Cockayne v. Bristol Hospital, Inc.

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BRUCE COCKAYNE ET AL. v. THE BRISTOL
HOSPITAL INCORPORATED ET AL.
(AC 44241)
Prescott, Alexander and Bishop, Js.
Syllabus
The plaintiffs, B and his wife, sought to recover damages from the defendant
hospital for, inter alia, injuries B allegedly sustained while he was receiv-
ing treatment from the defendant’s employees. Over a three day period,
two of the defendant’s nurses, K and L, administered medication to B
rectally via enema a total of three times. On the day following the
final administration, a physician discovered that B’s rectum had been
perforated. As a result, B developed a necrotizing infection and sepsis,
his health deteriorated, and he required multiple medical procedures.
At trial, after the plaintiffs had rested, the defendant moved for a directed
verdict, claiming that the plaintiffs had failed to present an evidentiary
basis as to when the perforation occurred, which of the defendant’s
employees had breached the applicable standard of care, and whether
the tip of the enema was capable of causing the perforation. The trial
court reserved its decision on the motion and permitted the issues to
be submitted to the jury. The jury returned a verdict in favor of the
plaintiffs and the defendant filed motions for judgment notwithstanding
the verdict and to set aside the verdict. The trial court denied both
motions and the defendant appealed to this court. Held:
1. The trial court properly denied the defendant’s motion for judgment
notwithstanding the verdict: this court, determining that the issue was
subject to plenary review because the question of whether the evidence
was sufficient to withstand the motion was one of law, concluded that
the plaintiffs had met their burden of producing sufficient evidence for
the jury to find that the enema was physically capable of causing the
perforation, as an expert testified regarding the average length of the
anal canal and the length of the tip of the enema, stating that it could
reach into the rectum and that it was possible for the tip to go through
the rectum and cause the perforation suffered by B; moreover, the
defendant did not provide any authority for its assertion that the plaintiffs
needed to provide specific evidence regarding B’s actual anatomical
measurements, and the experts were not required to disprove all other
possible explanations for the injury but only needed to show that their
opinions were based on reasonable probabilities; furthermore, the use
of a differential diagnosis was proper and sufficient to establish the
plaintiffs’ theory of causation, namely, that the defendant’s employees
caused the perforation suffered by B, as the jury heard evidence that
there was no perforation of B’s rectum prior to his hospitalization, that
the most likely cause of the perforation was the insertion of a foreign
object, and that, although there were four possible causation events,
an expert witness used differential diagnosis to eliminate three of the
potential causes and opined that, to a reasonable degree of medical
probability, an enema administered during B’s hospitalization caused
the perforation, and this court and our Supreme Court have indicated
that a causal relationship between an injury and its later physical effects
may be established by a physician’s deduction through the process of
eliminating other causes.
2. The trial court properly denied the motion to set aside the verdict, as the
defendant could not prevail on its claim that the jury improperly was
permitted to consider a theory of negligence unsupported by the evi-
dence: the plaintiffs presented sufficient expert evidence for the jury
to find that L caused the perforation of B’s rectum, as L administered
an enema during the time frame in which the perforation likely occurred,
an expert physician testified that the perforation was caused by the
administration of an enema with excessive force and indicated that one
of the nurses had caused it, and a registered nurse, one of the plaintiffs’
experts, testified that K or L had used improper technique in administer-
ing the enemas and indicated that L had caused the perforation, although
she later clarified her statement to indicate that she could not determine
which individual nurse bore sole responsibility for causing the perfora-
tion.
Argued May 24, 2021—officially released February 8, 2022
Procedural History
Action to recover damages for medical malpractice,
and for other relief, brought to the Superior Court in
the judicial district of New Britain, where the matter
was tried to the jury before Morgan, J.; verdict for the
plaintiffs; thereafter, the court, Morgan, J., denied the
defendants’ motions for judgment notwithstanding the
verdict and to set aside the verdict and rendered judg-
ment in accordance with the verdict, from which the
defendants appealed to this court. Affirmed.
Tadhg Dooley, with whom were Jeffrey R. Babbin
and, on the brief, Michael G. Rigg, for the appellants
(defendants).
Jack G. Steigelfest, with whom were Thomas P. Cella
and, on the brief, Brian D. Danforth, for the appellees
(plaintiffs).
Opinion
ALEXANDER, J. The dispositive issue in this appeal
is whether the plaintiffs, Bruce Cockayne and Marion
Cockayne, presented sufficient evidence in support of
their claim of medical malpractice by employees of the
defendant The Bristol Hospital Incorporated.1 Follow-
ing the jury’s verdict in favor of the plaintiffs, the defen-
dant moved for judgment notwithstanding the verdict
and to set aside the verdict. The trial court denied these
motions and rendered judgment in accordance with the
jury’s verdict. On appeal, the defendant claims that the
court improperly denied (1) its motion for judgment
notwithstanding the verdict and (2) its motion to set
aside the verdict and order a new trial. We disagree
and, accordingly, affirm the judgment of the trial court.
The following allegations from the plaintiffs’ com-
plaint underlie this appeal. Count one of the complaint
alleged that Bruce Cockayne was admitted to the defen-
dant on February 11, 2014, and, during this admission,
he received treatments of a medication administered
rectally via enema. During one or more of these treat-
ments, his rectum was perforated. The plaintiffs alleged
that this perforation was proximately caused by the
carelessness and negligence of the defendant’s agents,
servants, or employees.2 Further, the plaintiffs claimed
that, due to this carelessness and negligence, Bruce
Cockayne had to undergo numerous surgeries, proce-
dures, diagnostic tests, therapies, and the administra-
tion of medications. These medical treatments caused
him to suffer extreme physical and mental pain and
suffering, to incur medical expenses and to have his
ability to enjoy life’s pleasures curtailed and diminished.
Count two of the complaint set forth a loss of consor-
tium claim on behalf of Marion Cockayne.3
Following the presentation of the evidence, the jury
reasonably could have found the following facts. In
January, 2014, Bruce Cockayne experienced symptoms
of diarrhea and vomiting. At that time, he was admitted
to the defendant for treatment consisting of bedrest,
medication, and a colonoscopy. At this time, his rectum
was described as ‘‘largely intact . . . .’’ Bruce Cock-
ayne was discharged from the defendant on February
3, 2014. He was prescribed Rowasa enemas to be admin-
istered at home.4 Marion Cockayne attempted to admin-
ister this type of enema to her husband but was unsuc-
cessful due to his irritation and pain. During the time
period of February 2 through 10, 2014, no foreign body
was inserted into Bruce Cockayne’s rectum.
On February 11, 2014, Bruce Cockayne was readmit-
ted to the defendant after fainting, likely due to contin-
ued diarrhea and the resulting loss of fluids. At approxi-
mately 9:45 p.m. on February 11, 2014, and approximately
8 p.m. on February 12, 2014, Jordan Kaine, a nurse
employed by the defendant, administered a Rowasa
enema to Bruce Cockayne in the course of her employ-
ment duties. At approximately 8 p.m. on February 13,
2014, Elaine Medina Lapaan, a nurse employed by the
defendant, administered a Rowasa enema to Bruce
Cockayne in the course of her employment duties.5
On the morning of February 14, 2014, Bruce Cockayne
suffered a ‘‘massive rectal bleed’’ and was transferred
to the intensive care unit. An embolization procedure
successfully stopped the bleeding. Following a CT scan,
Rainer Bagdasarian, a physician, operated on Bruce
Cockayne and performed, inter alia, an endoscopy. Dur-
ing this procedure, Bagdasarian determined that an
internal hemorrhoid located on the left lateral anal canal
caused the bleeding.6 Bagdasarian also discovered that,
just past the end of the anal canal and distinct from the
internal hemorrhoid, ‘‘there was a large, two centimeter,
older appearing perforation in the posterior right rec-
tum . . . .’’ Bagdasarian performed an ileostomy to
divert feces away from the perforation and to prevent
it from spilling into the perineum, the space outside
of the rectum.7 Despite this effort, Bruce Cockayne
developed a necrotizing infection and his health deterio-
rated precipitously due to sepsis. He required numerous
medical procedures at multiple facilities, including
Hartford Hospital and Gaylord Hospital.8
On July 29, 2016, the plaintiffs commenced the pres-
ent action against the defendant. Specifically, they
claimed that the defendant was vicariously liable9 for
the negligence of its employees who perforated Bruce
Cockayne’s rectum during the course of an enema
administration. The complaint also set forth Marion
Cockayne’s derivative claim for loss of consortium. A
trial was conducted over several days in January, 2020.
After the plaintiffs rested, the defendant moved for a
directed verdict, claiming that the plaintiffs had failed
to present an evidentiary basis (1) as to when the perfo-
ration of the rectum had occurred and, therefore, which
of the defendant’s employees, Lapaan or Kaine, had
breached the applicable standard of care and (2) to
support their claim that the tip of the Rowasa enema
was long enough to cause the perforation. The court
reserved its decision on the defendant’s motion for a
directed verdict and permitted the issues to be submit-
ted to the jury.10
On January 24, 2020, the jury returned a verdict in
favor of the plaintiffs. As to the medical malpractice
claim alleged in count one of the complaint, the jury
awarded Bruce Cockayne $382,732.21 in past economic
damages and $2,105,027.16 in noneconomic damages.
As to the loss of consortium claim alleged in count two
of the complaint, the jury awarded Marion Cockayne
$720,000.
On March 2, 2020, and in accordance with its prior
motion for a directed verdict, the defendant filed a
motion for judgment notwithstanding the verdict pursu-
ant to Practice Book §§ 16-35 and 16-37. That same day,
the defendant also filed a motion to set aside the verdict
and sought a new trial pursuant to Practice Book § 16-
35. In two memoranda of decisions dated August 25,
2020, the court denied the defendant’s postverdict
motions. This appeal followed. Additional facts will be
set forth as necessary.
I
The defendant first claims that the court improperly
denied its motion for judgment notwithstanding the
verdict. It contends that the plaintiffs presented insuffi-
cient evidence that either Kaine or Lapaan, the nurses
employed by the defendant, negligently caused the per-
foration in Bruce Cockayne’s rectum. Specifically, the
defendant argues that the evidence, viewed in the light
most favorable to the plaintiffs, failed to prove that (1)
the Rowasa enema physically could have caused the
perforation in the posterior of the rectum and (2) the
defendant’s employees negligently administered the
enema. The plaintiffs counter that they presented suffi-
cient evidence for the jury to find that the Rowasa
enema perforated the rectum and that the perforation
was caused by the negligence of one of the nurses in
administering the enemas. We agree with the plaintiffs.
