Kos v. Lawrence + Memorial Hospital ( 2020 )

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LAURA KOS ET AL. v. LAWRENCE +
MEMORIAL HOSPITAL ET AL.
(SC 20256)
Robinson, C. J., and Palmer, McDonald, D’Auria,
Mullins, Kahn and Ecker, Js.
Syllabus
The plaintiffs, K and her husband, sought to recover damages from the
defendants, G, a physician, and G’s medical practice, for personal injuries
that K had suffered in connection with G’s alleged negligence in, inter
alia, failing to perform a proper and adequate episiotomy repair after
the birth of the plaintiffs’ son. G had performed an episiotomy to facilitate
the delivery of the plaintiffs’ son. After the delivery, G evaluated K
and diagnosed her with a third degree episiotomy extension, which G
repaired. After the repair was completed, G performed a digital examina-
tion of K’s rectum and determined that there were no breaks or defects
in K’s rectal mucosa. Although an exam of K’s perineum the day after
the delivery indicated no issues with the repair, K subsequently reported
complications, including pain, an infection, and a rectovaginal fistula
that required surgery. At trial, the plaintiffs’ expert witness, Y, testified
that the standard of care requires that a physician, after performing
an episiotomy, correctly diagnose and repair the episiotomy and any
extension thereof, which must involve a thorough rectal examination
before the repair. Y also testified that G failed to satisfy the standard
of care because, in failing to conduct a proper examination, G misdiag-
nosed and repaired the episiotomy extension as a third degree rather
than a fourth degree extension, and that this error led to the rectovaginal
fistula. According to the defendants’ expert, L, G complied with the
standard of care, which required that the rectal exam be performed
after rather than before the episiotomy repair. L also testified that G had
correctly diagnosed and repaired a third degree episiotomy extension.
Finally, another expert witness presented by the defendants testified
that K’s rectovaginal fistula was not caused by an unrepaired fourth
degree episiotomy extension but, rather, an infection. The trial court
instructed the jury that the plaintiffs had alleged that G breached the
standard of care by failing to identify a fourth degree episiotomy exten-
sion and by failing to properly examine and adequately repair a fourth
degree extension. The court also charged the jury on the acceptable
alternatives doctrine concerning the standard of care for conducting
the digital rectal examination. The jury returned a verdict in favor of
the defendants, finding that the plaintiffs had sustained their burden of
establishing the standard of care but failed to sustain their burden of
establishing that G breached the standard of care. On appeal, the plain-
tiffs claimed, inter alia, that the trial court improperly instructed the
jury by including a charge on the acceptable alternatives doctrine and
limiting their allegations regarding breach of the standard of care. Held:
1. Although the trial court improperly instructed the jury on the acceptable
alternatives doctrine, that charge was harmless under the circumstances
of the present case, and this court declined the plaintiffs’ request to
abolish that doctrine: the inclusion of an acceptable alternatives charge
in the court’s instructions was improper when the testimony of both
parties’ experts failed to establish that conducting a rectal examination
either before or after the episiotomy repair was an acceptable method
of diagnosing the particular degree of the extension, as Y testified that
the examination should be performed before the repair, whereas L
testified that it should be performed after the repair and that an examina-
tion prior to the repair generally was not an approved method of diagnos-
ing the degree of the extension, and when the parties argued during
summation that there was only one proper method of examination to
properly diagnose the degree of the extension and neither party argued
that G chose between two acceptable alternatives in performing the
examination after the repair; nevertheless, the trial court’s improper
inclusion of an acceptable alternatives charge in its jury instructions
was harmless, as that error would not have confused or misled the jury
because, whether G properly performed the rectal examination mattered
only if there was a fourth degree episiotomy extension, and the jury
necessarily found that there was no fourth degree extension in finding
that G did not breach the standard of care, and the improper charge
did not otherwise interfere with the jury’s determination regarding the
credibility of the experts or exculpate G by suggesting that both methods
of examination were accepted within the medical community; moreover,
this court declined the plaintiffs’ request to abolish the acceptable alter-
natives doctrine, as it determined that this case, in which the doctrine
was held to be inapplicable, was not the appropriate case for deciding
whether the doctrine should be abolished.
2. The trial court’s supplemental instruction, in response to the jury’s request
for clarification, that the plaintiffs’ expert, Y, testified that an internal
rectal examination must be performed prior to an episiotomy repair as
a required component of the standard of care, did not improperly limit
the plaintiffs’ allegations regarding breach of the standard of care: the
trial court’s response to the jury’s request for clarification was consistent
with the evidence presented at trial and how the plaintiffs’ counsel had
argued the case to the jury, and nothing in the supplemental instruction
negated the plaintiffs’ allegation that, by breaching the standard of care
in failing to perform an examination before the repair, G failed to diag-
nose and repair a fourth degree extension; moreover, in reading the
trial court’s charge as a whole, this court determined that it was clear
that the trial court instructed the jury that the plaintiffs’ allegations
regarding breach of the standard of care included insufficient inspection,
diagnosis and repair of a fourth degree extension and, accordingly,
would not have confused and misled the jury into determining that,
even if a fourth degree extension had existed, the defendant did not
breach the standard of care; furthermore, to the extent that the court’s
supplemental instruction did limit the plaintiffs’ allegations, a second
supplemental instruction by the court, which contained language nearly
identical to the language the plaintiffs sought to include in the first
supplemental instruction, cured any error in the first supplemental
instruction.
Argued October 15, 2019—officially released March 10, 2020
Procedural History
Action to recover damages for, inter alia, medical
malpractice, brought to the Superior Court in the judi-
cial district of New London, where the action was with-
drawn as to the named defendant et al.; thereafter, the
case was tried to the jury before Bates, J.; verdict for
the defendant Elisa Marie Girard et al.; subsequently,
the court denied the plaintiffs’ motion to set aside the
verdict and rendered judgment in accordance with the
verdict, from which the plaintiffs appealed. Affirmed.
Alinor C. Sterling, with whom, on the brief, was
Kathleen L. Nastri, for the appellants (plaintiffs).
Stuart C. Johnson, with whom were M. Karen Noble
and, on the brief, Michael R. McPherson, for the appel-
lees (defendant Elisa Marie Girard et al.).
Opinion
D’AURIA, J. In this medical malpractice case, the
plaintiffs, Laura Kos and Michael Kos,1 appeal following
the trial court’s denial of their motion to set aside the
jury’s verdict in favor of the defendants Elisa Marie
Girard and Physicians for Women’s Health, LLC,2 on
the ground that the trial court improperly instructed
the jury by (1) including a charge on the acceptable
alternatives doctrine, and (2) limiting their allegations
regarding Girard’s breach of the standard of care. Alter-
natively, they request that this court abolish the accept-
able alternatives doctrine. Although we agree with the
plaintiffs that the trial court improperly instructed the
jury on the doctrine of acceptable alternatives, because
we find this error harmless and because we decline to
take this opportunity to abolish the acceptable alterna-
tives doctrine, we affirm the judgment of the trial court.
Reading the record, as we must, in the light most
favorable to sustaining the verdict for the defendants,
reveals that the jury reasonably could have found that,
on August 19, 2011, the plaintiff gave birth to a son at
Lawrence + Memorial Hospital in New London. Girard,
who was employed by Physicians for Women’s Health,
LLC, in Groton, was the physician on call at the time.
During labor, after the plaintiff had been pushing for
approximately two hours, Girard decided to use a vac-
uum to assist in the delivery. When Girard’s use of the
vacuum was unsuccessful, Girard performed a median
episiotomy—a surgical cut made in the perineum (the
muscular area between the vagina and the anus) from
the vagina toward the rectum—to reduce the tight band
of tissue around the baby’s head that restricted his
movements. Girard testified that this episiotomy was
the equivalent of a second degree laceration. See foot-
note 3 of this opinion.
