise or conjecture.’ ” Shelnitz v. Greenberg, 200 Conn. 58, 66, 509 A.2d 1023 (1986), quoting Boland v. Vanderbilt, 140 Conn. 520, 525, 102 A.2d 362 (1953).

At trial, Bassin opined that Whittemore had pierced the subclavian artery, which lies directly below the subclavian vein, while attempting to insert the TPN line into the plaintiff. This piercing would have caused a blood clot to form, which could have later broken up, traveled up the vertebral artery to the plaintiff’s brain and resulted in a brain embolism that caused the plaintiff’s neurological problems. The defendants point to the lack of medical evidence on the record to support the theory of a pierced artery because the blood Whittemore drew into the syringe attached to the needle used for inserting the TPN line was dark red venous blood, rather than bright red arterial blood. The defendants also argue that there is no support in medical literature for Bassin’s theory.

“There are no precise facts that must be proved before an expert’s opinion may be received in evidence. Waldron v. Raccio, 166 Conn. 608, 614, 353 A.2d 770 (1974). Rather, it is largely a matter of judicial discretion as to whether a witness has been shown to have sufficient experience and opportunity of observation to render his opinion.” Pool v. Bell, 209 Conn. 536, 543, 551 A.2d 1254 (1989). Bassin testified that before trial he reviewed the hospital records and the depositions of several parties to the case, including Whittemore’s and the plaintiff’s, and based his opinion on the facts therein. Shelnitz v. Greenberg, supra, 67. The fact that Bassin reached a different conclusion than the defendants’ experts, using the same material, does not mean that his conclusion was groundless. Bassin further testified that he performed more than 100 insertions of TPN lines, and that piercing the subclavian artery does not necessarily cause any bleeding. In light of Bassin’s testimony as to his training, experience and investigation, the trial court did not abuse its discretion in admitting his opinion as to the cause of the plaintiff’s injuries. Pool v. Bell, supra, 544. Bassin also testified that Whittemore deviated from the prevailing standard of care in 1981 by attempting to insert the TNP line on a resistant patient who was not sufficiently sedated, and that this deviation caused the plaintiff’s current problems. This testimony was sufficient to allow the jury reasonably to conclude that Whittemore’s deviation from the standard of care was causally connected to the plaintiff’s injuries.

Similarly, the defendants claim that Bronster’s testimony should have been stricken because it had no basis in fact. Bronster testified regarding two theories of the cause of the plaintiff’s injuries. First, he testified that, as a result of a forceful turning of the plaintiff’s head, the plaintiff’s subclavian artery was dissected, forming a clot that traveled to the brain. The defendants claim that there was no evidence of such a forceful turning of the plaintiff’s head, or of the pain associated with an arterial dissection. The plaintiff, however, testified that he had been “more or less thrashing around” during the procedure, and that he had screamed out in pain. The assisting nurse also testified that the plaintiff was complaining of pain and was moving while Whittemore was attempting to insert the TPN line. This testimony, taken together with Bassin’s testimony on the standard of care for installing a TPN line on a resistant patient, was sufficient to establish the necessary causal relationship between the defendants’ alleged malpractice and the plaintiff’s injuries.

Bronster also testified that the plaintiffs injuries might have been caused by a piercing of the subclavian artery. The defendants object to this testimony because Bronster testified in terms of possibilities rather than probabilities. “Although we approve generally of the ‘reasonable medical probability’ standard, we also note that no ‘talismanic words’ are mandatory. See Healy v. White, [173 Conn. 438, 444, 378 A.2d 540 (1977)] (testifying to odds and percentages is acceptable); Boland v. Vanderbilt, [140 Conn. 520, 525, 102 A.2d 362 (1953)]; 31 Am. Jur. 2d § 44 (1967 and 1987 Sup.).” Aspiazu v. Orgera, 205 Conn. 623, 632, 535 A.2d 338 (1987). Bronster did express his opinion variously in terms of likelihoods, possibilities and probabilities. It is clear from Bronster’s testimony that he had concluded that Whittemore’s treatment of the plaintiff was responsible for the plaintiff’s injuries. His testimony thus could reasonably have been admitted by the court, and interpreted by the jury, “to meet that acceptable standard of reliability typified by the ‘reasonable degree of medical certainty [or probability]’ demanded in such cases.” Id., 633.

The testimony of the expert witnesses for the plaintiff should not have been stricken. The jury verdict on the plaintiff’s claim of negligence in the insertion of the TPN line was, therefore, supported by the evidence.

Whittemore also claims that the evidence was insufficient to support a jury verdict on the plaintiffs informed consent claim. Because we have concluded that the plaintiff’s evidence on the negligence claim arising from the performance of the procedure was sufficient to support the jury’s verdict and the general verdict rule applies to Whittemore, we need not reach this issue. Pedersen v. Vahidy, supra; Finley v. Aetna Life & Casualty Co., 202 Conn. 190, 202, 520 A.2d 208 (1987).

IV

The defendants next complain that the trial court improperly refused to admit evidence of the plaintiffs income from disability insurance to impeach his credibility. The plaintiff had testified on direct examination that, as a result of his neurological problems, he was no longer able to work as a podiatrist, and was thus incapable of providing for his elderly mother and maintaining his own home. In attempting to offer evidence of the plaintiffs disability income, the defendants argued that the income was substantial, and the evidence served both to impeach the plaintiffs credibility and to demonstrate his lack of motivation to work.

Evidence of an injured person’s income or recovery from loss-reducing sources is ordinarily barred by the collateral source rule. “ ‘The basis of our well-established collateral source rule is that a wrongdoer shall not benefit from a windfall from an outside source.’ ” Rametta v. Stella, 214 Conn. 484, 489-90, 572 A.2d 978 (1990), quoting United Aircraft Corporation v. International Assn. of Machinists, 161 Conn. 79, 101-102, 285 A.2d 330 (1971), cert. denied, 404 U.S. 1016, 92 S. Ct. 675, 30 L. Ed. 2d 663 (1972). Recently, in Baystate Moving Systems, Inc. v. Bowman, 24 Conn. App. 531, 590 A.2d 462 (1991), this court held that it was not improper for a court to admit evidence of a plaintiff’s workers’ compensation payments, as relevant to his credibility.