As a preliminary matter, we address the applicable
standard of review. The parties do not agree on the
standard of review with respect to the issues raised
in this appeal. The plaintiffs argue that the abuse of
discretion standard applies while the defendant con-
tends that our review is de novo. We acknowledge that
numerous cases from our appellate courts have referred
to the abuse of discretion standard in the context of
reviewing the decision of the trial court regarding a
motion for judgment notwithstanding the verdict or a
motion to set aside the verdict. See, e.g., Landmark
Investment Group, LLC v. CALCO Construction &
Development Co., 318 Conn. 847, 862–63, 124 A.3d 847(2015); Ulbrich v. Groth, 310 Conn. 375, 437, 78 A.3d
76 (2013); Grayson v. Wofsey, Rosen, Kweskin & Kuri-
ansky, 231 Conn. 168, 178, 646 A.2d 195 (1994); Lappos-
tato v. Terk, 143 Conn. App. 384, 408–409, 71 A.3d 552,
cert. denied, 310 Conn. 911, 76 A.3d 627 (2013); Mac-
chietto v. Keggi, 103 Conn. App. 769, 777, 930 A.2d
817, cert. denied, 284 Conn. 934, 935 A.2d 151 (2007).
Nevertheless, we disagree with the plaintiffs that the
abuse of discretion standard applies to the defen-
dant’s claims.
In the present case, the defendant has challenged the
sufficiency of the evidence to support the jury’s verdict
in its motions for judgment notwithstanding the verdict
and to set aside the verdict.11 The standard for appellate
review of the denial of a motion for judgment notwith-
standing the verdict is well settled and mirrors the stan-
dard applicable to a motion for a directed verdict.
‘‘Directed verdicts are not favored. . . . A trial court
should direct a verdict only when a jury could not rea-
sonably and legally have reached any other conclusion.
. . . In reviewing the trial court’s decision [to deny
the defendant’s motion for a directed verdict] we must
consider the evidence in the light most favorable to the
plaintiff. . . . Although it is the jury’s right to draw
logical deductions and make reasonable inferences
from the facts proven . . . it may not resort to mere
conjecture and speculation. . . . A directed verdict is
justified if . . . the evidence is so weak that it would
be proper for the court to set aside a verdict rendered
for the other party. . . . The foregoing standard of
review also governs the trial court’s denial of the defen-
dant’s motion for judgment notwithstanding the verdict
because that motion is not a new motion, but [is] the
renewal of [the previous] motion for a directed verdict.’’
(Citation omitted; internal quotation marks omitted.)
Bagley v. Adel Wiggins Group, 327 Conn. 89, 102, 171
A.3d 432 (2017); see also Haynes v. Middletown, 314
Conn. 303, 311–12, 101 A.3d 249 (2014).
Our Supreme Court has applied the plenary standard
of review when reviewing the propriety of a trial court’s
ruling on a motion for directed verdict based on a claim
of insufficient evidence. In Curran v. Kroll, 303 Conn.
845, 855, 37 A.3d 700 (2012), the trial court granted the
defendants’ motion for a directed verdict on the basis
that the plaintiff failed to present any evidence of a
breach of the standard of care in a medical malpractice
action. This court reversed the decision of the trial
court, concluding that ‘‘the evidence presented by the
plaintiff at trial would support a reasonable inference
that [the defendant physician] had failed to warn the
decedent adequately of the signs and symptoms associ-
ated with the risks of taking birth control pills.’’ Id. The
defendant then appealed to our Supreme Court. Id.In affirming the decision of this court, our Supreme
Court noted the following with respect to the standard
of review used in its analysis: ‘‘Whether the evidence
presented by the plaintiff was sufficient to withstand
a motion for a directed verdict is a question of law,
over which our review is plenary.’’ Id.; see MacDermid,
Inc. v. Leonetti, 328 Conn. 726, 744, 183 A.3d 611 (2018)
(‘‘[w]hether the evidence presented by the plaintiff is
sufficient to withstand a motion for a directed verdict
is a question of law’’ subject to plenary review, and ‘‘ ‘[a]
directed verdict is justified [only] if . . . the evidence
is so weak that it would be proper . . . to set aside a
verdict rendered for the other party’ ’’); see also Farrell
v. Johnson & Johnson, 335 Conn. 398, 416–17, 238 A.3d
698 (2020); Pellet v. Keller Williams Realty Corp., 177
Conn. App. 42, 50, 172 A.3d 283 (2017). We conclude,
therefore, that the proper appellate standard in the pres-
ent case is plenary review.
We also note that ‘‘[t]wo further fundamental points
bear emphasis. First, the plaintiff in a civil matter is
not required to prove his case beyond a reasonable
doubt; a mere preponderance of the evidence is suffi-
cient. Second, the well established standards compel-
ling great deference to the historical function of the
jury find their roots in the constitutional right to a trial
by jury.’’ (Internal quotation marks omitted.) Procac-
cini v. Lawrence + Memorial Hospital, Inc., 175 Conn.
App. 692, 716, 168 A.3d 538, cert. denied, 327 Conn. 960,
172 A.3d 801 (2017); see also Millette v. Connecticut
Post Ltd. Partnership, 143 Conn. App. 62, 68, 70 A.3d
126 (2013). Indeed, our Supreme Court has recognized
that circumstantial evidence, coupled with the reason-
able inferences drawn therefrom, can support a finding
of causation in a medical malpractice action. Console
v. Nickou, 156 Conn. 268, 274–75, 240 A.2d 895 (1968).
‘‘The test of the sufficiency of proof by circumstantial
evidence is whether rational minds could reasonably
and logically draw the inference. . . . The proof need
not be so conclusive that it precludes every other
hypothesis. It is sufficient if the proof produces in the
mind of the trier a reasonable belief that it is more
probable than otherwise that the fact to be inferred
is true.’’ (Citations omitted; internal quotation marks
omitted.) Id., 275.
Next, it is instructive to review the relevant legal
principles pertaining to claims of medical malpractice.
‘‘[T]o prevail in a medical malpractice action, the plain-
tiff must prove (1) the requisite standard of care for
treatment, (2) a deviation from that standard of care,
and (3) a causal connection between the deviation and
the claimed injury. . . . Generally, expert testimony is
required to establish both the standard of care to which
the defendant is held and the breach of that standard.
. . . Likewise, [e]xpert medical opinion evidence is
usually required to show the cause of an injury or dis-
ease because the medical effect on the human system
of the infliction of injuries is generally not within the
sphere of the common knowledge of the lay person.’’
(Citations omitted; internal quotation marks omitted.)
Procaccini v. Lawrence + Memorial Hospital, Inc.,
supra, 175 Conn. App. 717–18; see also Rosa v. Law-
rence & Memorial Hospital, 145 Conn. App. 275, 303,
74 A.3d 534 (2013); Hammer v. Mount Sinai Hospital,
25 Conn. App. 702, 717–18, 596 A.2d 1318, cert. denied,
220 Conn. 933, 599 A.2d 384 (1991).12 We remain mindful,
however, that the mere fact that an injury followed a
medical procedure is insufficient to establish negli-
gence. Mozzer v. Bush, 11 Conn. App. 434, 438 n.4, 527
A.2d 727 (1987); see also Krause v. Bridgeport Hospital,
169 Conn. 1, 8, 362 A.2d 802 (1975).
The defendant’s appeal focuses on causation. ‘‘All
medical malpractice claims, whether involving acts or
inactions of a defendant . . . require that a [defen-
dant’s] . . . conduct proximately cause the plaintiff’s
injuries. The question is whether the conduct of the
defendant was a substantial factor in causing the
plaintiff’s injury. . . . This causal connection must
rest upon more than surmise or conjecture. . . . A
trier is not concerned with possibilities but with rea-
sonable probabilities. . . . The causal relation
between an injury and its later physical effects may
be established by the direct opinion of a physician, by
his deduction by the process of eliminating causes
other than the traumatic agency, or by his opinion
based upon a hypothetical question. . . .
‘‘[I]t is the plaintiff who bears the burden to prove
an unbroken sequence of events that tied his injuries to
the [defendant’s conduct]. . . . A plaintiff, however, is
not required to disprove all other possible explanations
for the accident but, rather, must demonstrate that it
is more likely than not that the defendant’s negligence
was the cause of the accident.’’ (Citations omitted;
emphasis altered; internal quotation marks omitted.)
Procaccini v. Lawrence + Memorial Hospital, Inc.,
supra, 175 Conn. App. 718–19; see also Sargis v.
Donahue, 142 Conn. App. 505, 513, 65 A.3d 20, cert.
denied, 309 Conn. 914, 70 A.3d 38 (2013).
To determine whether the plaintiff has carried his or
her burden with respect to causation, ‘‘an expert opin-
ion need not walk us through the precise language of
causation . . . . To be reasonably probable, a conclu-
sion must be more likely than not. . . . Whether an
expert’s testimony is expressed in terms of a reason-
able probability that an event has occurred does not
depend upon the semantics of the expert or his use of
any particular term or phrase, but rather, is deter-
mined by looking at the entire substance of the expert’s
testimony. . . . [S]ee, e.g., State v. Weinberg, 215
Conn. 231, 245, 575 A.2d 1003 ([a]n expert witness is
competent to express an opinion, even though he or
she may be unwilling to state a conclusion with absolute
certainty, so long as the expert’s opinion, if not stated
in terms of the certain, is at least stated in terms of the
probable, and not merely the possible . . . ), cert.
denied, 498 U.S. 967, 111 S. Ct. 430, 112 L. Ed. 2d 413(1990); Aspiazu v. Orgera, 205 Conn. 623, 632–33, 535
A.2d 338 (1987) ([w]hile we do not believe that it is
mandatory to use talismanic words or the particular
combination of magical words represented by the
phrase reasonable degree of medical certainty [or prob-
ability] . . . there is no question that, to be entitled to
damages, a plaintiff must establish the necessary causal
relationship between the injury and the physical or men-
tal condition that he claims resulted from it . . .).’’
(Citations omitted; emphasis added; internal quotation
marks omitted.) Rosa v. Lawrence & Memorial Hospi-
tal, supra, 145 Conn. App. 304; see also Struckman v.
Burns, 205 Conn. 542, 554–55, 534 A.2d 888 (1987).