After performing the episiotomy, Girard successfully
delivered the plaintiffs’ son. Because Girard had used
a vacuum and had performed an episiotomy, the plain-
tiff was at risk of sustaining an extension of the episiot-
omy, requiring Girard to inspect the plaintiff’s vaginal
tissue. An extension of the episiotomy is diagnosed by
degree, with first degree involving the least amount of
tissue trauma and fourth degree involving the most
severe trauma.3
In conducting the inspection, Girard first inspected
the plaintiff’s cervix and surrounding tissue, looking for
tears, bleeding, or hematomas. Upon finding no issues,
Girard then used a laparotomy pad (gauze) to block
any bleeding from the uterus, which usually bleeds after
a vaginal birth, and to have an unobstructed view of
the lower vagina, perineal tissue, and rectum. Girard
focused on the area of the episiotomy, inspecting for
an extension. Through visual inspection and physical
manipulation by gloved hands, Girard determined that
the episiotomy had extended through the plaintiff’s anal
sphincter, which was separated. Because of the injury
to the anal sphincter, Girard was able to see the outer
aspects of the rectal mucosa and to feel that it was
intact. Because the rectal mucosa was intact but the
anal sphincter was torn, Girard diagnosed the plaintiff
with a third degree extension of the episiotomy, which
she then repaired. See footnote 3 of this opinion.
After repairing the tear, Girard inspected the repair
and conducted a digital rectal exam. Although Girard
had examined the outer aspect of the rectal mucosa
before the repair, she wanted to feel the internal side
to ensure that the perineal body and sphincter muscles
were adequately repaired, that bulk and tone were
appropriate, that thickness between the tissue was
appropriate, and that there were no breaks or defects.
There was no indication of a tear or defect in the plain-
tiff’s rectal mucosa. Girard did not conduct a digital
rectal exam before the repair because she was trained
to perform the exam after the repair to prevent contami-
nation to the open wound.
The day after the delivery, prior to the plaintiff’s dis-
charge from the hospital, the repair of the perineum
was inspected and found to be intact. The plaintiff’s
medical records do not indicate that, as of that time,
she was complaining of discharging stool or flatus (gas)
from her vagina. In a follow-up appointment, however,
on September 1, 2011, she reported vaginal discomfort
and stool coming out of her vagina. An opening in the
episiotomy site of less than half a centimeter was noted,
along with discharge that looked and smelled like stool.
In a subsequent follow-up appointment with another
physician, although the plaintiff did not bring any medi-
cal records with her, she reported that she had sus-
tained a fourth degree extension of the episiotomy dur-
ing birth and a rectovaginal fistula—an opening
between her vagina and rectum. At that time, she com-
plained of perineal pain and was concerned about hav-
ing developed an abscess. An examination did not estab-
lish the existence of a rectovaginal fistula, but the
plaintiff’s symptoms—including the discharge and the
smell—were consistent with a rectovaginal fistula. The
opening in the vagina that previously had been noted
was not detected. Additionally, the examination estab-
lished that the plaintiff suffered from a sphincter sepa-
ration.
The plaintiff later reported concerns that she had an
infection, complaining of drainage from a hole in her
perineum. She also complained of pain and redness,
which, along with the drainage, were signs of infection.
No rectovaginal fistula was detected. Upon further
examination, Richard Bercik, an urogynecologist, noted
that the episiotomy repair was intact but discovered
a small rectovaginal fistula just inside the posterior
fourchette and sphincter complex. John Gebhart, a uro-
gynecologist at the Mayo Clinic, also noted the exis-
tence of the rectovaginal fistula, as well as granulation
tissue (a sign of infection), and two other openings in
the vaginal wall, although neither led to the rectum.
The size of the rectovaginal fistula was described as ‘‘a
very small hole . . . .’’ The plaintiff thereafter under-
went surgery to repair the rectovaginal fistula and the
sphincter separation.
The plaintiffs later filed this medical malpractice
case. In counts one and three of the operative complaint
the plaintiff alleged claims of medical malpractice
against the defendants. In counts two and four, the
plaintiffs alleged claims of loss of consortium against
the defendants on behalf of Michael Kos. Specifically,
they alleged that Girard was negligent in that she had
failed to identify a fourth degree extension of the
median episiotomy, failed to perform a proper and ade-
quate episiotomy repair, and failed to properly examine
the episiotomy repair after it was complete. They
alleged that Physicians for Women’s Health, LLC,
Girard’s employer, was vicariously liable for Girard’s
negligence. They further alleged that, as a result of
Girard’s negligence, the plaintiff sustained serious injur-
ies, including a rectovaginal fistula and an anal sphinc-
ter defect.
At trial, the plaintiffs presented the plaintiff’s medical
records, testimony from physicians who treated her
after the birth of her son, and expert testimony from
Brett C. Young, a maternal fetal medicine specialist,
obstetrician and gynecologist. The defendants pre-
sented expert testimony from Frank Wen-Yung Ling,
an obstetrician and gynecologist, as to the standard of
care, and from Michael K. Flynn, a urogynecologist, as
to causation.
At the close of evidence, the defendants requested
that the trial court include a charge on the acceptable
alternatives doctrine concerning the standard of care
for conducting the digital rectal exam. The plaintiffs
objected, but the trial court overruled the objection and
gave the requested charge. After requesting clarification
of the court’s instructions; see part I A of this opinion;
the jury reached a verdict in the defendants’ favor.
According to the jury interrogatories, the jury found
that the plaintiffs had sustained their burden of estab-
lishing the standard of care but had failed to sustain
their burden of establishing that Girard had breached
the standard of care. The plaintiffs then filed a motion
to set aside the verdict, arguing that the jury had been
improperly instructed on the doctrine of acceptable
alternatives. The trial court denied the motion. The
plaintiffs appealed to the Appellate Court, and the
appeal was transferred to this court pursuant to General
Statutes § 51-199 (c) and Practice Book § 65-1. Addi-
tional facts will be set forth as required.
I
The plaintiffs first claim that the trial court improp-
erly instructed the jury by including a charge on the
acceptable alternatives doctrine because no evidence
supported the charge. The plaintiffs argue that, to give
the instruction, an expert had to testify that there was
more than one proper technique for conducting the
digital rectal exam, and that the experts’ dueling opin-
ions about when to conduct the exam—before or after
the episiotomy repair—was not the equivalent of testi-
mony that either option was an acceptable alternative.4
The plaintiffs further contend that this improper charge
was harmful because it was inapplicable and its inclu-
sion interfered with the jury’s assessment of credibility
by exculpating the defendants and implying that
Girard’s actions were reasonable. Alternatively, the
plaintiffs ask this court to abolish the acceptable alter-
natives doctrine.
The defendants respond that the acceptable alterna-
tives charge was proper because there was evidence
that there was more than one approved technique
within the medical community. They contend that the
evidence supports the charge as long as there is expert
testimony supporting more than one proper method,
even if an expert does not specifically state that both
methods are acceptable. Alternatively, the defendants
argue that any impropriety was harmless because it did
not affect the central issue regarding liability—whether
a third or fourth degree extension of the episiotomy
occurred. Moreover, the defendants contest the plain-
tiffs’ argument that the charge exculpated the defen-
dants or interfered with the jury’s credibility determi-
nation.
We agree with the plaintiffs that the acceptable alter-
natives charge was improper but agree with the defen-
dants that it was harmless. Because we determine that
any error was harmless, we decline to take this opportu-
nity to abolish the acceptable alternatives doctrine.
A
The following additional facts and procedural history
are necessary to our review of this claim. At trial, in
addition to the plaintiff’s medical records and testimony
from her treating physicians, the plaintiffs offered
Young’s expert testimony. Young testified that the stan-
dard of care required that a doctor, after performing
an episiotomy, must correctly diagnose and repair the
episiotomy and any extension thereof. To do so, Young
testified, a doctor must conduct a thorough examina-
tion before repairing the episiotomy and any extension.
This includes a digital rectal exam, which involves plac-
ing a gloved finger into the anus and lifting up toward
the vagina to identify whether the gloved finger can be
seen from the vagina, meaning that a hole exists
between the anus and the vagina. Young testified that
the digital rectal exam must be conducted before
repairing the episiotomy because, otherwise, the exten-
sion will be repaired as a third degree extension, not
a fourth degree extension, and, once repaired, it is more
difficult to examine the rectal mucosa because the vagi-
nal tissue is no longer ‘‘splayed’’ open.