As with all relevant impeachment evidence, a trial court must determine whether the probative value of such evidence is outweighed by considerations of prejudice, confusion of the issues, misleading the jury, undue consumption of time, or unfair surprise. Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 563, 525 A.2d 954 (1987). In addition, “[t]he extent of cross-examination of a witness with regard to that person’s credibility is within the discretion of the trial court.” State v. Clemons, 168 Conn. 395, 404, 363 A.2d 33, cert. denied, 423 U.S. 855, 96 S. Ct. 104, 46 L. Ed. 2d 80 (1975). “ ‘Every reasonable presumption should be given in favor of the correctness of the court’s ruling in determining whether there has been an abuse of discretion.’ ” State v. Ghere, 201 Conn. 289, 303, 513 A.2d 1226 (1986), quoting State v. Briggs, 179 Conn. 328, 333, 426 A.2d 298 (1979), cert. denied, 447 U.S. 912, 100 S. Ct. 3000, 64 L. Ed. 2d 862 (1980).

The testimony the defendants sought to discredit was that the plaintiff could no longer pay his bills or maintain his former lifestyle. There was evidence that the plaintiff would have earned a net income of $100,000 in the year of his injury. His disability payments amounted to one third of that amount. The trial court could reasonably have found that evidence of those payments was more prejudicial than probative.

We note that the defendants were given an opportunity to impeach the plaintiff’s credibility on financial issues, and did introduce evidence of the plaintiff’s prior bankruptcy and evidence that contradicted his claim of earning capacity. See State v. McDaniel, 176 Conn. 131, 135, 405 A.2d 68 (1978). The offered evidence of disability income would have been cumulative because it also related to his credibility about his finances. Considering the facts and circumstances of this case, we conclude that the trial court did not abuse its discretion by excluding evidence of the plaintiff’s disability insurance.

V

Before closing argument, the plaintiff apparently approached one of the jurors during a luncheon recess and attempted to engage him in conversation. The plaintiffs counsel subsequently moved that this juror be excused. Upon inquiry by the trial court, the juror claimed he could still be impartial but expressed a preference to be excused. The court excused the juror and the sole remaining alternate juror took his place. The defendants now assert that they were denied a verdict returned by the duly selected jury and are entitled to a new trial.

“Section 51-243 (a) of the General Statutes authorizes the trial court in a civil case to add two jurors to the jury panel to serve as alternate jurors. Section 51-243 (d) provides that ‘[i]f, at any time, any juror shall, for any reason, become unable to further perform his duty, the court may excuse him’ and substitute an alternate juror as part of the regular panel. The determination of whether a juror is unable to perform his or her duty is committed to the trial court’s sound discretion.” Rokus v. Bridgeport, 191 Conn. 62, 71-72, 463 A.2d 252 (1983). The juror involved in this incident claimed that his contact with the plaintiff would make it more difficult for him to reach a decision in this case. The record reveals that the trial court took this statement under serious consideration. In reviewing claims that the trial court abused its discretion “the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness; the ultimate issue is whether the court could reasonably conclude as it did. . . .’’Jacobsen v. Jacobsen, 177 Conn. 259, 263, 413 A.2d 854 (1979); see State v. Stankowski, 184 Conn. 121, 154-57, 439 A.2d 918, cert. denied, 454 U.S. 1052, 102 S. Ct. 596, 70 L. Ed. 2d 588 (1981). The court did not abuse its discretion in excusing the juror in this case.

VI

The defendants’ final claim is that the trial court improperly failed to set aside the verdict as excessive. They assert that the $460,000 award was disproportionate to the injuries sustained because the plaintiffs chief complaints were fatigue, headache, poor handwriting and problems with his gait. They further assert that there was no competent medical evidence linking the plaintiffs complaints to the claimed malpractice. We disagree.

“Where the trial court has denied a motion to set aside a verdict as excessive, we are limited to a determination of whether the court abused its discretion, and 'its decision “can be disturbed only by considerations of the most persuasive character, as where the verdict shocks the sense of justice or the mind is convinced that it is in fact entirely disproportionate to the injury. [W. Maltbie,] Conn. App. Proc., p. 151.” . . .’ (Citations omitted.) Champagne v. Raybestos-Manhattan, Inc., [212 Conn. 509, 557, 562 A.2d 1100 (1989)].” Samose v. Hammer-Passero Norwalk Chiropractic Group, P.C., supra, 108.

The plaintiff here testified that he was no longer able to continue his practice of podiatry at an estimated net loss of $100,000 per year for the remaining ten or eleven years of his working life. He also testified that as a result of his financial loss, he was unable to maintain his former standard of living, which in this case included home care of his elderly mother. Finally, both he and Fredericks testified to his continuing physical problems, which cause the plaintiff pain and depression on a daily basis and curtail his activities. “The amount of a damage award is a matter peculiarly within the province of the trier of fact, in this case, the jury.” Mather v. Griffin Hospital, supra, 138. The award may have been generous, but it does not shock the conscience.

The judgment is affirmed.

In this opinion the other judges concurred.

       During trial, the plaintiff withdrew his claims against Firoz Mistry, a physician also employed by Mount Sinai Hospital. The jury returned a verdict in favor of another defendant, Kishan Tandon, the plaintiffs treating physician. He is not a party to this appeal.

       Although the hospital’s request included those interrogatories of Whittemore relating to informed consent, it makes no claim that the plaintiffs allegations as to negligence in the failure of Whittemore to obtain the plaintiff’s informed consent relate in any way to it. The hospital, thus, does not claim that the plaintiff has alleged two causes of action against it.

       The defendants filed a joint brief and did not separate the claims that the hospital could properly raise from the claims that Whittemore could properly raise.

       The plaintiff concedes that the allegations in his complaint against Whittemore regarding the failure to obtain his informed consent state a separate cause of action from his allegations against WThittemore relating to negligence in the performance of the medical procedure, although all of the allegations are contained in one count.
      “The failure to make a sufficient disclosure, which is ordinarily the basis for claiming lack of informed consent, has been regarded by most courts as presenting the question, not whether there was an effective consent which would preclude an action for battery, but whether the physician had fulfilled his duty of informing the patient under the appropriate standard.” Logan v. Greenwich, Hospital Assn., 191 Conn. 282, 289, 465 A.2d 294 (1983); Shenefield v. Greenwich Hospital Assn., 10 Conn. App. 239, 246, 522 A.2d 829 (1987). A claim of lack of informed consent is an action in negligence. Here, the lack of informed consent claim is a different cause of action from the claim of negligence relating to the installation of the TPN line because the claims arise from a different group of facts. “ ‘A cause of action is that single group of facts which is claimed to have brought about an unlawful injury to the plaintiff and which entitles the plaintiff to relief.” Wade’s Dairy, Inc. v. Fairfield, 181 Conn. 556, 560, 436 A.2d 24 (1980).” Levine v. Town Plan & Zoning Commission, 25 Conn. App. 199, 207, 594 A.2d 9 (1991).