Guided by these principles, we set forth a detailed
description of the evidence produced at trial by the
plaintiffs regarding causation.13
Lapaan’s deposition testimony was read to the jury
during the trial. Her full-time employment with the
defendant commenced in November, 2012. During
Bruce Cockayne’s hospital admission in February, 2014,
Lapaan was his ‘‘primary nurse.’’ He was the only patient
to whom she had ever administered a Rowasa enema,
and this occurred at approximately 8:15 p.m. on Febru-
ary 13, 2014. Lapaan described the Rowasa enema as
having a shorter tip than other types of enemas and
noted that rectal perforation was a concern. She further
stated that if the tip of the Rowasa enema was manipu-
lated excessively, it potentially could cause damage.
Kaine testified that she began her employment with
the defendant in August, 2013, following her graduation
from nursing school. She administered her first unsu-
pervised enema at approximately 9:45 p.m. on February
11, 2014, to Bruce Cockayne and her second at approxi-
mately 8 p.m. the next day. Kaine explained that the
proper administration of a Rowasa enema required her
to position the patient on his left side and bring the
knees up to the chest. She would then guide the tip of
the enema into the anus and anal canal, directing it
toward the belly button of the patient. Kaine agreed
that misdirecting the tip of the enema, or an excessive
use of force, would constitute a violation of the standard
of care.14
The plaintiffs’ attorneys read the transcript of Bagdas-
arian’s deposition testimony to the jury. Bagdasarian
opined that an internal hemorrhoid caused the massive
bleeding on February 14, 2014, and that this issue was
distinct from the older rectal perforation, which was
located ‘‘slightly deeper or higher’’ and on the opposite
side. He further stated that the insertion of a foreign
body, such as a Rowasa enema, into the rectum caused
the perforation that resulted in the sepsis suffered by
Bruce Cockayne, but he could not definitively identify
the specific item that caused this injury.15 Bagdasarian
then noted the perforation likely occurred prior to Feb-
ruary 14, 2014.
On the third day of the trial, the plaintiffs presented
expert testimony from Mark Korsten, a physician board
certified in internal medicine and gastroenterology.16
Korsten stated that, as a part of his duties, he trained
physicians in the proper administration of enemas and
that this procedure or technique would apply to both
physicians and nurses. He explained that if the patient
has a hemorrhoid or tender skin, then a more cautious
approach is warranted. Korsten noted that, if the
inserted object comes into contact with the hemor-
rhoid, the patient may ‘‘strain’’ and alter the anatomy
of the rectum, making the procedure ‘‘more difficult
and maybe more dangerous.’’ Korsten also testified that
he located two medical articles that recognized the
possibility of rectal perforation resulting from an
enema.17
Korsten reviewed Bruce Cockayne’s medical records
from the defendant and Hartford Hospital, as well as
various deposition testimony. He described the perfora-
tion as a ‘‘significant tear’’ located not very far into the
rectum, just past the terminus of the anal canal. Korsten
stated that the insertion of a foreign body constituted
the most common cause of a rectal tear. He opined, to
a reasonable degree of medical probability, that the tip
of an enema caused the perforation.18 He had seen this
injury only when there had been a deviation from the
standard of care in the administration of an enema.19
The location of the perforation, the right posterior wall
of the rectum, led Korsten to believe that the enema
had been administered incorrectly. He rejected the pos-
sibility in this case that the perforation was caused
by Crohn’s disease.20 Additionally, Korsten ruled out a
colonoscopic injury as the cause of this perforation, as
there would have been symptoms, such as intense pain,
almost immediately.
Korsten agreed with the defendant’s counsel that the
tip of a Rowasa enema measured 1.75 inches. He further
testified during cross-examination that the length of the
anal canal ranges between 3 centimeters and approxi-
mately 5.3 centimeters and that there is approximately
2.5 centimeters per inch. He explained, therefore, that
the length of the Rowasa enema, approximately 1.75
inches, could reach beyond the anal canal to the loca-
tion of the perforation in Bruce Cockayne’s rectum.21
During redirect examination, Korsten discussed the
summary prepared when Bruce Cockayne was trans-
ferred from the defendant to Hartford Hospital. The
physician who prepared that document opined that the
perforation was caused by ‘‘aggressive enema’’ use. Kor-
sten explained that this notation referred to excessive
force employed in the administration of the enemas.
He iterated that misdirection, excessive force, or some
combination of the two, caused the perforation and
constituted a violation of the standard of care.
The plaintiffs also presented expert testimony from
Natalie Mohammed, a registered nurse, who had
reviewed the medical records and certain deposition
testimony. She testified that, assuming that the perfora-
tion had occurred on February 11, 12 or 13, 2014, and
that the perforation resulted from improper positioning
and/or excessive force during the administration of a
Rowasa enema, it was her opinion, to a reasonable
degree of medical probability, that there was a deviation
from the standard of care. In providing this testimony,
she expressly relied on Korsten’s testimony regarding
the issue of causation.
After the plaintiffs had rested, the defendant moved
for a directed verdict. Specifically, the defendant’s
counsel argued that the jury lacked an evidentiary basis
to determine (1) whether the Rowasa enema was long
enough to cause the perforation and (2) when the perfo-
ration occurred and, therefore, which nurse, Lapaan or
Kaine, breached the standard of care. After hearing
further argument from both parties, the court reserved
its decision on the defendant’s motion for a directed
verdict. The jury subsequently returned a verdict in
favor of the plaintiffs.
On March 2, 2020, the defendant filed a motion for
judgment notwithstanding the verdict. It argued that
‘‘the only expert opinions presented at trial were that
the existence of the perforation, standing alone, consti-
tuted negligence.’’ The defendant further argued that
‘‘the plaintiffs did not provide any testimony or evidence
that would have allowed the jury to determine that the
Rowasa enema was long enough to reach the spot of
the perforation.’’ The plaintiffs filed their objection two
weeks later.
On August 25, 2020, the court issued a memorandum
of decision denying the defendant’s motion for judg-
ment notwithstanding the verdict. The court noted that
Korsten’s testimony established causation by ruling out
other possible causes of the injury, such as a spontane-
ous perforation due to Crohn’s disease or perforation
from the colonoscopy or from the enema administered
by Marion Cockayne. The court further relied on Kors-
ten’s testimony concerning the improper administration
of the enemas, that either misdirection or excessive
force, or a combination thereof, caused the perforation.
Finally, the court concluded that the medical records,
diagrams and other demonstrative evidence provided a
sufficient basis for the jury to conclude that the Rowasa
enema was of a sufficient length to have caused the
injury in this case. ‘‘Viewing all of the evidence pre-
sented at trial, the court does not find that the verdicts
were manifestly unjust because the jury mistakenly
applied a legal principle or because there was no evi-
dence to which the legal principles of the case could
be applied. Rather, the court finds that the jury could
reasonably and legally have reached the conclusion that
it did. Consequently, the verdicts must stand.’’
On appeal, the defendant iterates its contention that
the plaintiffs failed to meet their burden with respect
to causation. Specifically, it argues that there was insuf-
ficient evidence that (1) the Rowasa enema could cause
the perforation in the posterior of the rectum and (2)
either of the defendant’s employees negligently admin-
istered the enema. We will address each contention
in turn.
A
The defendant first contends that the plaintiffs failed
to produce sufficient evidence from which the jury rea-
sonably could conclude that the Rowasa enema could
have caused the perforation in the posterior of the rec-
tum. Specifically, it argues that there was no expert
evidence presented that the Rowasa enema was of suffi-
cient length or rigidity to have caused the perforation
sustained by this specific individual. We are not per-
suaded.22
In its brief, the defendant asserts that the evidence
at trial established that the tip of the Rowasa enema
was 4.375 centimeters in length and that the average
length of the anal canal is between 3.5 centimeters and
5 centimeters. ‘‘Therefore, if [Bruce] Cockayne’s anal
canal was anywhere near the long end of average, the
tip of the Rowasa enema could not have reached beyond
the anal canal into the rectum, let alone to the posterior
of the rectum. And even if [Bruce] Cockayne had a
shorter anal canal within that range, it is almost incon-
ceivable that the soft, flexible tip of the Rowasa enema
could have rounded the bend at the end of the canal
and crossed the rectum to cause a two centimeter punc-
ture in the posterior rectal wall.’’ (Internal quotation
marks omitted.) The defendant essentially argues that
the plaintiffs were required to present evidence of Bruce
Cockayne’s specific anatomical measurements, rather
than the average range.
During his testimony, Korsten described the perfora-
tion: ‘‘Well, it’s considered to be a significant tear. It’s
a long tear. It was not very far into the rectum. It was
just in an area where the anal canal had ended and just
into the most terminal part of the rectum . . . .’’ He
also stated that the improper administration of an
enema could cause such a perforation. He had physi-
cally examined this type of enema. Korsten described
the tip of the Rowasa enema as ‘‘not that flexible’’ and
having ‘‘some stiffness to it.’’ Korsten also opined that
aggressive force had been used during the administra-
tion of the enemas during the hospitalization. He stated
that the length of the anal canal ranged, on average,
between 3 centimeters and 5.3 centimeters and, there-
fore, the tip of the enema, measuring 4.375 centimeters,
could reach into the rectum, the location of the perfora-
tion in this case. Additionally, he noted that, ‘‘[i]n certain
circumstances, the tip may well not bend the way you
would like it to bend. It may get caught, snag itself, the
tip may get snagged against the lining of the intestine
and as you continue to push, it is definitely possible,
if not likely, that this tool is strong enough to go through
the rectum.’’ In conclusion, Korsten stated that there
was ‘‘no doubt’’ in his mind that the Rowasa enema was
capable of causing the perforation suffered by Bruce
Cockayne.
The defendant has failed to cite any authority for its
assertion that the plaintiffs needed to provide specific
evidence of Bruce Cockayne’s actual anatomical mea-
surements. This argument imposes a requirement on
expert testimony and evidence beyond that found in our
jurisprudence. ‘‘Expert opinions must be based upon
reasonable probabilities rather than mere speculation
or conjecture if they are to be admissible in establishing
causation. . . . To be reasonably probable, a conclu-
sion must be more likely than not.’’ (Internal quotation
marks omitted.) Peatie v. Wal-Mart Stores, Inc., 112
Conn. App. 8, 21, 961 A.2d 1016 (2009). The plaintiff is
not required to disprove all other possible explanations.