Young opined that Girard failed to satisfy this stan-
dard of care ‘‘because she failed to identify a fourth
degree laceration . . . [which] subsequently had the
complication of breaking down and opening the sphinc-
ter . . . causing [the plaintiff to experience] inconti-
nence and pain.’’ The basis for this opinion was that,
by failing to conduct a proper exam, Girard misdiag-
nosed and repaired the episiotomy extension as third
degree, rather than as fourth degree. Young testified
that this error caused a rectovaginal fistula, which
allowed for the passage of fecal matter and gas through
the anus to the vagina, contaminating and weakening
the repair of the anal sphincter. Young conceded, how-
ever, that, if the plaintiff had sustained only a third
degree episiotomy extension, she had ‘‘no criticism of
how [Girard] did the repair . . . .’’
In contrast, Ling testified on behalf of the defendants
that the standard of care required that a digital rectal
exam be performed after an episiotomy repair, not
before, and that Girard had complied with this standard
of care. Specifically, he testified that, once the perineal
muscles and anal sphincter tear, the rectal mucosa must
be carefully inspected to determine whether there is
a fourth degree extension. He testified that, first, the
physician must conduct an external inspection using
gloved hands to spread open the vaginal tissue to look
at the laceration. Ling testified that a physician should
be able to make a diagnosis after this visual inspection
because, once the anal sphincter muscle is separated,
the tissue will be splayed open so that the physician
will either see the outside of the rectum (meaning there
is a third degree extension) or the inside of the rectum
and the rectal mucosa (meaning there is a fourth degree
extension). He testified that it is ‘‘almost impossible’’
not to visually diagnose a fourth degree episiotomy
extension.
Only after repairing the extension, according to Ling,
does a physician then conduct a digital rectal exam,
feeling for whether the rectal mucosa is intact and
smooth. He explained that ‘‘[p]utting a gloved finger in
the rectum before you do the repair is actually frowned
upon by a lot of folks because of how easy it is to
make a diagnosis without putting a gloved finger in
the [rectum] and the fact that doing a gloved finger
examination of the rectum is not itself innocuous, mean-
ing there are negative consequences. . . . When you
do fix it or repair it, it would be compromised by more
bacteria or more contamination, which could cause a
breakdown and can cause more problems . . . [like] a
greater chance of infection or failure of that episiotomy
[repair]. You might even worsen a problem by creating
a hole by putting your finger in the rectum.’’ Because
of these risks, Ling opined, the standard of care does
not require a rectal exam before the episiotomy repair,
but, rather, such a procedure ‘‘goe[s] beyond’’ the stan-
dard of care by ‘‘bring[ing] . . . additional risks
. . . .’’
Although Ling testified that Girard had complied with
the standard of care regarding her inspection technique,
he further testified that his opinion as to that issue was
irrelevant because he also opined that Girard correctly
had diagnosed and repaired a third degree extension.
In other words, whether a digital rectal exam occurred
before or after the repair mattered only if there was a
fourth degree episiotomy extension because this exam
was not required to diagnose and repair a third degree
episiotomy extension. Nevertheless, Ling conceded
that, if the plaintiff had sustained a fourth degree episi-
otomy extension, Girard would have breached the stan-
dard of care by diagnosing and repairing it as a third
degree episiotomy extension, thereby not repairing the
torn rectal mucosa.5
As to causation, the defendants offered the testimony
of Flynn, who opined that the plaintiff’s rectovaginal
fistula was not caused by an unrepaired fourth degree
episiotomy extension but, rather, by an infection. More
specifically, Flynn explained that a fourth degree exten-
sion and a rectovaginal fistula are separate and distinct
injuries. A fourth degree extension is an ‘‘acute event’’
where there has been a tear through the rectum,
whereas a rectovaginal fistula is a ‘‘chronic condition’’
of an opening that connects the lumen of the rectum
and the lumen of the vagina, usually brought about by
infection. Even without a fourth degree extension, a
rectovaginal fistula may result after a properly repaired
third degree extension because the tissue has been
stretched and compromised.
Flynn opined that this is what occurred in the present
case: ‘‘The most likely reason she developed a fistula,
she got an infection in the perineum and the episiotomy
repair, a small infection. . . . That drained through the
posterior fourchette, which is what [was seen at her
first follow-up appointment]. As soon as that abscess
drained . . . the infection’s not gone, but that little
pocket of pus is gone, it closed up. That’s why on subse-
quent examinations it [was not discovered by any other
physicians]. But the problem is, you still have that bacte-
ria, you still have that pocket. . . . That infection
hasn’t resolved, and as that part closes off on the peri-
neum, now it’s tracking toward the rectum where you’ve
got an area of weakened mucosa . . . where an infec-
tion can tract and it tract[s] right down to the anus
where it opens up into the anus to create the fistula
tract.’’ He also opined that the anal sphincter separation
was not a result of a fourth degree episiotomy extension
but, rather, occurred because the anal sphincter is a
muscle that is difficult to repair as the muscle causes
the sutures to stretch and fail over time.
Flynn further opined that it was very unlikely that
an undiagnosed fourth degree extension would have
caused the plaintiff’s rectovaginal fistula. First, the fis-
tula did not occur in the area of the episiotomy repair
but, rather, in the posterior fourchette. Second, if there
had been a fourth degree laceration, it would have been
difficult not to diagnose the rectovaginal fistula by
visual inspection once the sphincter was separated,
splaying the vagina open. Third, because the hole in
the rectal mucosa was so small, if it had been present
right after the delivery, it would have healed on its
own once the other layers of the laceration had been
repaired. Fourth, due to the small size of the hole in
the rectal mucosa, only liquid stool, but not solid stool,
would have been able to pass through it—contrary to
the plaintiffs’ allegations. If liquid stool had been pass-
ing through this hole since the day of delivery, the
bacteria would have permeated the entire repair, and
the repair would have opened up completely within two
to five days. Additionally, the hole would have grown
in size over time. Instead, the episiotomy repair was
found to be intact.
During closing argument, neither party referred to
the acceptable alternatives doctrine, despite the fact
that the defendants had requested an acceptable alter-
natives charge. Rather, both parties argued that there
was only one proper method of conducting the digital
rectal exam—the plaintiffs argued that it had to occur
prior to the repair, and the defendants argued that it
had to occur after the repair. Moreover, although both
parties discussed Girard’s inspection technique, both
argued that the crux of the case came down to whether
there was a third degree or a fourth degree episiotomy
extension. The plaintiffs’ counsel described the case as
follows: ‘‘So, the issue in this case is, was there a fourth
degree laceration, right? That’s the whole issue.
Because if it’s there, we know she missed it. . . . Third
degree is the defendants’ case. . . . Fourth degree is
the plaintiffs’ case.’’ Similarly, the defendants’ counsel
summarized the case as ‘‘revolv[ing] around [whether
there was] a third degree laceration that was properly
repaired or a fourth degree laceration . . . .’’
The trial court then instructed the jury that the plain-
tiffs had alleged that Girard breached the standard of
care by failing to identify a fourth degree extension
of the median episiotomy, and by failing to properly
examine and to adequately repair a fourth degree exten-
sion. The trial court also charged the jury on the accept-
able alternatives doctrine.6
After being instructed, the jury sought clarification
as to whether it could ‘‘use the total testimony of all
witnesses to ascertain the plaintiffs’ definition of [the]
standard of care or only Dr. Young’s testimony . . . .’’
The trial court responded by instructing the jury that
it was ‘‘permitted to look at all of the evidence, including
testimony, to determine the standard of care, and it is
your obligation to determine the standard of care.’’ The
trial court then reread the standard charge on medical
malpractice and the charge on reasonable alternatives.
The plaintiffs’ counsel again objected to the inclusion
of the reasonable alternatives charge.
B
‘‘The standard of review for claims of instructional
impropriety is well established. [I]ndividual jury
instructions should not be judged in artificial isolation
. . . . The pertinent test is whether the charge, read
in its entirety, fairly presents the case to the jury in
such a way that injustice is not done to either party
under the established rules of law. . . . Thus, [t]he
whole charge must be considered from the standpoint
of its effect on the [jurors] in guiding them to the proper
verdict . . . and not critically dissected in a micro-
scopic search for possible error.’’ (Internal quotation
marks omitted.) State v. Flores, 301 Conn. 77, 93, 17
A.3d 1025 (2011).