       See discussion in text, infra.

       The court charged as follows: “A plaintiff has the burden of proving not only an unjustified failure to disclose the risk of a proposed course of treatment, but that it violated the standard of care applicable, and also that the failure was the proximate cause of his injury. You will recall my earlier instructions with respect to proximate cause. Causal relationships exist when disclosure of significant risks incidental to treatment would have resulted in a decision by the patient to forego the treatment and that such withholding of consent would have been reasonable. The particular patient’s reaction had he received the information as to the risks involved is not the governing one with respect to the duty to inform. On that issue the standard is what a reasonable person in the patient’s position would have decided if suitably informed of all material perils bearing significance. The occurrence of the risk naturally must be harmful to the patient.”
      One of the defendant’s requests to charge concerned the objective standard of proof.

       The hospital properly could join Whittemore’s challenge of the instructions on medical malpractice in the performance of the particular procedure, causation and inferences. Our resolution of these issues as to Whittemore’s claims also disposes of the hospital’s claims.

        Baystate Moving Systems, Inc. v. Bowman, 24 Conn. App. 531, 590 A.2d 462 (1991), had not been decided as of the date of the defendants’ motion for directed verdicts.


source: Caselaw Access Project

author: Heiman, J.

license: Public Domain

text:
    State of Connecticut v. Roger B. Sherwood
    (8203)
    Daly, Norcott and Heiman, Js.
    Argued June 26
    decision released September 17, 1991

      Susan M. Hankins, assistant public defender, with whom, on the brief, was G. Douglas Nash, public defender, for the appellant (defendant).

      RichardF. Jacobson, assistant state’s attorney, with whom, on the brief, were Donald A. Browne, state’s attorney, and Robert A. Lacobelle, senior assistant state’s attorney, for the appellee (state).
   Heiman, J.

The defendant appeals from a judgment of conviction, rendered after a trial to the court, of sexual assault in the first degree with a deadly weapon in violation of General Statutes § 53a-70a (a), sexual assault in the third degree in violation of General Statutes § 53a-72a (a) (1) (B), unlawful restraint in the first degree in violation of General Statutes § 53a-95 (a), and attempted sexual assault in the first degree in violation of General Statutes §§ 53a-70 (a) and 53a-49. He claims that the trial court (1) improperly denied his motion to suppress identification testimony and (2) incorrectly admitted into evidence testimony concerning lost or destroyed evidence, denying his right to due process and a fair trial. We affirm the judgment of the trial court.

The trial court could reasonably have found the following facts. On July 25,1986, at about 3 a.m., the two victims, a twenty-three year old female and a nineteen year old male, were at St. Margaret’s Shrine in Bridgeport. The female victim observed a person walking across a parking area about thirty feet away. She suggested to the male victim that they leave the area, and they entered the male’s vehicle to do so. The vehicle would not start. The female victim observed the person approaching the car. She attempted to close the electric window, but was unable to do so because the car had stalled. As the person came closer to the car, the female victim saw that he was a man wearing a nylon stocking over his face and carrying a gun. The man approached the car, stood next to the passenger door and put a gun to the female victim’s head. The man said that if the male victim started the vehicle he would “blow [the female victim’s] brains out.” The male victim was ordered to place his hands on the dashboard of the car. The female victim was ordered to place her pocketbook on the floor and open the door of the vehicle. When she complied, her assailant placed a knife to her throat. He forced her to pull down her shorts and when she had done so he placed the handle of the knife in her vaginal area. He also pulled up her shirt and fondled her breasts. He then ordered her to perform fellatio upon him. Fearful that he would use the gun or knife, she complied.

The assailant ordered the female victim to get out of the car. She did so, and the assailant then ordered her to walk around the back of the vehicle to the driver’s side of the car, placed the gun to the head of the male victim, pointed the knife at the throat of the female victim and ordered the male victim to perform fellatio. The assailant turned away from the male victim who was then able to start the car and drive away. He went to a police station, reported the incident and described the perpetrator. The assailant left the female victim at the shrine and walked away. The female victim sought assistance at a house in the area and telephoned the police.

The female victim estimated that between ten and twenty-five minutes elapsed between the time that she first observed the perpetrator and the time that she was finally able to leave the shrine. She described her assailant as a male, wearing blue sweat pants and a shirt, with a nylon stocking over his face. She further stated that he was white or Hispanic, about five feet eight inches tall, of average build with a slightly hunched over posture. She described the knife as a folding type with a six or seven inch blade and a small amount of red on it. She also stated that the parking lot had dim lighting all around it.

The male victim described the assailant to the police as a white male, about six feet tall, of medium build, with light hair, and wearing blue sweat pants and a nylon stocking over his head. He also told the police that the perpetrator had displayed a gun and a knife. He stated that the lighting in the area was dim and that the interior light in the car was on. The perpetrator was close enough for the male victim to observe his appearance. He estimated that he was at the shrine with the assailant for between five and ten minutes.

When the female victim called for assistance, the police dispatched officers to the shrine. During the telephone call, the female victim described her assailant as a white male, approximately six feet tall, carrying a .357 magnum and wearing jogging pants and a white or light colored shirt.

Police officers were dispatched to Bridgeport Hospital in response to information from hospital personnel indicating that a man had made several telephone calls to the hospital seeking help, stating that he had done “something bad” in the area of St. Margaret’s Shrine. As a result of cooperation between the telephone repair service, hospital personnel and the police, one of these calls was traced to the residence of Robert W. Sherwood, the defendant’s father. Police officers were dispatched to the location from which the intercepted call was made. The defendant was found there and taken to the police station.

While the male victim was giving a statement to a police officer, another officer entered the room and said that they might have the suspect in custody. The male victim was taken to another room in the police station and asked to wait outside the door. He was also asked to give the police some phrase that had been used by the perpetrator during the confrontation. Attempts to have the suspect repeat the phrase were unsuccessful. The door into the room in which the suspect was being held was open. At the request of a police officer, the male victim looked into the room where he saw the defendant. The male victim then identified him as the perpetrator. He also observed several other persons in the room dressed in suits who he assumed were police officers. He advised the officer with him that the defendant was dressed differently than he had been at the shrine but that he was absolutely positive that the person whom he observed in the room at the police station was the perpetrator. At trial, he identified the defendant in the courtroom as the perpetrator.