Procaccini v. Lawrence + Memorial Hospital, Inc.,
supra, 175 Conn. App. 719. We iterate that an expert is
not required to use talismanic words to show reason-
able probability so long as it is clear that his or her
opinion is based on reasonable probabilities, i.e., more
likely than not, to establish that the opinion constitutes
more than pure speculation. Milliun v. New Milford
Hospital, 129 Conn. App. 81, 100, 20 A.3d 36 (2011),
aff’d, 310 Conn. 711, 80 A.3d 887 (2013); see also State
v. Nunes, 260 Conn. 649, 672–73, 800 A.2d 1160 (2002);
Gois v. Asaro, 150 Conn. App. 442, 449–50, 91 A.3d
513 (2014).
The jury heard different expert opinions regarding
whether the Rowasa enema could have caused the per-
foration and was tasked with determining which opin-
ion to believe. See Scott v. CCMC Faculty Practice Plan,
Inc., 191 Conn. App. 251, 260, 214 A.3d 393 (2019). We
emphasize that ‘‘[c]onflicting expert testimony does not
necessarily equate to insufficient evidence. . . .
Rather, [w]here expert testimony conflicts, it becomes
the function of the trier of fact to determine credibility
and, in doing so, it could believe all, some or none of
the testimony of [an] expert. . . . It is axiomatic that
in cases involving conflicting expert testimony, the jury
is free to accept or reject each expert’s opinion in whole
or in part.’’ (Citations omitted; internal quotation marks
omitted.) Procaccini v. Lawrence + Memorial Hospital,
Inc., supra, 175 Conn. App. 721; see also Ayres v. Ayres,
193 Conn. App. 224, 246, 219 A.3d 894, cert. denied, 334
Conn. 903, 219 A.3d 800 (2019), and cert. denied, 334
Conn. 903, 219 A.3d 800 (2019); Arroyo v. University
of Connecticut Health Center, 175 Conn. App. 493, 518,
167 A.3d 1112, cert. denied, 327 Conn. 973, 174 A.3d
192 (2017); see generally Nash v. Hunt, 166 Conn. 418,
426, 352 A.2d 773 (1974) (jurors not obliged to accept
ultimate opinion of expert witness and if such witness
is not found credible, jurors will reject his or her opinion
regardless of whether they believe or disbelieve subor-
dinate facts on which expert opinion is based; further,
jurors must reject expert opinion to extent it is based
upon subordinate facts which they determine are not
proved). For these reasons, we conclude that the plain-
tiffs met their burden of producing sufficient evidence
that the Rowasa enema was physically capable of caus-
ing the perforation in the present case, and, therefore,
the defendant’s arguments to the contrary must fail.
See Landmark Investment Group, LLC v. CALCO Con-
struction & Development Co., supra, 318 Conn. 863(trial court may grant motion for judgment notwith-
standing verdict only if jury could not reasonably and
legally reach any other conclusion and ‘‘must deny such
a motion ‘where it is apparent that there was some
evidence upon which the jury might reasonably reach
[its] conclusion’ ’’).
B
The defendant next argues that the plaintiffs failed
to produce sufficient evidence from which the jury rea-
sonably could conclude that either of its employees,
Kaine or Lapaan, negligently administered the enema.23
Specifically, it contends that the plaintiffs failed to pres-
ent any affirmative evidence that either nurse negli-
gently caused the perforation and that the use of a
differential diagnosis is an improper method of estab-
lishing causation. We disagree.
The defendant’s argument relies significantly on our
decision in Mozzer v. Bush, supra, 11 Conn. App. 434.
In that case, the plaintiff sustained a right ulnar neurop-
athy during a gall bladder operation. Id., 435. The plain-
tiff claimed that the surgeon and anesthesiologist negli-
gently positioned her right arm during the surgery. Id.
The plaintiff testified ‘‘that she had no knowledge of
what had transpired in the operating room, and did not
remember being positioned on the operating table.’’ Id.
During the trial, the plaintiff’s first expert witness, a
neurosurgeon, opined that her injury ‘‘was ‘related in
some way to her surgical procedure.’ ’’ Id. The plaintiff’s
second expert witness, an anesthesiologist, testified, in
response to a hypothetical question, that, in his opinion,
the injury had occurred during the surgery. Id., 435–36.
After the plaintiff rested, the trial court struck the
testimony of the plaintiff’s experts and granted the
defendants’ motions for directed verdicts. Id., 436. Spe-
cifically, the court determined ‘‘that the testimony of
such expert witnesses was purely speculative . . . and
[that] such testimony could not be used reasonably to
support a verdict for the plaintiff . . . .’’ (Internal quo-
tation marks omitted.) Id.
On appeal, the plaintiff claimed that the court erred
in striking her experts’ testimony after she had con-
cluded her case. Id. We determined that this claim had
not been raised before the trial court and was not plain
error. Id., 437–38. Accordingly, we declined to address
the merits of her claim regarding the timing of the trial
court’s decision to strike the expert testimony. Id., 438.
This court expressly has noted the limited applicabil-
ity of Mozzer. For example, in Samose v. Hammer-
Passero Norwalk Chiropractic Group, P.C., 24 Conn.
App. 99, 100, 586 A.2d 614, cert. denied, 218 Conn.
903, 588 A.2d 1079 (1991), the plaintiffs commenced a
malpractice action against a business entity and two of
its agents who were chiropractors. The jury returned
a verdict in favor of the plaintiff with respect to one of
the chiropractors and the business entity. Id., 101. On
appeal, the defendants claimed that the trial court
improperly failed to direct a verdict in their favor on the
basis that the plaintiff presented insufficient evidence
to prevail. Id., 102. In rejecting this claim and affirming
the judgment, we noted that there was evidence for the
jury to find that the failure to take X-rays, coupled with
a subsequent spinal manipulation of the seventy-six
year old plaintiff, constituted a deviation from the appli-
cable standard of care. Id., 103. The jury also heard
evidence of causation from numerous witnesses regard-
ing the degree of force and the type of spinal manipula-
tion done on successive days to the plaintiff’s back. Id.,
104. One of the experts specifically identified which
chiropractor ruptured the plaintiff’s disc. Id.
In rejecting the defendant’s reliance on Mozzer v.
Bush, supra, 11 Conn. App. 434, we noted that the plain-
tiff in that case had presented no evidence as to what
had occurred during her surgery and completely failed
to identify any specific act of negligence by a particular
person. Samose v. Hammer-Passero Norwalk Chiro-
practic Group, P.C., supra, 24 Conn. App. 105–106. ‘‘[I]n
contrast [to Mozzer], the plaintiff met his burden of
presenting evidence as to what took place at the chiro-
practors’ offices and who acted on him on the dates in
question. Mozzer is thus distinguishable from [Samose]
and does not control its outcome.’’ Id., 106; see also
Amsden v. Fischer, 62 Conn. App. 323, 331–32, 771
A.2d 233 (2001) (Mozzer was distinguishable and court
properly denied motions for directed verdict and to set
aside jury’s verdict when plaintiff met his burden of
proving what transpired during surgery and follow-up
visits).
In the present case, the jury heard evidence that there
was no perforation of Bruce Cockayne’s rectum in Janu-
ary, 2014, that the most likely cause of the rectal perfora-
tion was the insertion of a foreign object, and that
nothing had been inserted into Bruce Cockayne’s anus
or rectum following the attempted enema administra-
tion by Marion Cockayne until his February, 2014 hospi-
talization and the administration of enemas by the
defendant’s employees. The jury also heard expert testi-
mony as to four possible causational events: (1) a colon-
oscopy, (2) Marion Cockayne’s attempted administra-
tion of a Rowasa enema at the plaintiffs’ home, (3) the
nurses’ administration of Rowasa enemas during Bruce
Cockayne’s February, 2014 hospitalization, and (4) a
spontaneous tearing of the rectum as a result of Crohn’s
disease.
Korsten used a differential diagnosis to eliminate the
colonoscopy, the attempted administration of the
Rowasa enema at the plaintiffs’ home, and the spontane-
ous tearing of the rectum as a result of Crohn’s disease
as the cause of the perforation. He opined that, to a
reasonable degree of medical probability, a Rowasa
enema administered during the February, 2014 hospital-
ization of Bruce Cockyne caused the perforation. Our
Supreme Court has defined a differential diagnosis as
‘‘a method of diagnosis that involves a determination of
which of a variety of possible conditions is the probable
cause of an individual’s symptoms, often by a process
of elimination. See, e.g., Stedman’s Medical Dictionary
(28th Ed. 2006) p. 531.’’ DiLieto v. County Obstetrics &
Gynecology Group, P.C., 297 Conn. 105, 114 n.13, 998
A.2d 730 (2010). It is clear, therefore, that the defen-
dant’s attempt to establish the type of evidentiary lacu-
nae present in Mozzer v. Bush, supra, 11 Conn. App.
436, is unavailing. See, e.g., Procaccini v. Lawrence +
Memorial Hospital, Inc., supra, 175 Conn. App. 725–27
(causation in medical malpractice action may be proved
by circumstantial evidence and expert testimony).
The defendant also argues that a differential diagno-
sis is not a valid means to establish causation. We dis-
agree. A review of our case law reveals numerous exam-
ples that support the use of a differential diagnosis. For
example, in Sargis v. Donahue, supra, 142 Conn. App.
513, this court indicated that a causal relationship
between an injury and its later physical effects may be
established by, inter alia, a physician’s deduction by
the process of eliminating other causes.
Decisions from our Supreme Court provide further
guidance and support for the use of a differential diag-
nosis in establishing causation in a medical malpractice
action. In Milliun v. New Milford Hospital, 310 Conn.
711, 714–16, 80 A.3d 887 (2013), the plaintiff, the conser-
vator of an individual (the patient) who suffered from
a rare neurological disease, filed an action against the
defendant hospital for medical malpractice. Specifi-
cally, the plaintiff claimed that, while in the defendant’s
care, the patient experienced a calamitous, four minute
respiratory event during which her rate of breathing
fell to a rate of only two breaths per minute. Id., 715.
Following this anoxic incident, the patient sustained
severe injury to her cognitive functioning. Id., 715–16.
The plaintiff alleged negligence on the part of the defen-
dant for failing to monitor the patient, failing to respond
to her respiratory distress, and administering medica-
tion known to cause respiratory distress when com-
bined with another medication that the patient was
taking. Id., 716.