It is well established that it is error to instruct the
jury on a doctrine or issue not supported by the evi-
dence offered at trial. See, e.g., Stokes v. Norwich Taxi,
LLC, 289 Conn. 465, 484–85, 958 A.2d 1195 (2008); Ver-
tex, Inc. v. Waterbury, 278 Conn. 557, 575 and n.13, 898
A.2d 178 (2006); Mack v. Perzanowski, 172 Conn. 310,
312–13, 374 A.2d 236 (1977). ‘‘Jury instructions should
be confined to matters in issue by virtue of the pleadings
and evidence in the case.’’ Mack v. Perzanowski, supra,
313. ‘‘[W]e review the evidence presented at trial in the
light most favorable to supporting the proposed charge.
. . . If . . . the evidence would not reasonably sup-
port a finding of the particular issue, the trial court has
a duty not to submit it to the jury.’’ (Internal quotation
marks omitted.) Stokes v. Norwich Taxi, LLC, supra,
484–85.
This court addressed the propriety of an acceptable
alternatives instruction in Wasfi v. Chaddha, 218 Conn.
200, 588 A.2d 204 (1991). In Wasfi, a medical malprac-
tice case, the central issue was whether a computerized
axial tomography (CAT) scan should have been ordered
before or after attempting to treat the plaintiff with
carbogen inhalation therapy. Id., 202–203. ‘‘At the trial,
experts on both sides testified concerning, inter alia,
the propriety of [the defendant physician’s] prescription
of carbogen [inhalation] therapy prior to ordering a
CAT scan. . . . [The physician’s] counsel elicited
expert testimony to the effect that the timing of the
CAT scan—before . . . or after carbogen [inhalation]
therapy—was a matter of professional opinion as to
which physicians differed.’’ Id., 203. On the basis of this
testimony, this court held that the trial court properly
instructed the jury on the acceptable alternatives doc-
trine, which we described as ‘‘the settled principle that
where the treatment or procedure is one of choice
among competent physicians, a physician cannot be
held guilty of malpractice in selecting the one which,
according to his best judgment, is best suited to the
patient’s needs.’’ (Internal quotation marks omitted.)
Id., 208.
Unlike the present case, Wasfi did not involve two
experts with dueling opinions regarding the proper pro-
cedure, with neither expert agreeing that the alternative
procedure was acceptable in the medical community.
This court in Wasfi, therefore, did not address whether
the acceptable alternatives charge could be supported
by experts with differing opinions. Rather, in Wasfi,
an expert specifically testified that both procedures—
ordering the CAT scan before or after the carbogen
inhalation therapy—were acceptable in the medical
community. Id., 210–11.
Since Wasfi, this court has not addressed this issue.
We find instructive, however, this court’s decisions
regarding the schools of thought doctrine. Although that
doctrine is separate and distinct from the acceptable
alternatives doctrine, it is similar in that both doctrines
recognize that there may be more than one acceptable
approach to treating a patient. Under this doctrine, ‘‘the
law will not judge between different medical schools
of thought so long as a physician acts according to the
standards within that school. . . . [This charge is
proper only if there is evidence that the practitioner]
adhered to a recognized school of good standing, which
has established rules and principles of practice for the
guidance of all its members, as respects diagnosis and
remedies, which each member is supposed to observe
in any given case.’’ (Citation omitted; internal quotation
marks omitted.) Id., 207–208.
In determining whether there is sufficient evidence
to support a schools of thought instruction, this court
has held that ‘‘a conflict in the evidence of the experts,
as is to be expected in [medical malpractice] cases,’’ is
not sufficient to support the charge. Geraty v. Kauf-
man, 115 Conn. 563, 571, 162 A. 33 (1932); see also
Katsetos v. Nolan, 170 Conn. 637, 653, 368 A.2d 172
(1976) (schools of thought instruction is proper when
there is evidence of more than one school of thought
recognized in medical community and defendant fol-
lowed different school of thought than plaintiff’s
expert). Rather, there must be testimony that different
schools of thought exist and what each school of
thought requires regarding procedure and treatment.
Geraty v. Kaufman, supra, 571; see also Savoie v.
Daoud, 101 Conn. App. 27, 38–39, 919 A.2d 1080 (2007)
(proper to instruct on schools of thought doctrine when
expert testified about existence of two schools of
thought).
It is the nature of medical malpractice cases that there
often will be conflicting expert testimony regarding the
standard of care. Wasfi makes clear that, similar to the
schools of thought doctrine, the acceptable alternatives
doctrine does not apply in every medical malpractice
case but, rather, applies only when there is evidence
of more than one acceptable method of inspection, diag-
nosis, or treatment. See Wasfi v. Chaddha, supra, 218
Conn. 211 (‘‘the defendant physician who claims that he
employed one of several alternative methods accepted
within his profession has no less a task than any defen-
dant physician: to offer credible expert evidence that
his conduct was accepted within the profession, and
to persuade the jury to believe that evidence’’ (empha-
sis omitted)).
Consequently, as with the schools of thought doc-
trine, competing expert testimony by itself is not suffi-
cient to support the acceptable alternatives charge. For
example, if expert A testifies that the standard of care
requires diagnosis to be made using the X method, and
expert B testifies that the standard of care requires
diagnosis to be made using the Y method, the jury must
decide between the two alternatives, with only one
option satisfying the standard of care. There would be
no evidence that both methods were acceptable alterna-
tives because both experts testified that only one
method would satisfy the standard of care. Rather, to
justify the charge, a qualified expert must testify that
there is more than one acceptable method of inspection,
treatment, or diagnosis.
The evidence in the present case played out like the
hypothetical just described: no expert testimony estab-
lished that conducting the digital rectal exam either
before the episiotomy repair or after the episiotomy
repair was an acceptable method of diagnosing the level
of degree of extension. Rather, the plaintiff’s expert,
Young, testified that the only acceptable method was to
conduct this examination prior to the repair. In contrast,
one of the defendants’ experts, Ling, testified that this
examination should be performed after the repair, to
prevent contamination and infection. Additionally,
Girard herself never testified that she made a choice
regarding when to conduct the digital rectal exam but,
rather, testified that she was trained to conduct this
exam only after the episiotomy repair.
The defendants respond that there was evidence that
both methods were acceptable alternatives because
Ling never testified that a prerepair examination was
a deviation from the standard of care; he merely testified
that a prerepair examination was not required. The
defendants focus on Ling’s testimony that a prerepair
digital rectal examination was ‘‘going beyond what the
standard of care would require . . . .’’ The defendants
take Ling’s statement out of context, however. Ling did
not testify that a prerepair examination went beyond
the standard of care in that it satisfied the standard of
care by doing more than the standard of care required
and, thereby, was an acceptable alternative to a postre-
pair examination. Rather, Ling testified that the stan-
dard of care does not require a prerepair examination
because it ‘‘is actually frowned upon’’ and ‘‘discour-
age[d]’’ due to the increased likelihood of contamina-
tion and infection. Ling further testified that, because
a prerepair examination can even create an opening in
the rectum, ‘‘we don’t encourage doing it unless it’s
absolutely necessary.’’ Ling disagreed with Young that
the standard of care required a prerepair examination,
explaining that ‘‘[t]hat’s going beyond what the stand-
ard of care would require, and it brings in the additional
risks [of infection and creating an opening] by exam-
ining [the plaintiff] before the repair is done . . . .’’
Ling never opined that a prerepair examination was
an acceptable alternative to a postrepair examination
approved by the medical community. Rather, Ling tes-
tified that prerepair examination was a disapproved
method of diagnosis unless ‘‘absolutely necessary.’’
Additionally, the defendants rely on Young’s testi-
mony to support the acceptable alternatives charge.
Specifically, they point to Young’s testimony that,
although she opined that the standard of care required a
prerepair examination, a postrepair examination could
identify a fourth degree episiotomy extension. Again,
the defendants take this testimony out of context. On
cross-examination, Young testified that, in a previous
deposition, she had testified that, after a repair is per-
formed, a digital rectal exam can establish the existence
of a fourth degree extension. Young clarified at trial
that a tear of the rectum would be noticeable only
during a digital rectal examination postrepair if the
repair had been done improperly so that the three layers
above the rectal mucosa remained torn, allowing the
physician to see from the vagina through the tear to
the rectal mucosa. In essence, Young’s testimony was
that a postrepair digital rectal exam was an acceptable
alternative only if the physician was negligent in per-
forming the repair. Accordingly, this record did not
support an acceptable alternatives charge.