I

The defendant first challenges the trial court’s denial of his motion to suppress the male victim’s identification of him. He asserts that the trial court incorrectly concluded that although the original out-of-court identification procedure was impermissively suggestive, under the totality of the circumstances the in-court identification was reliable and uncorrupted by the suggestive pretrial procedure. We disagree.

The state at trial and again on written and oral argument in this court has conceded that the procedure employed at the police station was impermissively suggestive. Thus, the trial court had to determine only whether the identification was nonetheless reliable, reliability being the keystone in determining the admissibility of identification evidence. State v. Vilhotti, 11 Conn. App. 709, 716, 529 A.2d 235 (1987). In order to determine reliability, the trial court is required to determine whether, under the totality of the circumstances, the identification is rendered unreliable because of the corrupting influence of the suggestive procedure previously employed. Manson v. Brathwaite, 432 U.S. 98, 114, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977).

In determining the reliability of an identification, the factors to be considered “ ‘include the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself.’ ” State v. Piskorski, 177 Conn. 677, 742, 419 A.2d 866, cert. denied, 444 U.S. 935, 100 S. Ct. 283, 62 L. Ed. 2d 194 (1979), citing Manson v. Brathwaite, supra.

Once the trial court found that the police had employed an identification procedure that was impermissively suggestive, the burden was cast on the state to establish by clear and convincing evidence that the subsequent identification was based on the victim’s independent recollection. State v. Mitchell, 204 Conn. 187, 204, 527 A.2d 1168, cert. denied, 484 U.S. 927, 108 S. Ct. 923, 98 L. Ed. 2d 252 (1987). “The reliability inquiry delineated in Manson is fact-bound and made on an ad hoc basis.” Id., 203.

The trial court carefully reviewed the identification evidence and applied the requisite factors to determine its reliability. Nothing in the record demonstrates that the trial court exceeded its prerogative in finding that the identification made by the male victim was, under the totality of the circumstances, reliable; State v. Piskorski, supra, 745; and that the procedure employed did not give rise to a substantial likelihood of irreparable misidentification such as to mandate the exclusion of the subsequent identification. State v. Smith, 165 Conn. 680, 684-85, 345 A.2d 41 (1974).

Our review of the entire record clearly establishes that the identification evidence was reliable and that the trial court acted properly in denying the defendant’s motion to suppress the identification.

II

The defendant next asserts that the trial court improperly admitted testimony concerning certain tangible objects that had been seized from the defendant by the police, and were subsequently lost or destroyed by the police. The defendant claims that this action on the part of the trial court denied him due process and a fair trial. We disagree.

The consideration of certain additional facts is necessary for the resolution of this issue. On July 25, 1986, a search warrant was issued permitting the police to search the defendant’s residence for certain items. Pursuant to the search warrant, the Bridgeport police executed the warrant and recovered from those premises certain items that were taken into possession by the police. All of the items recovered were lost or misplaced by the Bridgeport police prior to trial. At trial, the defendant objected to the state’s attempt to have the officer who had seized certain items under the warrant describe those items. Over the objection of the defendant, Officer Leonard Samatulski of the Bridgeport police department was permitted to testify as to items seized from the defendant’s house and was then permitted to describe in detail the appearance of a buck knife that had been recovered from a dresser drawer in the defendant’s bedroom and the appearance of a pistol grip that had been recovered from the same drawer. The buck knife was described as having a wood grain handle with two brass ends having a gold color. The knife was further described as being approximately four inches long when closed and about nine inches long when opened. The pistol grip was described as being marked with the number 357 and the name Crossman. The bases of the defendant’s objection to the description of the seized but missing evidence were that it impinged on his rights of confrontation and cross-examination and was irrelevant.

We first point out that the defendant does not claim that the lost evidence was either exculpatory or potentially exculpatory. Thus, he is not entitled to claim the applicability of the rule of Brady v. Maryland, 373 U.S. 87, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963) (prosecutorial suppression of exculpatory evidence), or the rule of Arizona v. Youngblood, 448 U.S. 51, 109 S. Ct. 333, 102 L. Ed. 2d 281 (1988) (failure to preserve potentially exculpatory evidence). See State v. Leroux, 18 Conn. App. 223, 227, 557 A.2d 1271 (1989).

“ ‘Evidence is admissible when it tends to establish a fact in issue or to corroborate other direct evidence in the case. One fact is relevant to another fact whenever, according to the common course of events, the existence of the one, taken alone or in connection with other facts, renders the existence of the other either certain or more probable. Unless excluded by some rule or principle of law, any fact may be proved which logically tends to aid the trier in the determination of the issue.” State v. Sharpe, 195 Conn. 651, 659, 491 A.2d 345 (1985). The main issue at trial was the identification of the defendant as the perpetrator. The defendant had been identified by one of the victims as the perpetrator of the crime, and the implements used in the commission of the crime, including the knife and pistol grip, had already been adequately described by both victims. Thus, in the context of the other evidence produced at trial, we conclude that these facts tended to establish identity and to corroborate other direct evidence in the case. Therefore, such evidence was clearly relevant.

The defendant posits, however, that even if the testimony was relevant, the destruction or loss of the evidence was prejudicial to his defense. “ ‘ “In considering whether testimony concerning lost or destroyed evidence should be admitted [or the underlying prosecution dismissed], the trial court has to look to numerous factors including [1] the reason for the unavailability of the evidence, [2] the materiality of the evidence, [3] the likelihood of mistaken interpretation of it by witnesses or the [trier of fact], and [4] the prejudice to the defendant caused by the unavailability of the evidence.’ . . .” (Citation omitted.) State v. Gonzalez, 206 Conn. 213, 224-25, 537 A.2d 460 (1988). As our Supreme Court has previously noted, “ ‘[t]he requirements of due process are met in the trial of a person accused of crime if he has been given the benefit of a fair and impartial trial in accordance with the settled course of judicial proceedings in this state.’ ” State v. Asherman, 193 Conn. 695, 724, 478 A.2d 227 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814 (1985).