The patient was evaluated and treated at the Mayo
Clinic in Rochester, Minnesota. Id. Two of the physi-
cians at the Mayo Clinic opined that the patient’s cogni-
tive impairment was caused by the anoxic incident and
not her underlying neurological disorder. Id., 717. These
physicians were among those disclosed as experts by
the plaintiff, but the internal policies of the Mayo Clinic
prevented the defendant from deposing these wit-
nesses. Id., 718. The defendant requested that the court
preclude the plaintiff from relying on the medical
records of the treating physicians as to the issue of
causation; the plaintiff countered that the medical
records of the treating physicians were sufficient to
establish this element of her case. Id., 719. Ultimately,
the trial court agreed with the defendant and granted
its motion for summary judgment on the basis that the
plaintiff had failed to establish the element of causation
by expert testimony. Id., 722.
On appeal, our Supreme Court commenced its analy-
sis by stating that causation may be established by a
signed report of a treating physician in place of live
testimony, so long as the defendant was afforded the
opportunity to cross-examine the author of such a
report. Id., 725–26. It then explained that an expert’s
opinion may be based on hearsay. Id., 727.24
After a careful review of the medical records, in
which the Mayo Clinic physicians had considered the
patient’s medical history and had conducted their own
testing and examinations, our Supreme Court con-
cluded that these physicians had sufficient, reliable
information to diagnose the patient and to determine
the cause of her cognitive impairment. Id., 731–32. ‘‘The
physicians ruled out [the patient’s neurological condi-
tion] or some other neurodegenerative condition as the
cause of those injuries and apparently concluded that
the anoxic incident, as described, was the presumptive
cause of [the patient’s] cognitive deficits because such
a causal relationship was consistent with the timing of
the onset of symptoms, the symptoms manifested and
the results of comprehensive examination and testing.
Such a deductive process is a proper method on which
to base an opinion as to causation. . . . Although
there may be other possible causes that the physicians
did not consider, such matters go to weight, not admis-
sibility.’’ (Citations omitted; emphasis altered.) Id.,
732–33; see also Mancuso v. Consolidated Edison Co.
of New York, Inc., 967 F. Supp. 1437, 1446 (S.D.N.Y.
1997) (critical to establishing specific causation is
exclusion of other possible causes of symptoms, and
this method of considering all relevant potential causes
and eliminating alternative causes based upon physical
examination, clinical tests and thorough case history
is called differential diagnosis).
In Klein v. Norwalk Hospital, 299 Conn. 241, 243–44,
9 A.3d 364 (2010), the plaintiff was receiving intrave-
nous antibiotics following an operation. A registered
nurse employed by the defendant inserted a new intra-
venous line into his left arm, and, following this proce-
dure, he experienced neurological deficits in his left
hand. Id., 244–45. The plaintiff alleged that the defen-
dant’s employee committed medical malpractice by
improperly inserting the intravenous line and causing
an anterior interosseous nerve palsy. Id., 245.
The defendant disclosed an expert to testify that the
plaintiff’s condition was the result of Parsonage Turner
Syndrome. Id. During the trial, the plaintiff’s expert,
who had not been disclosed as an expert on Parsonage
Turner Syndrome, was asked about it on direct exami-
nation. Id., 245–46. The court sustained the defendant’s
objection but allowed the plaintiff’s expert to testify
outside of the presence of the jury regarding his knowl-
edge of this condition. Id., 246. The jury returned a
verdict for the defendant, which the court accepted.
Id., 247–48.
On appeal, the plaintiff claimed that the court improp-
erly excluded his expert from testifying in front of the
jury regarding Parsonage Turner Syndrome. Id., 249.
Our Supreme Court, agreeing with the plaintiff, first
observed that the disclosure of the plaintiff’s expert
indicated that he would testify on the issue of causation.
Id., 251–52. This disclosure implicitly informed the
defendant that the expert’s testimony would include
what did not cause the plaintiff’s injury. Id., 252. Our
Supreme Court discussed the expert’s use of a differen-
tial diagnosis. Id. ‘‘In the present case, [the plaintiff’s
expert] was permitted to testify that, in his expert opin-
ion, the plaintiff’s alleged injury can only happen as a
result of negligence as a result of deviating from the
standard of care. To the extent that this conclusion
was the result of [the plaintiff’s expert’s] differential
diagnosis, it necessarily was based on his consideration
and elimination of the other possible causes for the
alleged injury, including the theory of causation
advanced by the defendant. This court never has articu-
lated a requirement that a disclosure include an exhaus-
tive list of each specific topic or condition to which
an expert might testify as the basis for his diagnosis;
disclosing a categorical topic such as causation gener-
ally is sufficient to indicate that testimony may encom-
pass those issues, both considered and eliminated, nec-
essary to explain conclusions within that category.’’
(Internal quotation marks omitted.) Id.Our Supreme Court then considered whether the trial
court’s improper exclusion of the plaintiff’s expert wit-
ness was harmful. Id., 254–56. It noted that the plaintiff’s
case presented, on the issue of causation, a choice
between the plaintiff’s theory of an errant intravenous
needle stick and the defendant’s theory of Parsonage
Turner Syndrome. Id., 256–57. It also reasoned that the
plaintiff’s expert was the only physician who testified
that the defendant, through its employee, had breached
the standard of care. Id., 258. ‘‘Because that conclusion
rested on a differential diagnosis of the plaintiff’s
alleged injury, that diagnosis and its component exclu-
sions of other possible causes were uniquely important
to the issue of breach, and accordingly, were not repli-
cated by any other evidence at trial. The other expert
testimony excluding Parsonage Turner Syndrome
addressed only causation, and did not address the ques-
tion of breach. . . . Additionally, it is significant, in
our view, to consider that [the] excluded testimony [of
the plaintiff’s expert] also would have aided in establish-
ing his credibility as an expert and the reliability of his
ultimate conclusions in the eyes of the jury. In other
words, but for the trial court’s improper exclusion, [the
plaintiff’s expert] could have explained not only that
he had rejected the defense theory of Parsonage Turner
Syndrome as a cause, but also why he had done so.’’
(Citation omitted; footnote omitted.) Id., 258.
On the basis of these cases, we conclude that the
use of a differential diagnosis in the present case was
proper and sufficient to establish the plaintiffs’ theory
of causation; that is, that the defendant’s employees
caused the perforation suffered by Bruce Cockayne
during his February, 2014 hospitalization.25
II
The defendant next claims that the court improperly
denied its motion to set aside the verdict and order a
new trial. Specifically, it argues that the plaintiffs failed
to present expert evidence that Lapaan negligently
caused the perforation and, therefore, the jury improp-
erly was permitted to consider a specification of negli-
gence unsupported by the evidence. We are not per-
suaded by this claim.
On January 21, 2020, the defendant filed proposed
jury interrogatories consisting of four questions. Ques-
tions one and two asked the jury to indicate whether
the plaintiffs had proved that Kaine deviated from the
standard of care in her treatment of Bruce Cockayne
in 2014, and whether this deviation had caused the
perforation.26 Questions three and four repeated these
inquiries with respect to Lapaan.27 The plaintiffs
objected to the defendant’s proposed jury interrogato-
ries on January 23, 2020.
On January 23, 2020, the plaintiffs and the defendant
expressly indicated their satisfaction with the court’s
proposed jury charge.28 The court then heard argument
regarding the defendant’s proposed jury interrogato-
ries.29 The defendant’s counsel argued, inter alia, that
the jury was required to find that at least one of its
employees, Kaine or Lapaan, was negligent.30 The court,
in the exercise of its discretion,31 denied the defendant’s
motion to submit interrogatories to the jury. It con-
cluded that the proposed interrogatories were inconsis-
tent with the agreed upon jury charge that used ‘‘and/
or’’ language with respect to the culpability of Kaine
and Lapaan and were unnecessary, given the separate
nature of the two counts alleged in the plaintiffs’ com-
plaint.32
Subsequent to the jury’s verdict, on March 2, 2020,
the defendant filed a motion to set aside the verdict
rendered in favor of the plaintiffs.33 In the attached
memorandum of law, the defendant argued: ‘‘It is . . .
impossible to know whether the jury concluded that
Kaine negligently caused the perforation or whether it
concluded that Lapaan negligently caused the perfora-
tion. The only causation expert opinion presented to
the jury was from . . . Korsten, who testified that
Kaine, not Lapaan, negligently caused the perforation.
Thus, the jury could not have reasonably concluded
that Lapaan negligently caused the rectal perforation.’’
The defendant further contended that the general ver-
dict rule34 did not apply in this case, and the court could
not presume that the jury had found that Kaine caused
Bruce Cockayne’s injury. It concluded: ‘‘The jury may
have improperly concluded that Lapaan was negligent
and that her negligence was the sole proximate cause
of the perforation.’’
On March 16, 2020, the plaintiffs filed their objection
to the defendant’s motion to set aside the verdict. In
its March 30, 2020 reply, the defendant emphasized that,
‘‘[e]ven if there was a sufficient basis to conclude that
Kaine negligently caused the perforation, it is well
established that, when the general verdict rule is inap-
plicable, a new trial is required if [the court concludes
that] . . . any ground on which the jury could have
based its verdict was improper.’’ (Emphasis omitted;
internal quotation marks omitted.) The court heard
argument from the parties on July 20, 2020.
The court issued its memorandum of decision deny-
ing the defendant’s motion to set aside the verdict on
August 25, 2020. It noted its agreement with the plain-
tiffs’ position that ‘‘it did not matter which nurse caused
Bruce Cockayne’s injuries because vicarious liability
would [have] attach[ed] in either case.’’ The court also
explained that the plaintiffs’ complaint consisted of a
primary cause of action, medical malpractice, and a
secondary, derivative cause of action, loss of consor-
tium. ‘‘Notwithstanding the [defendant’s] valiant attempts
to cast the plaintiffs’ claims as separate counts of negli-
gence directed against the individual nurses, the plain-
tiffs did not allege separate and distinct causes of action
against Nurse Kaine and Nurse Lapaan. Consequently,
the plaintiffs’ burden was to prove that either one or
both of the nurses negligently perforated Bruce Cock-
ayne’s rectum during the course of an enema treatment
causing him injury.’’35
The court concluded that the plaintiffs had presented
sufficient evidence at trial to meet their burden to pre-
vail on their claims. Specifically, it pointed to the follow-
ing in its summary of the evidence: ‘‘Korsten testified
that he did not know which of the two nurses caused
the perforation, however, when pressed by [the defen-
dant’s] counsel he stated that, more likely than not,
Nurse Kaine administered the enema that caused the
perforation. Nurse Mohammed also testified that she
could not determine which of the two nurses caused
the perforation, but that the enema administered by
Nurse Lapaan was the likely cause. . . . There was no
dispute that both nurses had administered a Rowasa
enema to Bruce Cockayne . . . .’’