Moreover, neither party at trial argued that the expert
testimony established that Girard chose between two
acceptable alternatives in performing the digital rectal
examination postrepair. Both parties argued during
summation that there was only one proper method of
examination to properly diagnose the degree of the
episiotomy extension—the plaintiffs’ counsel argued
that the exam had to occur prerepair, whereas the
defendants’ counsel argued that the exam had to occur
postrepair. The defendants’ counsel even went so far
as to argue that she ‘‘couldn’t believe [that] . . . Young
would even suggest that [a prerepair examination] was
a good idea, much less the standard of care.’’ Similarly,
the plaintiffs’ counsel noted that there was ‘‘no agree-
ment on the alternatives. . . . Young was very clear
[that] the examination has to be done before you do
the repair; [Ling] was very clear [that] you do the exami-
nation after the repair. There is no agreement on that.’’
Although closing argument is not evidence itself, it is
noteworthy that, at trial, not even the parties thought
the evidence established that the competing inspection
methods were acceptable alternatives.
In light of the evidence presented at trial, the trial
court improperly instructed the jury on the acceptable
alternatives charge.
C
The plaintiffs contend that this instructional error
was harmful because merely injecting an inapplicable
doctrine into the case creates a ‘‘substantial’’ likelihood
of prejudice. More specifically, they argue that the
charge ‘‘ ‘exculpate[d]’ ’’ the defendants and interfered
with the jury’s assessment of credibility by suggesting
that both methods of inspection were reasonable as
long as Girard used her ‘‘best judgment.’’ The plaintiffs
argue that the harm of this charge is evident from the
jury’s request for additional guidance regarding the
standard of care, the trial court’s repetition of the
charge in response to the jury’s clarifying questions,
and the fact that this charge was the last charge the
jury heard.7
The defendants respond that the improper charge
was harmless because the dispositive issue at trial was
not whether Girard breached the standard of care by
performing the digital rectal examination after the episi-
otomy repair but, rather, whether a fourth degree exten-
sion of the episiotomy existed. To establish liability,8
the plaintiffs had to prove that Girard failed to identify
a fourth degree episiotomy extension and failed to prop-
erly examine and repair that fourth degree extension.
The defendants contend that, because the jury found
that Girard did not breach the standard of care, it neces-
sarily found that no fourth degree extension existed,
and, thus, the acceptable alternatives charge did not
taint the verdict because whether Girard performed the
proper exam mattered only if there was a fourth degree
extension. The defendants contend that the instruction
did not interfere with the jury’s credibility determina-
tion or improperly exculpate Girard. We agree with
the defendants.
‘‘[N]ot every error is harmful. . . . [B]efore a party
is entitled to a new trial . . . he or she has the burden
of demonstrating that the error was harmful. . . . An
instructional impropriety is harmful if it is likely that
it affected the verdict. . . . [W]e consider not only the
nature of the error, including its natural and probable
effect on a party’s ability to place his full case before
the jury, but the likelihood of actual prejudice as
reflected in the individual trial record, taking into
account (1) the state of the evidence, (2) the effect of
other instructions, (3) the effect of counsel’s arguments,
and (4) any indications by the jury itself that it was
misled.’’ (Internal quotation marks omitted.) Allison v.
Manetta, 284 Conn. 389, 400, 933 A.2d 1197 (2007); see
also Galligan v. Blais, 170 Conn. 73, 78, 364 A.2d 164
(1976) (‘‘for an error in the charge to be a ground for
reversal, it must have been both material and prejudi-
cial’’). ‘‘A charge must be read in its entirety and is to
be considered from the standpoint of its effect on the
jury in guiding [it] to a correct verdict.’’ (Internal quota-
tion marks omitted.) Dinda v. Sirois, 166 Conn. 68, 74,
347 A.2d 75 (1974).
The inclusion of an inapplicable doctrine may be
harmful if it confuses and misleads the jury, which may
be evidenced by the jury’s having requested additional
guidance from the court on the doctrine; see, e.g., State
v. Torrence, 196 Conn. 430, 438, 493 A.2d 865 (1985);
Conlon v. G. Fox & Co., 165 Conn. 106, 113, 328 A.2d
708 (1973); by the inapplicable charge being the last
charge that a jury hears; State v. Torrence, supra,
437–38; Velardi v. Selwitz, 165 Conn. 635, 640–41, 345
A.2d 527 (1974); Laffin v. Apalucci, 128 Conn. 654, 658,
25 A.2d 60 (1942); or by repetition of the improper
charge. See State v. Flowers, 278 Conn. 533, 542–43,
898 A.2d 789 (2006) (twice repeated improper jury
instruction required reversal of judgment of convic-
tion); State v. Owens, 39 Conn. App. 45, 55, 663 A.2d
1108 (twice repeated improper jury instruction required
reversal in part of judgment of conviction), cert. denied,
235 Conn. 927, 667 A.2d 554 (1995).
Despite an instructional error, if the error did not
affect the jury’s verdict, courts of this state have found
the error to be harmless. See, e.g., Burke v. Mesniaeff,
334 Conn. 100, 121–22, 220 A.3d 777 (2019) (holding
that improper instruction was harmless when it did not
taint jury’s verdict); State v. Acklin, 9 Conn. App. 656,
666, 521 A.2d 165 (1987) (holding that instructional error
was not misleading and, thus, not harmful when error
did not affect principal issue in case); see also State v.
Torrence, supra, 196 Conn. 438 (‘‘[a] faulty definition
of cognitive insanity cannot prejudice a defendant who
claims volitional insanity’’); Caron v. Adams, 33 Conn.
App. 673, 685, 638 A.2d 1073 (1994) (despite instruc-
tional error, ‘‘[a] verdict should not be set aside where
the jury reasonably could have based its verdict on the
evidence’’). Cases in which the inclusion of an inapplica-
ble doctrine have been held harmful have involved the
submission of an issue or doctrine that affected the
jury’s determination of liability. See Faulkner v. Reid,
176 Conn. 280, 281, 407 A.2d 958 (1978) (instructing on
inapplicable special defense that affected determina-
tion of liability); Miller v. Porter, 156 Conn. 466, 470,
242 A.2d 744 (1968) (same).
In the present case, all the experts agreed that, if
there had been a fourth degree extension of the episiot-
omy, the standard of care would require Girard to diag-
nose it and to repair it as a fourth degree extension
regardless of whether the digital rectal exam was per-
formed before or after the episiotomy repair. Addition-
ally, Young conceded that, if there was only a third
degree extension, the repair was properly done and
Girard did not breach the standard of care. Thus, regard-
less of whether the jury found either or both methods
of inspection acceptable, there would be a breach of
the standard of care only if the plaintiff had sustained
a fourth degree episiotomy extension and Girard had
failed to properly repair it. In other words, even if a
prerepair exam was required for a fourth degree exten-
sion, if there was only a third degree extension, there
would be no breach. If there was a fourth degree exten-
sion, regardless of whether a digital rectal exam was
required before or after the repair, there would be a
breach of the standard of care because the fourth degree
extension was not diagnosed and repaired. The timing
of the exam was relevant to the issue of breach only
if the jury found there was a fourth degree episiot-
omy extension.
This is made clear by the court’s recitation of the
plaintiffs’ allegations in its jury instruction, to which
the plaintiffs did not take exception. See footnote 8 of
this opinion. The trial court instructed that the plaintiffs
had alleged that Girard breached the standard of care
by failing ‘‘to identify a fourth degree extension of the
median episiotomy’’ and by failing ‘‘to properly examine
and adequately repair a fourth degree extension of the
episiotomy.’’ The allegations were premised on the exis-
tence of a fourth degree extension. Only if there had
been a fourth degree extension would Girard have failed
to properly inspect, diagnose, and repair it. In the
absence of a fourth degree extension, there was no
breach of the standard of care.
