Judges: House, Loiselle, MacDonald, Bogdanski, Longo
Filed Date: 6/24/1975
Status: Precedential
Modified Date: 10/19/2024
The plaintiffs, as executrices of the estate of Stella Basko, brought an action against the defendant, Bridgeport Hospital, claiming, in the first count, damages for the death of their decedent alleged to have been caused by the negligence of three employees of the defendant specifically named in the complaint; and, in the second count, damages for assault and battery alleged to have been committed on the plaintiffs’ decedent by the same three employees of the defendant. Upon the close of the plaintiffs’ case and without offering evidence, the defendant moved for a directed verdict. This motion was granted and the plaintiffs’ motion to set aside the defendant’s verdict returned
The correctness of the court’s ruling is tested on the basis of the evidence printed in the appendices to the briefs. Fleming v. Becker, 162 Conn. 563, 565, 295 A.2d 524; Smith v. Housing Authority, 144 Conn. 13, 14, 127 A.2d 45. The court’s action in directing the verdict for the defendant can be sustained only if the jury could not reasonably and legally have reached a conclusion other than in the defendant’s favor. Pinto v. Spigner, 163 Conn. 191, 192, 302 A.2d 266; Santor v. Balnis, 151 Conn. 434, 435, 199 A.2d 2. Directed verdicts are not favored and should be granted only when the jury could not reasonably and legally reach any other conclusion. Pinto v. Spigner, supra; Leary v. Johnson, 159 Conn. 101, 104, 267 A.2d 658.
In reviewing the evidence printed in the appendices to the briefs to test the correctness of the trial court’s ruling on a motion to set aside the verdict, we have generally adhered to the rule that such evidence “must be given the most favorable construction in support of the verdict of which it is reasonably capable.” Fleming v. Becker, supra, 565; Petrillo v. Bess, 149 Conn. 166, 167, 179 A.2d 600. However, where the issue framed by an appeal from a final judgment upon a ruling refusing to set aside a verdict raises, as here, the correctness of the trial court’s action in directing a verdict in the first place, we have diverted from that general rule of construction and have employed a standard for review of the printed evidence as enunciated in Pinto v. Spigner, supra, 193: “In reviewing the
During the trial the defendant stipulated that the three x-ray technicians named in the complaint were employees of the defendant acting in the course of their employment in pursuance of their duties in the x-ray room.
Dr. Robert F. Ragusa, the decedent’s attending physician, testified that the decedent was admitted for evaluation of rather vague complaints of back pain and abdominal distress and that he was not aware of any ulcer condition at the time she was admitted; that he ordered some studies, including a barium enema and x-rays of the intestine; that the “Gr.I. series” was not performed because the decedent during the barium enema had received an injury to her shoulder which required surgical treatment by Dr. John Moore, and this prevented the further tests from being made on the decedent; that because of the surgery to the shoulder, further studies of her abdominal pains were suspended and that then, after surgery, the decedent developed a cardiac problem; that he conducted no further tests because this would have required her to get up from her bed and be brought to the x-ray department, which he did not feel was wise at the time.
Dr. Ragusa further testified that the first time he learned of the ulcer condition was from the autopsy performed after the death of the decedent, which indicated that she had died from peritonitis secondary to a perforation or rupture of a duodenal ulcer; that he probably would have been able to diagnose the abdominal trouble of the decedent if he had been able to complete the tests he had ordered on her admission; that he would have been able to give her specific treatment and, with reason
The plaintiffs’ evidence completely failed to identify any specific person or persons involved in the dislocation of the decedent’s shoulder, let alone any specific act of negligence on the part of any person. The defendant had merely stipulated to the agency of the three technicians named in the complaint but did not admit or stipulate even as to their presence, or the presence of any one of them, in the x-ray room at the time the dislocation occurred.
Moreover, no evidence whatsoever was offered as to the standard of care that should have been employed by the attendants in the x-ray room or whether that standard was breached by those individuals. Such evidence as was offered by the plaintiffs did, however, make it clear that at all times mentioned in the complaint the decedent was under medical care and receiving medical treatment. “In the ordinary action for negligence the jury can apply, unaided by experts, the standard of care of the reasonably prudent person under the circumstances. This does not apply, however, to an action for malpractice. Since the members of the jury are laymen, they cannot be expected to know the requirements for proper medical treatment in the
As to the second count alleging an assault and battery, even assuming that the individuals present in the x-ray room had been identified as the technicians named in the complaint, no evidence was offered to suggest that their conduct fell within the definitions of an actionable assault or battery. We have defined an actionable assault to include the performance of an operation by a surgeon without the patient’s consent. Schmeltz v. Tracy, 119 Conn. 492, 495-96, 177 A. 520. Further, an actionable assault and battery may be one committed willfully or voluntarily, and therefore intentionally, or one done under circumstances showing a reckless disregard of consequences; it may also be one com
The plaintiffs claim that the issue of proximate cause should have been submitted to the jury. The evidence as detailed previously suggests an attenuated causation situation but one that might be viewed as presenting a conflict to be resolved by the trier of fact. However, in an unfortunate “cart-before-the-horse” process of reasoning, the plaintiffs have failed to perceive the fundamental principle that tortious conduct must first be proved by a preponderance of the evidence before the issue of proximate cause may be considered. That an injury may be causally connected to a defendant’s conduct will not afford a plaintiff the right to seek damages for that injury absent a finding that the defendant’s conduct was tortious. The plaintiffs, having failed in their proof of any tortious conduct by the defendant or its agents, as previously noted, were not entitled to have the issue of proximate cause submitted to the jury.
The plaintiffs have raised on appeal in their brief a number of theories for recovery which were not alleged in their complaint and, accordingly, they were not entitled to have these issues considered
There is no error.
In this opinion House, C. J., Loiselle and Longo, Js., concurred.
The attorney for the defendant hospital stipulated as follows in open court: “Before the jury comes in, if Tour Honor please, we are able to stipulate and agree in this ease that Susan Christianson, Valerie Attianese and Mary Olah were at all times mentioned in the complaint employees of the defendant, Bridgeport Hospital, and in pursuance of their duties, in the x-ray room they were acting in the course of their duties with the hospital.”