The defendant’s claim here requires us to conduct a
bifurcated inquiry. First, we must determine whether
the plaintiffs presented sufficient evidence to support
a finding that Lapaan negligently caused the perfora-
tion. If we answer that question in the negative, then
we proceed to a determination of whether the jury’s
verdict may stand.36 If we conclude, however, that the
plaintiffs presented sufficient evidence with respect to
either nurse having caused the perforation, then this
claim must fail.
In addressing the initial question regarding the suffi-
ciency of the causation evidence, we emphasize that a
court should not set aside a verdict if it is apparent that
some evidence exists on which the jury might have
reached its conclusion. Rodriguez v. State, 155 Conn.
App. 462, 488, 110 A.3d 467, cert. granted, 316 Conn.
916, 113 A.3d 71 (2015) (appeal withdrawn December
15, 2015); see also Gagliano v. Advanced Specialty
Care, P.C., 329 Conn. 745, 754, 189 A.3d 587 (2018);
Macchietto v. Keggi, supra, 103 Conn. App. 773. As we
explained in part I of this opinion, our review of this
claim is plenary. See also Snell v. Norwalk Yellow Cab,
Inc., 332 Conn. 720, 763, 212 A.3d 646 (2019) (where
trial court’s decision on motion to set aside verdict is
premised on question of law, appellate review is ple-
nary).
A detailed discussion of the causation evidence
adduced during the trial regarding each of the defen-
dant’s nurses is necessary. Korsten testified that he was
familiar with the administration of enemas as part of
his medical practice. He also taught the proper adminis-
tration of enemas to other medical professionals. After
reviewing the relevant medical records, he reached the
opinion that the perforation sustained by Bruce Cock-
ayne was caused by an enema that had been adminis-
tered improperly. During his cross-examination, Kors-
ten indicated that either Kaine or Lapaan used excessive
force, without realizing it, when administering the
enema to Bruce Cockayne during his hospitalization.
When asked which nurse ‘‘did not violate their nursing
standard of care,’’ he responded: ‘‘I can’t tell you. I don’t
know.’’ The defendant’s counsel then inquired as to
which nurse caused the perforation and, thus, violated
the standard of care. Korsten responded: ‘‘It would be
the nurse who said this was the first unsupervised
administration of an enema that she had ever done.
That would be the most likely person.’’ Korsten then
stated that Kaine, who administered enemas on Febru-
ary 11 and 12, 2014, was more likely than not to have
violated the standard of care based on her inexperience.
Although Korsten identified Kaine as being the person
most likely to have caused the perforation, he could
not state on which date it had occurred. When asked
if he thought that Lapaan was not negligent and did
not cause the perforation, Korsten responded: ‘‘Just—
I previously said that, I believe, that I thought it was
Kaine, not Lapaan.’’
During redirect examination, the following colloquy
occurred between the plaintiffs’ counsel and Korsten:
‘‘Q. And [the defendant’s counsel] asked you to iden-
tify which nurse you think was the most probable per-
son to do it. That was the first time that question was
ever asked of you, I assume.
‘‘A. Yes.
‘‘Q. Your opinion has been that one or both of them
did it or maybe both of them did it themselves, but
you feel now after reviewing that probably the most
probable person is Jordan Kaine.
‘‘A. Yes.
‘‘Q. You’re not excluding Ms. Lapaan, but it’s most
likely Jordan Kaine.
‘‘A. If I had to choose, it was Jordan Kaine.
‘‘Q. Regardless, it was one of the [defendant’s]
employees . . . .
‘‘A. Yes.’’
During recross-examination, Korsten again stated
that Kaine was more likely than Lapaan to have caused
the perforation. Korsten, however, noted that it was not
impossible for Lapaan to have caused the perforation.
Mohammed testified that she instructed other nurses
on the proper administration of enemas. During cross-
examination, she stated that she could not determine
which nurse, Kaine or Lapaan, had administered the
enema negligently and which had not. During further
cross-examination, and in consideration of her deposi-
tion statements, Mohammed indicated that the Febru-
ary 13, 2014 enema, which was administered by Lapaan,
caused the perforation. She later opined that Kaine’s
administrations of enemas on February 11 and 12, 2014,
‘‘contributed’’ to the perforation. At this point, the plain-
tiffs’ counsel objected on the basis that Mohammed had
not been disclosed as a causation expert. The court
overruled this objection. Mohammed then explained
that she could not state that Lapaan bore the sole
responsibility for causing the perforation, rather the
cumulative effect of three enemas on consecutive days
caused the perforation to occur on February 13, 2014.
We conclude that the plaintiffs presented sufficient
evidence for the jury to find that Lapaan caused the
perforation. Korsten testified that the administration of
an enema with excessive force caused the perforation.
The plaintiffs presented evidence that Lapaan, in the
course of her employment duties and care of Bruce
Cockayne, administered an enema on February 13,
2014, during the time frame in which the perforation
likely occurred. Korsten initially testified regarding his
uncertainty as to which nurse, Kaine or Lapaan, caused
the perforation. On specific cross-examination, how-
ever, he stated that Kaine was more likely to have
caused the perforation. He later clarified, however, that
he had not previously considered which nurse was more
likely responsible and that, regardless, one of the nurses
had caused the perforation. Viewing the totality of his
testimony, we conclude that the jury could have deter-
mined that, in Korsten’s view, Kaine was more likely
to have caused the perforation, but he did not exclude
Lapaan. Moreover, the jury was not required to accept
any specific portion of Korsten’s testimony. Shelnitz v.
Greenberg, 200 Conn. 58, 68, 509 A.2d 1023 (1986) (jury
was free to accept or reject expert opinion in whole or
in part); Marchell v. Whelchel, 66 Conn. App. 574, 583,
785 A.2d 253 (2001) (same); see also Fajardo v. Boston
Scientific Corp., Conn. , , A.3d (2021)
(Ecker, J., concurring in part and dissenting in part).
The jury, therefore, could have credited his testimony
that the administration of an enema by Lapaan caused
the perforation in this case and that such perforation
was the result of negligence.
Mohammed’s testimony also provided a sufficient
basis for the jury to find that Lapaan caused the perfora-
tion. First, we note that, although the plaintiffs had
disclosed her as an expert on the applicable standard
of care for nursing, she testified at trial, in response to
questions from the defendant’s counsel, on the issue
of causation. The defendant’s counsel, during cross-
examination, referred to Mohammed’s deposition
where she had opined that Kaine or Lapaan used an
improper technique. The defendant’s counsel then ques-
tioned Mohammed as to which nurse had been negligent
and specifically inquired as to which administration of
an enema had caused the perforation. Next, the defen-
dant’s counsel, again referring to her deposition, asked
Mohammed about her opinion that the February 13,
2014 enema administration, performed by Lapaan,
caused the perforation. Mohammed testified that she
still held that opinion. After further questioning by the
defendant’s counsel, Mohammed ‘‘clarif[ied]’’ her testi-
mony and stated that she could not determine which
individual nurse ‘‘solely’’ caused the perforation.
As we previously stated, the jury was free to credit
or reject any specific part of an expert’s testimony.
Procaccini v. Lawrence + Memorial Hospital, Inc.,
supra, 175 Conn. App. 721; see also Shelnitz v.
Greenberg, supra, 200 Conn. 68. Specifically, it could
have credited Mohammed’s opinion, as set forth in her
deposition and in court, that Lapaan caused the perfora-
tion.
In its appellate brief, the defendant notes that the
plaintiffs did not disclose Mohammed as a causation
expert.37 It was, however, the defendant that raised the
subject of causation with her during cross-examination.
Having initiated the topic with Mohammed during the
trial, the defendant cannot now change course and
claim that such testimony was improper. ‘‘Our rules of
procedure do not allow a [party] to pursue one course
of action at trial and later, on appeal, argue that a path
he rejected should now be open to him. . . . To rule
otherwise would permit trial by ambuscade.’’ (Internal
quotation marks omitted.) Ferri v. Powell-Ferri, 317
Conn. 223, 236–37, 116 A.3d 297 (2015); see also Szy-
monik v. Szymonik, 167 Conn. App. 641, 650, 144 A.3d
457 (party cannot adopt one position at trial and then
different one on appeal), cert. denied, 323 Conn. 931,
150 A.3d 232 (2016).
On the basis of our review of all testimony on the
issue of causation, we conclude that the plaintiffs pre-
sented sufficient expert evidence for the jury to find
that Lapaan caused the perforation of Bruce Cockayne’s
rectum. In considering the testimony from the plaintiffs’
experts, the jury reasonably could have determined that
there was a reasonable probability that Lapaan’s con-
duct was a substantial factor in causing the perforation.
On the basis of this evidence, the court properly denied
the motion to set aside the verdict, and the defendant’s
claim that the jury improperly was permitted to con-
sider a theory of negligence unsupported by the evi-
dence must fail.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In their complaint, the plaintiffs named both The Bristol Hospital Incorpo-
rated and Bristol Hospital and Health Care Group, Inc., as defendants. During
its charge to the jury, the trial court explained: ‘‘While these defendants are
separate legal entities, they shall be treated as one and the same for purposes
of this trial. As I continue with these instructions, I will refer to both
defendants collectively as the defendant or Bristol Hospital.’’ For the sake
of consistency, we will follow the approach taken by the trial court and
refer to the two entities named in the plaintiffs’ complaint as ‘‘the defendant’’
in this opinion.
2
The complaint set forth the following: ‘‘[Bruce Cockayne’s] injuries,
losses and damages were proximately caused by the carelessness and negli-
gence of [the defendant], by and through its agents, servants or employee[s],
in one or more of the following ways, in that they:
‘‘a. perforated [Bruce Cockayne’s] rectum during the course of enema
administration when, in the exercise of reasonable care, [his] rectum should
not have been perforated;
‘‘b. permitted an agent, servant or employee of the defendant to perform
the administration of an enema when said person was inadequately trained
and/or lacked the experience and knowledge to do so;
‘‘c. permitted an agent, servant or employee of the defendant to perform
the administration of an enema when the use of an enema was contraindi-
cated by the condition of [Bruce Cockayne’s] rectum;
‘‘d. failed to discover in a timely manner the perforated rectum;
‘‘e. failed to discover and repair the perforation in a timely manner;
‘‘f. failed to appreciate the signs and symptoms of a perforated rectum
during the course of [Bruce Cockayne’s] admission; and/or
‘‘g. failed to take appropriate measures in light of the signs and symptoms
of a perforated rectum.’’