The jury interrogatories establish that the jury found
that the plaintiffs had established the standard of care
but that there was no breach of that standard of care.
This necessarily means that the jury found that the
plaintiff sustained a third degree, not a fourth degree,
episiotomy extension. As explained, applying the plain-
tiffs’ alleged standard of care, there would be a breach
in the present case only if there had been a fourth
degree extension, and there would be no breach only
if there had been a third degree extension. Accordingly,
whether Girard properly conducted the digital rectal
exam did not affect the jury’s verdict. As a result, the
inapplicable acceptable alternatives charge, which was
premised on the proper inspection technique, did not
taint the jury’s verdict. Because the jury’s finding cen-
tered on whether there was a third or fourth degree
episiotomy extension, the inclusion of this charge,
which had no bearing on the degree of the extension,
would not have confused or misled the jury and, there-
fore, was harmless. See State v. Torrence, supra, 196
Conn. 438 (holding that instructional error was not mis-
leading, and thus not harmful, when error did not affect
verdict, which was premised on different issue); State
v. Acklin, supra, 9 Conn. App. 666 (same).
The out-of-state cases on which the plaintiffs rely in
support of their argument that an inapplicable accept-
able alternatives charge necessarily confuses and mis-
leads the jury are distinguishable. In those cases, the
erroneous acceptable alternatives charge was deemed
harmful on the ground that it was reasonably probable
that it affected the jury’s verdict because the primary
issue in each case was the propriety of the defendant
physician’s decision to use a certain inspection, diagno-
sis, or treatment method. See Hirahara v. Tanaka, 87
Haw. 460, 464–65, 959 P.2d 830 (1998) (improper word-
ing of acceptable alternatives charge was harmful
where charge was central to issue of liability); Rogers
v. Meridian Park Hospital, 307 Or. 612, 619–20, 772
P.2d 929 (1989) (same); Yates v. University of West
Virginia Board of Trustees, 209 W. Va. 487, 496, 549
S.E.2d 681 (2001) (‘‘[b]ecause the primary issue . . .
concerned the propriety of [the defendants’] decision
to use interventional radiology rather than immediate
surgery as the preferred method of treating [the plaintiff
patient’s] blockage, we find that there is a reasonable
probability that the jury’s verdict was influenced by the
improper instruction’’); see also Leazer v. Kiefer, 821
P.2d 957, 962 (Idaho 1991) (erroneous charge ‘‘mis-
guided the jury in determining negligence’’).
The plaintiffs respond that harm is evident in the
present case because the improper charge was repeated
and it was the last charge presented to the jury. We have
considered these factors in determining the prejudice
of an inapplicable charge and have found them persua-
sive in cases in which the inapplicable charge tainted
the jury’s verdict and, thus, served to confuse and mis-
lead the jury. See Velardi v. Selwitz, supra, 165 Conn.
639 (instructional error was harmful when it involved
jury’s determination of liability); Conlon v. G. Fox &
Co., supra, 165 Conn. 113 (‘‘[the inapplicable charge]
clearly was involved in [the jury’s] deliberations’’). As
discussed, the acceptable alternatives charge did not
taint the verdict in the present case because it did not
affect the basis of the jury’s verdict—the degree of
the episiotomy extension. See, e.g., Burke v. Mesniaeff,
supra, 334 Conn. 121–22 (holding that improper instruc-
tion was harmless when it did not taint jury’s verdict).
Additionally, although the trial court repeated the
acceptable alternatives charge in response to the jury’s
request for clarification, the court first reread the stan-
dard charge on medical malpractice, which was based
on the model medical malpractice jury instructions on
the Judicial Branch website. The court then reread the
acceptable alternatives charge. The court continued its
supplemental charge by reminding the jury that ‘‘the
plaintiffs have the burden of proving by a fair prepon-
derance of the evidence that [Girard’s] conduct repre-
sented a breach of the standard of care. Under our law,
the plaintiffs must prove this by expert testimony. More
specifically, they must establish through expert testi-
mony both what the standard of care is and their allega-
tion that [Girard’s] conduct represented a breach of
that standard. . . . Specifically . . . the plaintiffs
have alleged that [Girard] . . . [breached the standard
of care] in that she failed to identify a fourth degree
extension of the median episiotomy and failed to prop-
erly examine and adequately repair a fourth degree
extension of the episiotomy.’’ Although the trial court
repeated the acceptable alternatives charge, the court
put it into context by reemphasizing that the plaintiffs’
allegations were premised on a fourth degree extension,
which must exist for the inspection technique issue to
be material, thus diminishing any harm caused by the
repetition of the inapplicable charge.9
The plaintiffs further argue that harm is evidenced by
the jury’s having sought clarification on the inapplicable
charge. Although the jury sought clarification on the
instruction, it did not seek clarification on the accept-
able alternatives charge. Rather, the jury sought clarifi-
cation on what evidence it could consider in determin-
ing whether the plaintiffs satisfied their burden of
establishing the standard of care. The jury also sought
clarification on whether the plaintiffs were asserting
that a digital rectal exam had to be conducted before
the repair to comply with the standard of care.
The plaintiffs argue that, although these questions
were not specifically about the acceptable alternatives
charge, they show that the jury was focused on the
method of examination—the subject of the acceptable
alternatives charge. We are not persuaded. These ques-
tions show that the jury was focused on the standard
of care. As discussed, the standard of care involved the
inspection technique only if the jury first found that a
fourth degree extension had existed, which it did not
find on the basis of its finding that there was no breach
of the standard of care. Thus, the jury’s focus on the
standard of care did not necessarily suggest a focus on
the acceptable alternatives charge.
Finally, the plaintiffs argue that the acceptable alter-
natives charge was harmful because it exculpated
Girard and improperly interfered with the jury’s deter-
mination of the experts’ credibility by suggesting that
both inspection methods were reasonable as long as
Girard used her ‘‘best judgment.’’ We disagree.
It is true that, if a jury finds that expert testimony
establishes that there were acceptable alternative meth-
ods for conducting an inspection and that a defendant
reasonably chooses from among those options, the
defendant avoids liability. See Wasfi v. Chaddha, supra,
218 Conn. 209 (‘‘physicians may choose between alter-
native acceptable methods without incurring liability
solely because that choice may have led to an unfortu-
nate result’’). This does not mean, however, that charg-
ing the jury on the acceptable alternatives doctrine
exculpates the defendant. As this court in Wasfi
explained, the doctrine does not ‘‘[shield] a defendant
physician from liability every time experts differ con-
cerning his choice of techniques.’’ Id., 211. Rather, the
jury still must determine whether both of the competing
methods were acceptable in the medical community
and whether the defendant’s use of a particular method
breached the standard of care.
Despite its flaws, the acceptable alternatives charge
did not require the jury to exculpate Girard. Rather, the
charge informed the jury that it must decide whether
there was more than one recognized method of inspec-
tion and, if there was, then determine whether the
‘‘method [used] was consistent with the skill, care, and
diligence ordinarily had and exercised by other special-
ists in her field in like cases at the time that she provided
treatment.’’ Similarly, the charge did not interfere with
the jury’s determination of credibility by suggesting that
both methods of inspection were reasonable. The
charge properly left the jury to determine whether the
expert testimony established that both methods of
inspection were accepted in the medical community.
Moreover, the jury did not need to reach this issue
unless it found that a fourth degree episiotomy exten-
sion had existed. It did not.
Accordingly, on the basis of this record, the trial
court’s improper inclusion of the acceptable alterna-
tives charge was harmless.10
II
The plaintiffs’ final claim of instructional error is that
the trial court’s supplemental charge to the jury improp-
erly limited their allegations of breach of the standard
of care to improper inspection, rather than more
broadly to improper inspection, diagnosis, and repair
of a fourth degree episiotomy extension.11 According
to the plaintiffs, even if Girard properly conducted the
inspection, she still could have breached the standard
of care by failing to diagnose and repair a fourth degree
episiotomy extension. The plaintiffs argue that this
improper supplemental instruction was harmful
because, by narrowing the allegations of breach to the
inspection technique, the trial court focused the jury’s
attention on the improper acceptable alternatives
charge, which was based on the inspection technique.