The trial court carefully weighed all of the above factors in determining that the evidence before it was admissible. We cannot say that the trial court acted improperly in admitting the testimony about the lost or destroyed evidence. The officer who recovered the property had personal knowledge as to its character and appearance. He, as well as the victims who had described the implements employed, were subject to a full cross-examination by defense counsel. The evidence was not destroyed intentionally to deprive the defendant of its use at trial, nor was such a claim advanced. In addition, the defendant did not suffer prejudice as a result of its unavailability. State v. Boucino, 199 Conn. 207, 229, 506 A.2d 125 (1986). The trial court acted properly in admitting the contested testimony. See State v. McIver, 201 Conn. 559, 565, 518 A.2d 1368 (1986).

The judgment is affirmed.

In this opinion the other judges concurred.

       The police took into possession the following items: One 45 cal. bullet Rem-UNC; one plastic wood grain gun grip with the markings 357; one nine and one-half inch explorer buck knife with a four inch blade in a leather case; one box of Crossman .177 pellets; blue shorts with a possible blood stain; blue trunks with a possible blood stain; and a white sock with a possible blood stain.


author: O’Connell, J.

text:
    State of Connecticut v. Angel Luis Roman
    (9294)
    Daly, O’Connell and Heiman, Js.
    Argued June 4
    decision released September 17, 1991

      Donald D. Dakers, public defender, for the appellant (defendant).

      Leah Hawley, assistant state’s attorney, with whom, on the brief were Michael Dearington, state’s attorney, and David Gold, assistant state’s attorney, for the appellee (state).
   O’Connell, J.

The defendant appeals from his conviction, after a jury trial, of manslaughter in the first degree with a firearm in violation of General Statutes §§ 53a-55a and 53a-55 (a) (3). He also appeals from his sentencing for summary criminal contempt of court arising out of his conduct in the presence of the court during the trial. The defendant had previously pleaded guilty to carrying a pistol without a permit in violation of General Statutes § 29-35. The trial court imposed a twenty year prison sentence on the manslaughter conviction and five years on the pistol permit conviction, to run concurrently, plus six months for contempt of court to run consecutively. The defendant’s total effective sentence is twenty years and six months.

The defendant raises three issues relating to the contempt sentencing and also claims (1) that the trial court improperly instructed the jury on the defense that he had acted in the defense of a third person, (2) that defense counsel’s prior representation of the manslaughter victim should have barred him from representing the defendant, and (3) that the court relied on improper information in imposing sentence on the manslaughter conviction. We affirm the trial court’s judgment.

The jury could reasonably have found that the defendant observed three or four men punching a young teenager and, in an attempt to break up the altercation, the defendant, who was on the opposite side of the street, fired a shot from a handgun. The bullet struck and killed an innocent bystander.

At trial, the court found the defendant in contempt when he refused to comply with the court’s order to disclose the name of the friend from whom he claimed to have obtained the gun. The court delayed the imposition of a penalty on the contempt finding until the time of sentencing on the manslaughter and pistol permit convictions.

The defendant attempts in his appeal of the underlying manslaughter conviction to include his objections to the contempt process. He concedes that his refusal to answer a question, when directed to do so by the court, constituted criminal contempt and that the trial court had authority to punish him summarily for this contumacious refusal. Despite this concession, the defendant argues that the trial court’s sentencing procedure was improper and that he is entitled to review of the contempt proceeding by way of appeal to this court. We do not agree.

Our case law has unwaveringly held that a writ of error is the sole method of review of criminal contempt proceedings; Naunchek v. Naunchek, 191 Conn. 110, 113, 463 A.2d 603 (1983); and a writ of error can be brought only to the Supreme Court. Practice Book § 4143 (a); General Statutes § 52-272. The Appellate Court has no jurisdiction to entertain a writ of error. An appeal and a writ of error are totally distinct proceedings. An appeal is a stage in the prosecution of a case, but a writ of error is an independent action, commenced by service and return of process as in civil cases. Michelin v. MacDonald, 114 Conn. 582, 584, 159 A. 636 (1932).

The defendant cites no authority, nor has any come to our attention, that deferring sentencing on a summary criminal contempt finding until the time of sentencing on the underlying crime nullifies the writ of error requirement. Accordingly, we conclude that this court lacks jurisdiction to review the defendant’s summary contempt claims.

The defendant next claims that the trial court’s jury instruction on defense of a third person was incorrect because the court defined “great bodily harm” in terms of “serious physical injury.” The standard of review for this claim is whether it is reasonably possible that the jury was misled by the instruction. State v. DeJesus, 194 Conn. 376, 388, 481 A.2d 1277 (1984).

A person is justified in using deadly force if he reasonably believes that another person is (1) using or about to use deadly physical force, or (2) is inflicting or about to inflict great bodily harm. General Statutes § 53a-19 (a). Deadly physical force is defined by statute as “physical force which can be reasonably expected to cause death or serious physical injury.” General Statutes § 53a-3 (5). Accordingly, the threat of serious physical injury and the threat of great bodily harm are two separate and distinct justifications for the use of deadly force in defense of a third person. State v. Havican, 213 Conn. 593, 600, 569 A.2d 1089 (1990).

In the present case, the trial court instructed the jury that “[gjreat bodily harm is physical injury which creates a substantial risk of death or which causes serious disfigurement, serious impairment of health, or serious loss or impairment of a function of any bodily organ.” The state contends that this instruction, albeit improperly characterized as the definition of “great bodily harm,” did not mislead the jury because it adequately defined serious physical injury and was sufficient to conform with the defendant’s actual theory of defense, which was that the defendant was attempting to prevent serious physical injury to a third person.

The purpose of the jury charge is to assist the jury in applying the law correctly to the facts that it finds are established. Id., 603. “The test to be applied to any part of the charge is whether the charge, considered as a whole, presents the case to the jury so that no injustice will result.” State v. DeJesus, supra. We conclude that the trial court’s improper labeling of the definition of “serious physical injury” as a definition of “great bodily harm” did not mislead the jury, or result in an unjust rejection of the defendant’s justification theory. At best, this mislabeling amounted to harmless error.

The defendant also claims that his trial counsel should have been disqualified. Before the start of trial, the attorney who had been appointed to represent the defendant informed both the court and the defendant that he had previously represented the victim. Counsel expressed his opinion to the defendant and to the court that his knowledge of the victim’s background did not pose a potential conflict of interest because this case involved an accidental and unintentional death.