3
See, e.g., Ashmore v. Hartford Hospital, 331 Conn. 777, 791–93, 208 A.3d
256 (2019) (loss of consortium claim involves recognition of intangible
elements of domestic relations, such as companionship and affection); Hop-
son v. St. Mary’s Hospital, 176 Conn. 485, 495–96, 408 A.2d 260 (1979)
(recognizing claim of married person whose spouse has been injured by
negligence of third party).
4
The evidence at trial established that Rowasa enemas are used to adminis-
ter a medication, mesalamine, to treat inflammation in patients with Crohn’s
disease or inflammatory bowel disease.
5
Before the plaintiffs called their first witness, the parties stipulated that
the defendant employed Lapaan and Kaine, the nurses involved in the case,
and that they acted within the scope of their employment at all relevant
times. The court iterated this stipulation during its charge to the jury. See,
e.g., Krause v. Bridgeport Hospital, 169 Conn. 1, 4, 362 A.2d 802 (1975);
Procaccini v. Lawrence + Memorial Hospital, Inc., 175 Conn. App. 692,
703 n.4, 168 A.3d 538, cert. denied, 327 Conn. 960, 172 A.3d 801 (2017).
6
A brief description of the relevant anatomy is helpful. The sigmoid colon
connects to the rectum at the rectosigmoid junction and the rectum connects
to the anal canal at the anorectal line. The anal canal terminates at the anal
orifice, where fecal matter is expelled from the body.
7
An ileostomy has been defined as follows: ‘‘Establishment of a fistula
through which the ileum [the longest portion of the small intestine] dis-
charges directly to the outside of the body.’’ Stedman’s Medical Dictionary
(27th Ed. 2000) p. 874.
8
For example, Kristy Thurston, a board certified colorectal surgeon at
Hartford Hospital, testified that, following Bruce Cockayne’s transfer to
Hartford Hospital, she and her colleagues placed a drain in the infected
area and performed a limited colonoscopy to identify any rectal pathology
contributing to that infection. Thurston also confirmed the presence of the
perforation in Bruce Cockayne’s rectum. She described his condition as a
‘‘life-threatening situation . . . .’’ Following his transfer to Gaylord Hospital
for rehabilitation and wound care, Bruce Cockayne returned to Hartford
Hospital for two additional surgeries. After a period of recovery, Thurston
reversed the ileostomy on March 25, 2015.
9
‘‘Vicarious liability is based on a relationship between the parties, irre-
spective of participation, either by act or omission, of the one vicariously
liable, under which it has been determined as a matter of policy that one
person should be liable for the act of the other. Its true basis is largely one
of public or social policy under which it has been determined that, irrespec-
tive of fault, a party should be held to respond for the acts of another.’’
(Internal quotation marks omitted.) Alvarez v. New Haven Register, Inc.,
249 Conn. 709, 720, 735 A.2d 306 (1999).
In the present case, the vicarious liability of the defendant was premised
on the doctrine of respondeat superior. See, e.g., Ali v. Community Health
Care Plan, Inc., 261 Conn. 143, 151, 801 A.2d 775 (2002); 2 National Place,
LLC v. Reiner, 152 Conn. App. 544, 557–58, 99 A.3d 1171, cert. denied,
314 Conn. 939, 102 A.3d 1112 (2014). ‘‘[T]he theory of respondeat superior
attaches liability to a principal merely because the agent committed a tort
while acting within the scope of his employment.’’ Larsen Chelsey Realty
Co. v. Larsen, 232 Conn. 480, 505, 656 A.2d 1009 (1995).
10
See, e.g., Procaccini v. Lawrence + Memorial Hospital, Inc., 175 Conn.
App. 692, 704, 168 A.3d 538, cert. denied, 327 Conn. 960, 172 A.3d 801 (2017).
11
It bears noting that our Supreme Court has instructed that, in this
context, ‘‘[a] party challenging the validity of the jury’s verdict on grounds
that there was insufficient evidence to support such a result carries a difficult
burden. In reviewing the soundness of a jury’s verdict, we construe the
evidence in the light most favorable to sustaining the verdict. . . . We do
not ask whether we would have reached the same result. [R]ather, we must
determine . . . whether the totality of the evidence, including reasonable
inferences therefrom, supports the jury’s verdict . . . . If the jury could
reasonably have reached its conclusion, the verdict must stand.’’ (Internal
quotation marks omitted.) Gagliano v. Advanced Specialty Care, P.C., 329
Conn. 745, 754, 189 A.3d 587 (2018).
12
Pursuant to Practice Book § 13-4, the plaintiffs disclosed Mark Korsten,
a physician board certified in internal medicine and gastroenterology, Bag-
dasarian, a physician board certified in surgery, and Natalie Mohammed, a
registered nurse, as expert witnesses.
13
As is frequently the case in medical malpractice actions, the defendant’s
experts disagreed with the opinions of the plaintiffs’ expert, including on
the matters relating to causation. See, e.g., Grondin v. Curi, 262 Conn. 637,
657 n.20, 817 A.2d 61 (2003); Gilbert v. Middlesex Hospital, 58 Conn. App.
731, 737, 755 A.2d 903 (2000). We have noted that ‘‘[c]onflicting expert
testimony does not necessarily equate to insufficient evidence.’’ (Internal
quotation marks omitted.) Dallaire v. Hsu, 130 Conn. App. 599, 603, 23 A.3d
729 (2011). Furthermore, ‘‘[t]he existence of conflicting evidence limits the
court’s authority to overturn a jury verdict. The jury is entrusted with the
choice of which evidence is more credible and what effect it is to be given.’’
(Internal quotation marks omitted.) Barrows v. J.C. Penney Co., 58 Conn.
App. 225, 230, 753 A.2d 404, cert. denied, 254 Conn. 925, 761 A.2d 751 (2000).
14
Our law has recognized that, under some circumstances, a defendant
medical provider can provide the evidence necessary with respect to the
elements of a medical malpractice claim. In Console v. Nickou, supra, 156
Conn. 273–74, the defendant physician testified that, in the exercise of
reasonable standards of care and skill, a suture needle should not be left
in a patient’s body in the course of repairing an episiotomy and such an
occurrence would constitute a violation of the standard of care. Our Supreme
Court concluded that the defendant himself, a qualified expert, could provide
the necessary evidence to support the verdict in favor of the plaintiff with
respect to her medical malpractice claim. Id., 274; see also Allen v. Giuliano,
144 Conn. 573, 574–75, 135 A.2d 904 (1957) (defendant physician admitted
during cross-examination that cast cutter, if used properly, should not have
caused lacerations on plaintiff’s leg).
15
Bagdasarian had indicated in his postoperative notes that ‘‘it is presumed
that [Bruce Cockayne] may have had anal rectal trauma related to a traumatic
enema insertion causing the bleeding episode [two] days ago, and perforation
into the extraperitoneal space.’’
16
Korsten defined gastroenterology as ‘‘the diagnosis and treatment of
disorders of the gastrointestinal tract that can extend from the mouth to
the anus and all organs that supply additional backup to the gastrointestinal
tracts, such as the pancreas and the liver.’’
17
The plaintiffs’ expert on the nursing standard of care, Natalie Moham-
med, also testified that she was aware of rectal perforations that occurred
from enema administration during her career.
18
One of the defendant’s expert witnesses, Tricia Marie Ramsdell, a regis-
tered nurse, testified that, during her deposition, she had identified four
possible causes for the perforation: first, the enema administrations per-
formed by Kaine and Lapaan; second, the enema administration performed
by Marion Cockayne; third, the colonoscopy performed in January, 2014; and
fourth, a spontaneous tearing as a result of Crohn’s disease. Joel Weinstock,
the defendant’s expert gastroenterologist, and Walter Longo, a colon and
rectal surgeon, also identified similar concerns during their depositions.
Both Weinstock and Longo opined that the likely causes for perforation were
the colonoscopy or a spontaneous rupture resulting from Crohn’s disease.
19
Our Supreme Court has noted that, ‘‘in certain cases, it may be impossible
to determine the precise cause of the injury even after extensive discovery.
In those cases, the plaintiff’s expert nevertheless may be able to opine, to
a reasonable degree of medical certainty, that the injury would not have
occurred in the absence of medical negligence. As a general matter, there
is no reason why that opinion evidence would not be sufficient to survive
a motion for a directed verdict.’’ Wilcox v. Schwartz, 303 Conn. 630, 650,
37 A.3d 133 (2012).
20
Korsten described Crohn’s disease as an inflammatory bowel disease
that presented in a ‘‘spotty’’ nature, as opposed to ulcerative colitis, which
affects all parts of the colon.
21
Natalie Mohammed, a registered nurse, also testified that the Rowasa
enema, if inserted improperly, could have reached the posterior wall of the
rectum to cause the perforation suffered by Bruce Cockayne.
22
The defendant further contends that the jury could not use the state-
ments of Bruce Cockayne’s treating physicians as a basis to find that the
Rowasa enema could have perforated his rectum and that the jury could
not use the location of the perforation as a basis to find causation. As a
result of our conclusions regarding the sufficiency of the other evidence,
we need not address these contentions.
23
As we noted in Procaccini v. Lawrence + Memorial Hospital, Inc.,
supra, 175 Conn. App. 692, ‘‘[a] party challenging the validity of the jury’s
verdict on grounds that there was insufficient evidence to support such a
result carries a difficult burden. In reviewing the soundness of a jury’s
verdict, we construe the evidence in the light most favorable to sustaining
the verdict. . . . Furthermore, it is not the function of this court to sit as
the seventh juror when we review the sufficiency of the evidence . . .
rather, we must determine . . . whether the totality of the evidence, includ-
ing reasonable inferences therefrom, supports the jury’s verdict . . . . [I]f
the jury could reasonably have reached its conclusion, the verdict must
stand . . . .’’ (Internal quotation marks omitted.) Id., 716.
24
Specifically, our Supreme Court stated: ‘‘Therefore, an expert’s opinion
is not rendered inadmissible merely because the opinion is based on inadmis-
sible hearsay, so long as the opinion is based on trustworthy information
and the expert had sufficient experience to evaluate that information so as
to come to a conclusion which the trial court might well hold worthy of
consideration by the jury. . . . The fact that a physician’s report includes
hearsay statements, whether from a patient or someone else, would not bar
the report’s admission on that basis unless those statements were being
offered for substantive purposes, i.e., the truth of the matter asserted.’’
(Citation omitted; footnote omitted; internal quotation marks omitted.)
Milliun v. New Milford Hospital, supra, 310 Conn. 727–28.