The defendants respond that the trial court’s supple-
mental instruction was proper because, although the
plaintiffs alleged that Girard improperly inspected, diag-
nosed, and repaired the episiotomy extension, the
improper diagnosis and repair were premised on the
improper inspection. In other words, the only evidence
of breach of the standard of care was that Girard
improperly conducted the digital rectal examination
postrepair, causing her not to be able to visualize the
tear in the rectal mucosa, and thereby causing her not
to be able to diagnose and repair that tear. We agree
with the defendants.
The following additional procedural history is rele-
vant to this claim. After being instructed, the jury sought
clarification on whether ‘‘the plaintiff[s] assert that an
internal rectal exam must be completed before repair
as a required component of the standard of care.’’ The
trial court proposed to respond that ‘‘[t]he plaintiffs’
expert, [Young], testified that an internal rectal exam
must be performed before a repair in order to comply
with the standard of care.’’ The plaintiffs’ counsel
objected, arguing that the jury did not ask what the
expert had testified to but what the plaintiffs were
asserting, which was broader—that the standard of care
required Girard to properly inspect, diagnose and repair
the fourth degree extension. The plaintiffs’ counsel rec-
ognized the specifics of Young’s testimony but argued
that the trial court’s response was too narrow. The trial
court disagreed and gave the supplemental instruction
that it had proposed.
‘‘In evaluating a claim that a supplemental charge is
erroneous we must examine both the main and supple-
mental charge as a whole to determine whether the
jury could reasonably have been misled. . . . We must
recognize, however, that [a] supplemental charge . . .
enjoy[s] special prominence in the minds of the jurors
because it is fresher in their minds when they resume
deliberation.’’ (Citation omitted; internal quotation
marks omitted.) State v. Williams, 199 Conn. 30, 41,
505 A.2d 699 (1986). Although ‘‘additional instructions
given in immediate response to a request are more
informal and expressed with less exactness than are
studiously prepared formal charges’’; (internal quota-
tion marks omitted) id., 43; ‘‘[t]he test to be applied to
the charge is whether it fairly presents the case to the
jury.’’ State v. Edwards, 163 Conn. 527, 537, 316 A.2d
387 (1972).
The trial court’s response to the jury’s question
regarding the plaintiffs’ allegations was consistent with
the evidence presented at trial and how the plaintiffs’
counsel had argued the plaintiffs’ case to the jury. See
Blatchley v. Mintz, 81 Conn. App. 782, 787–88, 841 A.2d
1203 (‘‘court properly tailored its instructions to reflect
the issues actually before the jury’’), cert. denied, 270
Conn. 901, 853 A.2d 519 (2004); see also Stokes v. Nor-
wich Taxi, LLC, supra, 289 Conn. 476, 485 (charge
must be supported by evidence and adapted to issues in
case). The evidence offered in support of the plaintiffs’
theory that Girard breached the standard of care came
from Young, who testified that Girard improperly failed
to conduct the digital rectal exam before the episiotomy
repair, which caused her to misdiagnose and improperly
repair the fourth degree extension as a third degree
extension because a fourth degree extension can be
identified only before the repair. The plaintiffs’ allega-
tions that Girard breached the standard of care by fail-
ing to diagnose and repair a fourth degree extension
were premised on a failure to conduct the digital rectal
exam prior to the repair. The plaintiffs’ counsel argued
in summation that the plaintiff sustained a fourth degree
episiotomy extension and that, because there was a
fourth degree episiotomy extension, the standard of
care required a prerepair digital rectal exam, without
which Girard could not properly diagnose and repair the
degree of the extension.12 Under the plaintiffs’ theory
of the case, the jury first had to find that a fourth degree
episiotomy existed and then had to find that Girard
failed to properly diagnose and repair it, which was
caused by Girard’s failure to conduct a prerepair digital
rectal exam. In light of this and the more informal nature
of supplemental instructions, it was proper for the trial
court to instruct the jury that the plaintiffs were
asserting that a prerepair digital rectal exam was a
component of the standard of care.
The crux of the plaintiffs’ argument appears to be
that, in light of the trial court’s improper charge on
the acceptable alternatives doctrine, its supplemental
charge was improper because, when looking at those
two portions of the jury instructions together, the jury
could have improperly found that, although there was
a fourth degree episiotomy extension, insofar as both
inspection methods were reasonable, there was no
breach of the standard of care, which was limited to
the inspection technique. We are not persuaded that
the supplemental instruction improperly limited the
allegations and had this effect.
The jury asked if a prerepair exam was a component
of the plaintiffs’ alleged standard of care. The trial court
responded in the affirmative. Nothing about this
response negates the plaintiffs’ allegation that, as a
result of breaching the standard of care by failing to
perform a prerepair inspection, Girard failed to diag-
nose and repair a fourth degree extension. Under the
plaintiffs’ theory of the case, assuming there was a
fourth degree episiotomy extension, a failure to perform
the prerepair exam was a necessary first component
in a breach of the standard of care.
Furthermore, this charge must be read in context
as part of the entire instruction. See, e.g., Stewart v.
Federated Dept. Stores, Inc., 234 Conn. 597, 606, 662
A.2d 753 (1995). In its original charge, the trial court
stated that the plaintiffs had alleged that Girard
breached the standard of care ‘‘in that she, [a], failed
to identify a fourth degree extension of the median
episiotomy or, [b], failed to properly examine and ade-
quately repair a fourth degree extension of the episiot-
omy.’’ After the supplemental charge at issue, the jury
requested clarification on what evidence it could con-
sider in determining if the plaintiffs established the
standard of care, in response to which the trial court
again stated the plaintiffs’ allegations regarding breach
of the standard of care as ‘‘[a failure] to identify a fourth
degree extension of the median episiotomy and [a fail-
ure] to properly examine and adequately repair a fourth
degree extension of the episiotomy.’’ This charge, which
was nearly identical to the language that the plaintiffs
sought to have the court include in the first supplemen-
tal charge, was the last charge the jury heard. See foot-
notes 9 and 11 of this opinion. Thus, to the extent that
the first supplemental charge did limit the plaintiffs’
allegations, the second supplemental charge cured any
error. See State v. Snook, 210 Conn. 244, 271, 555 A.2d
390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L.
Ed. 2d 603 (1989). When we examine the charge as a
whole, as we must, we conclude that it is clear that
the trial court instructed the jury that the plaintiffs’
allegations regarding breach of the standard of care
included insufficient inspection, diagnosis, and repair
of a fourth degree episiotomy extension. The jury
instructions as a whole would not have confused and
misled the jury into determining that, even if a fourth
degree episiotomy extension had existed, Girard did
not breach the standard of care.
Accordingly, we conclude that the trial court did not
improperly limit the plaintiffs’ allegations regarding
breach of the standard of care in responding to the
jury’s request for clarification of the jury instructions.
The judgment is affirmed.
In this opinion the other justices concurred.
1
Because Michael Kos’ loss of consortium claims are derivative of Laura
Kos’ medical malpractice claims, we refer to Laura Kos as the plaintiff, to
Michael Kos by his name, and to them collectively as the plaintiffs.
2
Lawrence + Memorial Hospital and Thameside OB/GYN Center, P.C.,
also were named as defendants, but the plaintiffs withdrew the action as
to those defendants prior to trial. We therefore refer in this opinion to Girard
and Physicians for Women’s Health, LLC, as the defendants.
3
A first degree episiotomy extension is a superficial laceration involving
the vaginal mucosa—the lining of the vagina—and the perineal body. A
second degree episiotomy extension is a deeper tear into the tissue, going
beyond the vaginal mucosa and perineal body into the bulbocavernosus
muscles, as well as extending into the perineal body—the area between the
anus and the vagina. A third degree episiotomy extension includes a second
degree extension and extends to the perineal muscles and anal sphincter
but does not include the rectal mucosa—the lining of the rectum. A fourth
degree episiotomy extension includes a third degree extension and extends
to the rectal mucosa.