“ ‘A trial court has the obligation to inquire into the possibility of a conflict of interest when “it knows or reasonably should know” that a potential conflict exists.’ ” State v. Jennings, 216 Conn. 647, 655, 583 A.2d 915 (1990), quoting State v. Williams, 203 Conn. 159, 168, 523 A.2d 1284 (1987). The trial court thoroughly canvassed the defendant, who acknowledged awareness of the prior representation and was satisfied that it would not cause a problem. On the basis of the defense counsel’s representations and the defendant’s statements, the trial court allowed defense counsel to continue his representation of the defendant. At no time did defense counsel, or the defendant himself, object to the continued service of this counsel. To the contrary, they both advised the trial court that there was no reason why defense counsel should not continue in this case.

It is difficult to comprehend defense counsel’s reasoning on this claim. He is the same attorney who advised the trial court and the defendant that no conflict existed, yet he now comes before us and complains because the trial court allowed him to represent the defendant. It is fundamental that actions induced by the appellant cannot form the basis of a claim on appeal. State v. Day, 12 Conn. App. 129, 134, 529 A.2d 1333 (1987). “[A party] may not claim as error that which he has requested . . . .” LaCroix v. LaCroix, 189 Conn. 685, 688, 457 A.2d 1076 (1983); Nisbet v. Olmeda, 15 Conn. App. 6, 17, 544 A.2d 642 (1988). The trial court properly relied on defense counsel’s representations and on the defendant’s responses in determining whether the defendant was adequately apprised of the risk arising out of the prior representation. State v. Williams, supra, 170. We conclude that the record adequately discloses that the defendant knowingly and intelligently waived his right to complain about the victim’s prior representation by defense counsel.

Under the circumstances of this case, the defendant concedes that his constitutional right to effective assistance of counsel was not violated by his appointed attorney’s prior representation of the victim in an unrelated case. Instead, defense counsel seeks review because neither he nor the court considered the issue of whether his representation of the defendant constituted an ethical violation. With exceptions not applicable here, it is well established that issues not raised in the trial court will not be considered on appeal. State v. Bondi, 12 Conn. App. 417, 421, 531 A.2d 151 (1987). Consequently, we decline to review this issue.

The defendant next argues that the trial court improperly considered false and inaccurate information in determining the manslaughter sentence. When imposing sentence, a judge may consider matters that would not be admissible at trial. State v. Huey, 199 Conn. 121, 126, 505 A.2d 1242 (1986). Due process requires only that the information relied on have some minimal indicia of reliability. State v. Collette, 199 Conn. 308, 320, 507 A.2d 99 (1986). The information that the defendant argues was inappropriately considered by the court came solely from the evidence presented at trial. It was not extraneous material. The sentencing court properly considered the trial evidence, including the credibility of witnesses, for sentencing purposes. The sentencing court has broad discretion in imposing sentence within statutory limits. Id. We are not persuaded that the court abused this discretion.

The judgment is affirmed.

In this opinion the other judges concurred.

       The defendant has not appealed the pistol permit conviction.

       The defendant withdrew his appellate claim that the trial court failed to instruct the jury properly on the subjective standards applicable to the defense of justification.

       The pertinent part of General Statutes $ 53a-19 (a) provides: “[A] person is justified in using reasonable physical force upon another person to defend himself or a third person from what he reasonably believes to be the use or imminent use of physical force, and he may use such degree of force which he reasonably believes to be necessary for such purpose; except that deadly physical force may not be used unless the actor reasonably believes that such other person is (1) using or about to use deadly physical force, or (2) inflicting or about to inflict great bodily harm.”

       This is the statutory definition of serious physical injury as contained in General Statutes § 53a-3 (4).


author: Dupont, C. J. Heiman, J.,

text:
    In re Alexander V.

    (9408)
    Dupont, C. J., Norcott and Heiman, Js.
    Argued May 29
    decision released September 17, 1991

      JohnR. Williams, with whom were Diane Rolan and, on the brief, Sue L. Wise, for the appellant (respondent).

      Susan T. Pearlman, assistant attorney general, with whom were Patricia Lilly Harleston, assistant attorney general, and, on the brief, Richard Blumenthal, attorney general, and Nina F. Elgo and Carolyn K. Querijero, assistant attorneys general, for the appellee (petitioner).

      Howard Lawrence, for the minor child.

       In accordance with the spirit and intent of General Statutes § 46b-142 (b) and Practice Book § 2026, the names of the parties involved in this appeal are not disclosed. The records and papers of this case shall be open for inspection only to persons having a proper interest therein and upon order of the Appellate Court.

   Dupont, C. J.

The respondent appeals from the judgment that terminated her parental rights with respect to her minor son. The respondent contends (1) that the federal and state constitutions imposed a duty on the trial court to hold a hearing to determine if she was competent to understand the termination proceeding and to assist counsel effectively and (2) that she was ineffectively represented by counsel. The respondent does not challenge the merits of the court’s judgment. We affirm the trial court’s decision to terminate her parental rights.

Alexander Y. was born to the respondent on July 14, 1985. Shortly thereafter, the department of children and youth services (DCYS) received a referral from Yale-New Haven Hospital concerning the respondent’s ability to care for her child. Since that time, Alexander has been in and out of foster care and has been under the supervision of DCYS. Since 1988, he has resided in the same foster home. DCYS filed a petition to terminate the respondent’s parental rights, and, after a three day trial, the court rendered judgment terminating the respondent’s parental rights.

It is clear from the record that the respondent’s mental status was a significant issue in the case. Her mental stability as it affected her ability to raise her child permeated the substantive issues. The issue of her competency to understand the proceedings and to assist her counsel in those proceedings, however, is raised for the first time on appeal. The respondent did not, therefore, preserve this claim for review. She can prevail on it only if “all of the following conditions have been met: (1) the record is adequate to review the alleged claim of error; (2) the claim is of constitutional magnitude alleging the violation of a fundamental right; (3) the alleged constitutional violation clearly exists and clearly deprived the [respondent] of a fair trial; and (4) if subject to harmless error analysis, the state has failed to demonstrate harmlessness of the alleged constitutional violation beyond a reasonable doubt.” (Emphasis in original.) State v. Golding, 213 Conn. 233, 239-240, 567 A.2d 823 (1989).

Here, there is an adequate record and a claim of constitutional magnitude implicating a fundamental right. The right of a parent to raise his or her children has been recognized as a basic constitutional right. Stanley v. Illinois, 405 U.S. 645, 651, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); Lehrer v. Davis, 214 Conn. 232, 236, 571 A.2d 691 (1990); In re Juvenile Appeal (Docket No. 10155), 187 Conn. 431, 435, 446 A.2d 808 (1982); State v. Anonymous, 179 Conn. 155, 162-63, 425 A.2d 939 (1979). Thus, the first two Golding conditions are met, and we next consider whether a constitutional violation clearly exists and whether the respondent was clearly deprived of her right to a fair trial.

Whether a constitutional violation exists depends on whether procedural due process was accorded to the respondent. The respondent asks us to conclude that the liberty interest of a parent in his or her parental rights is sufficiently similar to the liberty interest of a criminal defendant, thereby requiring, as a matter of procedural due process, a hearing to decide if a parent is competent to understand the proceedings and to assist counsel. The respondent claims, in effect, that the procedural protection set forth in General Statutes § 45a-708 (a) is insufficient to protect her rights and seeks a procedure similar to that accorded to defendants in criminal cases. See General Statutes § 54-56d. The respondent claims that the same consequences should ensue if she were to be found incompetent as are provided in § 54-56d, including a stay of the termination proceeding.

In re Juvenile Appeal (Docket No. 10155), supra, relies on Mathews v. Eldridge, 424 U.S. 319, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976), to determine the elements to be considered and weighed in deciding what is required by due process in a termination of parental rights proceeding. The three elements to be considered, as set forth in Mathews, are “[f]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews v. Eldridge, supra, 335. Phrased differently, we must determine if the private interest of the respondent in the companionship, love and control of her child is at risk of being erroneously terminated because of the lack of an adequate procedural safeguard that could be provided for her without disregarding the state’s interest in the well-being of the child and the fiscal and administrative burden on the state.

The parent’s desire for and right to “the companionship, care, custody, and management of his or her children” is a fundamental interest that “undeniably warrants deference and, absent a powerful countervailing interest, protection.” Stanley v. Illinois, supra; see also In re Juvenile Appeal (Docket No. 10155), supra. Thus, the first factor of Mathews, namely, the respondent’s interest in retaining her parental rights, is present. That interest is basic and private, and subject to complete destruction by state action.

The second factor of Mathews to be considered is whether the failure to hold a hearing to determine the respondent’s ability to comprehend the proceedings and to assist counsel creates a risk of an erroneous deprivation of her parental interest. The respondent’s position is that the trial court should have ordered, or her counsel should have sought, a hearing to determine her competency. The risk of an erroneous deprivation is to be tested by the record. See In re Juvenile Appeal (Docket No. 10155), supra, 436-37.

The record suggests that the respondent understood the nature and gravity of the hearing. In the course of her dealings with DCYS, she had six court-appointed counsel, none of whom raised any question as to her mental competency. Not one of them, either in prior cases or in this one, questioned her capability of assisting in the preparation of her case. She participated in the termination proceeding by testifying about her relationship with her child. Finally, in response to a direct question by the court, she indicated that she understood that the proceeding concerned the termination of her rights to her child. Although the respondent was not present during the entire three consecutive days of the termination proceeding, she was aware of its time and place. We see no evidence in the record that would compel the trial court to question the respondent’s competency.

The respondent requests the same due process rights in parental termination proceedings as are granted in criminal trials. Different interests, however, are involved in civil cases than in criminal cases. The legislature has recognized this distinction by enacting different procedures to protect the rights of incompetent parties in civil and criminal actions. Criminal trials are governed by § 54-56d, which provides that “[a] defendant shall not be tried, convicted or sentenced while he is not competent” and requires the moving party to prove by clear and convincing evidence that the defendant is not competent. General Statutes § 45a-132 controls most civil cases and provides that a judge may appoint a guardian ad litem for any minor or incompetent.

A criminal case and most civil cases are two-sided, whereas termination of parental rights cases are three-sided, involving the child, the parent and the state. The legislature has recognized this distinction and has specifically provided for the appointment of a guardian ad litem to represent the interests of an incompetent parent in such cases. General Statutes § 45a-708 (a). Section 45a-708 (a) provides for a different treatment of respondents in a parental termination action than is provided by other statutes for other types of parties.

The respondent here was at all times represented by appointed counsel, and she has not claimed that the trial court improperly failed to appoint a separate guardian ad litem. The legislature has provided a mechanism for protecting allegedly incompetent parents in termination of parental rights proceedings. Here, the record does not indicate that there was a need to use that mechanism. The risk of an erroneous deprivation of the respondent’s parental rights because of a lack of a competency hearing, therefore, was minimal, if the risk existed at all.

The third balancing factor of the Mathews test concerns the government’s interest as parens patriae in the termination of parental rights. “ ‘[T]he ultimate standard underlying the whole statutory scheme regulating child welfare is the “best interest of the child.” In re Juvenile Appeal (Docket No. 10155), supra, 439. Because of the psychological effects of prolonged termination proceedings on young children, time is of the essence in custody cases. Id. On the facts of this case, we conclude that it is not necessary to impose on the state the fiscal and administrative burden of a competency hearing similar to that provided in criminal cases by § 54-56d.

As applied to the facts of this case, the balancing test of Mathews does not support the respondent’s claim that a constitutional violation clearly existed and clearly deprived her of her right to a fair trial. The third prong of Golding is, therefore, unsatisfied.

A parent’s right to the effective assistance of counsel in termination of parental rights cases derives from State v. Anonymous, supra. Under that standard, an appellant must prove that both counsel’s trial performance fell below the range of competence of ordinary skill and the outcome of the termination of parental rights proceeding would have been different had the representation been competent. The respondent’s claims of ineffectiveness are hydra-like. She claims various errors, such as ineffective cross-examination, failure to object to questions, and failure to move to strike testimony. These claims are baseless.

The record reveals overwhelming admissible expert and documentary evidence that supported the trial court’s judgment on all three grounds alleged by the petitioner. In view of that evidence, we believe that the respondent has failed to meet her burden of proving that any alleged inadequacy affected the outcome of the termination proceedings.

The respondent’s claim that the failure to seek an evidentiary hearing regarding her competency to comprehend the proceedings and assist counsel effectively was tantamount to ineffective assistance of counsel falls with her procedural due process claim.