4
The plaintiffs also contend that the acceptable alternatives charge was
improper because it included language regarding ‘‘schools of thought’’ and
‘‘best judgment.’’ The plaintiffs argue that the ‘‘schools of thought’’ wording
improperly conflates the acceptable alternatives doctrine with the schools
of thought doctrine, two separate and distinct doctrines. The plaintiffs also
argue that the ‘‘best judgment’’ wording improperly injects a subjective
standard into a medical malpractice action, excusing Girard from liability
and interfering with the jury’s credibility determination. The plaintiffs did
not object to the wording of the charge at the time of trial. Rather, they
took a general exception to the charge being given at all, arguing that
no evidence supported it and that it improperly interfered with the jury’s
credibility determination because this kind of charge suggested that both
methods of inspection were reasonable. At no time did the plaintiffs request
that the trial court modify the language of the charge in any way. Although
the plaintiffs mentioned the phrase, ‘‘schools of thought,’’ they did not do
so to object to the inclusion of this language in the charge but, in passing,
in summarizing the holding of Wasfi v. Chaddha, 218 Conn. 200, 588 A.2d
204 (1991).
An objection to the giving of a jury instruction does not preserve an
objection to the specific wording of the instruction. See State v. Coleman,
304 Conn. 161, 174, 37 A.3d 713 (2012); id., 173–74 (defendant failed to
preserve specific objection to wording of charge when he objected at trial
to charge on different ground); State v. Johnson, 288 Conn. 236, 287–88,
951 A.2d 1257 (2008) (same); State v. Melendez, 74 Conn. App. 215, 229, 811
A.2d 261 (2002) (‘‘although defense counsel objected to giving the jury an
instruction on consciousness of guilt, he did not object at any time to the
wording of the instruction as given and therefore failed to preserve that
issue for review’’), cert. denied, 262 Conn. 951, 817 A.2d 111 (2003).
Although we hold that the claim was not properly preserved, we note
that this court in Wasfi indicated that the phrase, ‘‘schools of thought,’’
should not be included as part of the acceptable alternatives charge; Wasfi
v. Chaddha, supra, 218 Conn. 208–209; see also id., 208 (noting ‘‘unfortunate
use’’ of schools of thought language); but nonetheless concluded that the
inclusion of this phrase in the acceptable alternatives charge, which was
otherwise substantively correct, did not constitute instructional error or
confuse the jury, which would not have been aware of the legal difference
between the two doctrines. Id., 209. We also rejected the argument that the
acceptable alternatives doctrine opened a ‘‘Pandora’s Box’’ by injecting a
subjective standard into the objective medical malpractice test. Id., 211.
Specifically, we disagreed that the doctrine would shield a defendant from
liability when experts have differing opinions or would take credibility
determinations away from the jury because the doctrine requires defendants
to offer expert evidence that acceptable alternatives exist and to persuade
the jury to credit this evidence. Id.
5
Flynn testified that, even if Girard had breached the standard of care
by diagnosing and repairing a fourth degree episiotomy extension as a third
degree extension, the plaintiff would not have necessarily sustained any
damages because such a small hole would have healed on its own.
6
The trial court instructed the jury as follows: ‘‘In this case, you have
heard testimony from different physicians as to different ways to inspect and
diagnose an episiotomy extension. Where there is more than one recognized
method of treatment and not one of them is exclusively and uniformly used
by all physicians in good standing, a health care provider is not negligent
in selecting one, which, according to his or her best judgment, is best suited
for the patient’s needs, even if it turns out to be a selection not favored by
another physician. Now, there may be more than one established system
of treatment. The law does not favor or give exclusive recognition to any
particular system of treatment over another. The law is that a physician is
not bound to use any particular method or medical school of thought in
treating a patient. When a physician of ordinary skill and learning recognizes
more than one method of treatment as proper, the physician may adopt
any such method without subjecting himself or herself to liability for an
unfortunate result, so long as such method was consistent with the skill,
care, and diligence ordinarily had and exercised by other specialists in her
field in like cases at the time that she provided the treatment. Thus, if there
was more than one established method of treatment recognized at the time,
the test is not whether the physician adopted a method someone else might
have adopted but, rather, whether the method adopted was one that was
in compliance with reasonable skill, care, and diligence required of the
particular school of thought embracing the method.’’
7
The plaintiffs further argue that the harm caused by the improper charge
was worsened by the improper wording of the charge, confusing the accept-
able alternatives doctrine with the schools of thought doctrine and injecting
a subjective ‘‘best judgment’’ standard into the objective medical malpractice
standard. As explained in footnote 4 of this opinion, the merits of these
claims are unpreserved. Nevertheless, we note that, in Wasfi, we held that the
inclusion of the phrase, ‘‘schools of thought,’’ in an acceptable alternatives
charge, although incorrect, does not confuse or mislead the jury. See footnote
4 of this opinion. The charge at issue in the present case is nearly identical
to the charge in Wasfi, and, as in that case, we fail to discern how the
inclusion of this phrase would create any additional confusion for the jury.
Moreover, to the extent that the plaintiffs contend that the ‘‘best judgment’’
language was harmful, we address that argument, but, to the extent that
the plaintiffs attempt to raise their unpreserved claim regarding whether
the inclusion of the ‘‘best judgment’’ language was improper, we decline to
review that issue.
8
In the operative fifth amended complaint, the plaintiffs allege that Girard
breached the standard of care by failing ‘‘to identify a [fourth] degree exten-
sion of the median episiotomy’’; failing ‘‘to perform a proper and adequate
episiotomy repair’’; and failing ‘‘to properly examine the episiotomy repair
after it was complete.’’ To conform the allegations to the evidence presented
at trial, the plaintiffs proposed to amend the complaint to allege that Girard
breached the standard of care by failing ‘‘to identify a [fourth] degree exten-
sion of the median episiotomy’’ and by failing ‘‘to properly examine and
adequately repair the [fourth] degree extension of the episiotomy.’’ The trial
court denied the plaintiffs’ request to amend the complaint, but the trial
court’s instruction regarding the plaintiffs’ allegations nevertheless tracked
how the plaintiffs had set forth those allegations in their proposed sixth
amended complaint.
9
Additionally, contrary to the plaintiffs’ contention, the acceptable alterna-
tives charge was not the last charge that the jury heard, but, rather, the last
charge was on the burden of proof and a summary of the plaintiffs’ allegations
centering on the disputed existence of a fourth degree extension. See State
v. Torrence, supra, 196 Conn. 437–38 (‘‘trial court’s concluding instruction
. . . refocused the jury’s attention on the key concept [at issue] . . . and,
in effect, acted as a curative instruction’’).
10
Alternatively, the plaintiffs ask this court to abolish the acceptable
alternatives doctrine because it is unnecessary in light of the standard jury
instruction regarding medical malpractice, and because it misleads the jury
and interferes with its credibility determination by suggesting that a physi-
cian is not liable if the physician’s methods were subjectively reasonable.
In light of this court’s stare decisis jurisprudence and our holding that the
acceptable alternatives charge in this case was harmless, we decline to
take this opportunity to abolish the acceptable alternatives doctrine. ‘‘The
doctrine [of stare decisis] requires a clear showing that an established rule
is incorrect and harmful before it is abandoned.’’ (Emphasis added; internal
quotation marks omitted.) Conway v. Wilton, 238 Conn. 653, 660–61, 680 A.2d
242 (1996). Moreover, because we conclude that the acceptable alternatives
doctrine was not applicable in this case, we determine that this is not the
appropriate case for deciding whether the doctrine should be abolished.
11
Specifically, after the plaintiffs’ counsel objected to the trial court’s
proposed supplemental instruction as being too narrow, counsel requested
that the trial court respond to the jury’s question that the plaintiffs’ allega-
tions were that Girard breached the standard of care by failing to ‘‘carefully
inspect and properly diagnose a fourth degree laceration.’’
12
The plaintiffs’ counsel argued: ‘‘So, step one is, was it a fourth degree
[laceration]? . . . It was clearly a fourth degree laceration. [Step two is,
was] it properly repaired? Well, no, it wasn’t because [Girard] diagnosed
what she thought and repaired what she thought was a third degree because
she didn’t properly examine the perineum for the laceration. So, that gets
you through the standard of care. Properly examine, properly diagnose,
properly repair. She didn’t see the fourth degree because she didn’t do the
examination, [so] she didn’t repair the fourth degree because she thought
it was a third degree.’’