The respondent also argues that counsel was incompetent by allowing the trial to proceed when she was not present. In the case of In re Jonathan P., 23 Conn. App. 207, 213-14, 579 A.2d 587 (1990), we held that where the parent was precluded from participating in part of a hearing because he was imprisoned, it was plain error for the court to have proceeded without the parent’s presence. This case, however, is inapposite. It is apparent from the record that the respondent was present for part of the proceedings, had full knowledge of the hearing dates, and was able to come to court. Under these circumstances, we believe that the respondent waived her right to be present at trial. See State v. Durkin, 219 Conn. 629, 595 A.2d 826 (1991); In re Juvenile Appeal (Docket No. 10155), supra, 440-41.

The judgment is affirmed.

In this opinion Norcott, J., concurred.

Heiman, J.,

concurring. While I agree with the judgment affirming the trial court, I do not agree with all of the legal analysis or legal conclusions contained in the majority’s opinion, and, thus, I write separately to express my departure from the reasoning of the court and my reasons therefor.

In the first instance, parents have a significant, constitutionally protected, right to raise their children without the coercive interference of the state. Lehrer v. Davis, 214 Conn. 232, 237, 571 A.2d 691 (1990). This does not mean, however, that the family is beyond state regulation. McGaffin v. Roberts, 193 Conn. 393, 401, 479 A.2d 176 (1984), cert. denied, 470 U.S. 1050, 105 S. Ct. 1747, 84 L. Ed. 2d 813 (1985). What it does mean is that if the state wants to exercise its duty to ensure the welfare of the child, it must afford procedural due process to all of the parties. Lehrer v. Davis, supra.

I do not agree with the majority when it opines that General Statutes § 45a-708 (a) provides, in itself, adequate due process protection in a case where the record reflects that a parent, whose parental rights are being terminated, is incompetent at the time of trial to understand the nature and import of the proceeding and to assist counsel in protecting his or her interests. In such a case, due process demands that the trial court act promptly to determine the competency of the respondent. Until such a determination is made, the scale that permits state action has not yet tipped to such a degree as to permit termination. The risk of erroneous deprivation of parental rights under such circumstances is too great; see Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976); to satisfy the requirement of procedural due process. Lehrer v. Davis, supra. While the requirement of due process does not mandate any particular procedure, such as an adherence to the format of General Statutes § 54-56, it does require that certain safeguards exist in whatever procedural form is afforded. Statewide Grievance Committee v. Rozbicki, 219 Conn. 473, 484, 595 A.2d 819 (1991).

The fact that protection of procedural due process rights may involve some fiscal or administrative burden is not an excuse to refuse such protection where, as here, no other adequate protection exists. The extent of the process that is due “depends upon the intrusiveness of the competing state concern.” Lehrer v. Davis, supra, 237-38. Here, the result would be the total elimination of the parent-child relationship, the most serious and intrusive action that is possible to contemplate in this area of the law. See Lassiter v. Department of Social Services, 452 U.S. 18, 27, 101 S. Ct. 2153, 68 L. Ed. 2d 640 (1981). Thus, in an appropriate case, due process demands that the court act to determine the competency of any party to understand the nature of the proceedings and to assist counsel. See Mathews v. Eldridge, supra. In this case, the record does not support the claim that such action was necessary on the part of the trial court.

Accordingly, while I concur in the result, I do not endorse all of the legal analysis by which the majority reaches its conclusion.

       “The due process provision of the Connecticut constitution has the same meaning and imposes similar limitations as that of the federal constitution.” State v. Anonymous, 179 Conn. 155, 162 n.4, 425 A.2d 939 (1979).

       The petition was based on three grounds of General Statutes § 17a-112 (b). The trial court concluded that the state had proved all three grounds by clear and convincing evidence.

       General Statutes § 45a-708 (a) provides: “When, with respect to any petition filed under section 17a-112, section 45a-715 or section 45a-716, it appears that either parent of the child is a minor or incompetent, the court shall appoint a guardian ad litem for such parent. The guardian ad litem shall be an attorney-at-law authorized to practice law in Connecticut or any duly authorized officer of a child-placing agency if the agency is not the petitioner.” (Emphasis added.)

       The respondent points to a finding that she was incompetent to stand trial for a period of two months in a related criminal proceeding as evidence of her possible mental incompetence to stand trial. That finding, however, was made six months after the present proceeding, was obviously not known to the trial court, and is not evidence of her mental condition at the time of trial.

       General Statutes § 45a-132 provides in pertinent part: “(a) In any proceeding before a court of probate or the superior court . . . the judge or magistrate may appoint a guardian ad litem for any minor or incompetent, undetermined or unborn person ... if it appears to the judge or magistrate that one or more persons as individuals . . . have or may have an interest in the proceedings, and that one or more of them are minors, incompetent persons ... at the time of the proceeding.
      “(b) The appointment shall not be mandatory, but shall be at the discretion of the judge or magistrate.” (Emphasis added.)

       In the event that a parent is represented by a guardian ad litem, the duties of an appointed guardian are to take all necessary steps to promote and protect the ward’s interest in the litigation. In Interest of JIW, 695 S.W.2d 513, 518 (Mo. App. 1985).
      Similarly, the role of counsel for a parent is to explain fully the nature of the proceedings to the client, determine the client’s informed position, negotiate and advocate for necessary and appropriate services, and oppose the petition in accordance with a determination of the client’s position.
      We need not decide whether a parent whose rights are subject to termination might require both appointed counsel and a guardian ad litem because of a potential conflict of interests. See In Interest of JIW, supra (holding that appointing both counsel and a guardian ad litem would be duplicative); but see South Carolina Department of Social Services v. Powell, 278 S.C. 79, 292 S.E.2d 299 (1982); South Carolina Department of Social Services v. McDow, 276 S.C. 509, 280 S.E.2d 208 (1981) (requiring the appointment of both counsel and a guardian ad litem). We also need not decide whether General Statutes § 45a-708 (a) would allow one person to fulfill the function of both counsel and guardian ad litem.

       Although General Statutes § 45a-708 (a) does not provide for any particular procedure for the initiation of a competency hearing, there may be parental termination cases where due process would require a trial court to hold a competency hearing on its own motion. See Statewide Grievance Committee v. Rozbicki, 219 Conn. 473, 484, 595 A.2d 819 (1991).

       Ordinarily, the right to effective assistance of counsel is a right accorded to defendants in criminal cases, as opposed to civil cases. “Where, however . . . a statute . . . or practice book rule . . . mandates the assistance of counsel, it is implicit that this means competent counsel. Because of the substantial interests involved, a parent in a termination of parental rights hearing has the right not only to counsel but to the effective assistance of counsel.” State v. Anonymous, 179 Conn. 155, 160, 425 A.2d 939 (1979).