25
The defendant devoted a portion of its appellate brief and oral argument
to the doctrine of res ipsa loquitur. It posited that the trial court ‘‘essentially
relied’’ on this doctrine in determining that the plaintiffs had met their
burden of proving negligent conduct by the nurses. The defendant argued:
‘‘The trial court’s reasoning, like Dr. Korsten’s opinion, appears to be based
on a res ipsa loquitur theory: the very fact that there was a perforation
suggests that ‘something was done improperly.’ ’’ The defendant further
contends that the use of this doctrine was improper as a result of the
plaintiffs’ failure to plead this theory of negligence specifically.
‘‘The doctrine of res ipsa loquitur, literally the thing speaks for itself,
permits a jury to infer negligence when no direct evidence of negligence
has been introduced. . . . The doctrine of res ipsa loquitur applies only
when two prerequisites are satisfied. First, the situation, condition or appara-
tus causing the injury must be such that in the ordinary course of events
no injury would have occurred unless someone had been negligent. Second,
at the time of the injury, both inspection and operation must have been in
the control of the party charged with neglect. . . . When both of these
prerequisites are satisfied, a fact finder properly may conclude that it is
more likely than not that the injury in question was caused by the defendant’s
negligence.’’ (Internal quotation marks omitted.) Boone v. William W. Backus
Hospital, 272 Conn. 551, 575–76, 864 A.2d 1 (2005).
We agree with the defendant that res ipsa loquitur must be pleaded specifi-
cally if a plaintiff intends to use that theory of negligence. See, e.g., White
v. Mazda Motor of America, Inc., 313 Conn. 610, 626–27, 99 A.3d 1079 (2014).
We disagree, however, with the defendant that this doctrine was relied on
by the plaintiffs or the trial court. As we have explained, the plaintiffs
presented testimony from expert witnesses to establish causation, which
included the use of a differential diagnosis. There was expert testimony
presented to the jury ruling out certain events as having caused the perfora-
tion and identifying the specific act that did cause it. The negligence, in this
case, was not inferred in the absence of direct evidence. Accordingly, we
conclude that the defendant’s contention that the plaintiffs could prevail
only by relying on res ipsa loquitur, which was not part of this case, is
unavailing.
26
Questions one and two of the defendant’s proposed jury interrogatories
provided: ‘‘[1] Did the plaintiffs . . . prove by a fair preponderance of the
evidence that Jordan Kaine, RN (an employee of [the defendant]) deviated
from the prevailing standard of care for registered nurses in 2014 in her
care and treatment of Bruce Cockayne? . . . If the answer to Question 1
is ‘no,’ then skip Question 2 and continue to Question 3. . . . [2] Did the
plaintiffs . . . prove by a fair preponderance of the evidence that Jordan
Kaine’s deviation from the prevailing standard of care caused the rectal
perforation? . . . If the answer to Question 2 is ‘no,’ continue to Question
3. If the answers to Questions 1 and 2 are ‘yes,’ complete the plaintiff’s
verdict form.’’
27
Questions three and four of the defendant’s proposed jury interrogato-
ries provided: ‘‘[3] Did the plaintiffs . . . prove by a fair preponderance of
the evidence that Elaine Lapaan, RN (an employee of [the defendant]) devi-
ated from the prevailing standard of care for registered nurses in 2014 in
her care and treatment of Bruce Cockayne? . . . If the answers to Questions
1 and 3 are ‘no,’ then enter a verdict in favor of the defendant . . . on the
defendant’s verdict form and skip Question 4. If the answer to Question 3
is ‘yes,’ continue to Question 4. . . . [4] Did the plaintiffs . . . prove by a
fair preponderance of the evidence that Elaine Lapaan’s deviation from the
prevailing standard of care caused the rectal perforation? . . . If the answer
to Question 4 is ‘no,’ then enter a verdict in favor the defendant . . . on
the defendant’s verdict form. If the answer to Question [4] is ‘yes,’ complete
the plaintiff’s verdict form.’’
28
‘‘In the absence of a challenge to the trial court’s charge to the jury
. . . that charge becomes the law of the case. . . . The sufficiency of the
evidence must be assessed in light of that law of the case.’’ (Citation omitted.)
Gagliano v. Advanced Specialty Care, P.C., 329 Conn. 745, 755, 189 A.3d
587 (2018).
29
The plaintiffs’ counsel also submitted proposed interrogatories but sub-
sequently noted his agreement with the court’s intention to not provide any
interrogatories to the jury.
30
Specifically, the defendant’s counsel stated: ‘‘And so the interrogatories
make it clear to the jury, you have to decide whether it’s been proven by
a preponderance of the evidence that Nurse Lapaan was negligent, and then
separately answer whether the plaintiff has established by a preponderance
of the evidence whether Nurse Kaine was negligent. And if that isn’t provided
to the jury, the danger is that they’ll—they’ll accept this theory from the
plaintiffs’ experts that it doesn’t really matter if you don’t know which one
of them was negligent.’’
31
‘‘The trial court has broad discretion to regulate the manner in which
interrogatories are presented to the jury, as well as their form and content.’’
(Internal quotation marks omitted.) Viera v. Cohen, 283 Conn. 412, 450, 927
A.2d 843 (2007); see also Practice Book § 16-18 (judicial authority may
submit written interrogatories to jury); Earlington v. Anastasi, 293 Conn.
194, 200, 976 A.2d 689 (2009) (it is within reasonable discretion of presiding
judge to require or to refuse to require jury to answer pertinent interrogato-
ries, as proper administration of justice may require).
32
The following examples from the jury instructions provide the relevant
context for the court’s ruling on the defendant’s motion to submit interroga-
tories. ‘‘In this case, the plaintiffs claim that Bruce Cockayne was injured
through the negligence of Nurses Jordan Kaine and/or Elaine Lapaan,
both of whom were employees of [the defendant]. . . . In order to establish
liability, the plaintiffs must prove by a fair preponderance of the evidence
that the conduct of Jordan Kaine and/or Elaine Lapaan represented a
breach of the prevailing professional standard of care that I have just
described.
***
‘‘In their complaint, the plaintiffs allege that [the defendant’s] employees,
Nurses Kaine and/or Lapaan, breached the standard of care applicable to
registered nurses, and were, therefore, negligent in the care and treatment
rendered to Bruce Cockayne and that either one or both of them perforated
Bruce Cockayne’s rectum during the course of an enema treatment. . . .
The plaintiffs must prove that any injury or harm for which they seek
compensation from [the defendant] was caused by Nurses Kaine and/or
Lapaan.’’ (Emphasis added.)
33
See General Statutes § 52-228b (‘‘[n]o verdict in any civil action involving
a claim for money damages may be set aside except on written motion by
a party to the action, stating the reasons relied upon in its support, filed and
heard after notice to the adverse party according to the rules of the court’’).
34
‘‘The general verdict rule operates to prevent an appellate court from
disturbing a verdict that may have been reached under a cloud of error, but
is nonetheless valid because the jury may have taken an untainted route in
reaching its verdict. . . . Under the general verdict rule, if a jury [returns]
a general verdict for one party, and [the party raising a claim of error on
appeal did not request] interrogatories, an appellate court will presume that
the jury found every issue in favor of the prevailing party. . . . Thus, in a
case in which the general verdict rule operates, if any ground for the verdict
is proper, the verdict must stand; only if every ground is improper does the
verdict fall. . . . A party desiring to avoid the effects of the general verdict
rule may elicit the specific grounds for the verdict by submitting interrogato-
ries to the jury. Alternatively, if the action is in separate counts, a party
may seek separate verdicts on each of the counts. . . .
‘‘Our Supreme Court has held that the general verdict rule applies to the
following five situations: (1) denial of separate counts of a complaint; (2)
denial of separate defenses pleaded as such; (3) denial of separate legal
theories of recovery or defense pleaded in one count or defense, as the
case may be; (4) denial of a complaint and pleading of a special defense;
and (5) denial of a specific defense, raised under a general denial, that had
been asserted as the case was tried but that should have been specially
pleaded.’’ (Citations omitted; internal quotation marks omitted.) Green v.
H.N.S. Management Co., 91 Conn. App. 751, 754–55, 881 A.2d 1072 (2005),
cert. denied, 277 Conn. 909, 894 A.2d 990 (2006). Additionally, the general
verdict rule had been held to be inapplicable when the complaint contains
several specifications of negligence of an interlocking nature that support
only one theory of recovery and it would be too difficult to consider them
separately. Id., 755–57; see also Rodriguez v. State, 155 Conn. App. 462, 486
n.16, 110 A.3d 467 (decisions of our Supreme Court repeatedly have held
that ‘‘general verdict rule does not apply to different specifications of negli-
gence’’), cert. granted, 316 Conn. 916, 113 A.3d 71 (2015) (appeal withdrawn
December 15, 2015).
35
In further support of its reasoning, the trial court expressly stated that
the plaintiffs’ theory of the case was that either one, or both, of the nurses
improperly administered the enema. ‘‘The plaintiffs’ position throughout the
trial was that since this action was only brought against the nurses’ employer,
and it was stipulated that both nurses were acting within the scope of
their employment, it did not matter which nurse caused Bruce Cockayne’s
injuries because vicarious liability would attach in either case.’’ (Empha-
sis added.)
We note that the defendant’s proposed interrogatories would have
required the members of the jury to agree unanimously on which nurse, Kaine
or Lapaan, had violated the standard of care and caused Bruce Cockayne’s
injuries. Such a requirement would have elevated the plaintiffs’ burden to
a standard not required by our jurisprudence.
To be sure, ‘‘[i]n this state it is required that jury verdicts be unanimous,
requiring each juror to decide the case individually after impartial consider-
ation of the evidence with the other jurors.’’ (Internal quotation marks
omitted.) Monti v. Wenkert, 287 Conn. 101, 114, 947 A.2d 261 (2008); see
also Practice Book § 16-30. This unanimity requirement, as the trial court
implicitly recognized, did not extend to a finding of which nurse bore the
ultimate responsibility for the perforation. In other words, the jurors were
not required to unanimously agree that it was either Kaine, Lapaan, or both,
who had caused the perforation. The members of the jury simply needed
to be in agreement that at least one of the nurses violated the standard
of care and caused the injuries to Bruce Cockayne to find the defendant
vicariously liable.
36
We are mindful that ‘‘[t]he trial court should not submit an issue to the
jury that is unsupported by the facts in evidence.’’ (Internal quotation marks
omitted.) Gombos v. Aranoff, 53 Conn. App. 347, 355, 730 A.2d 98 (1999);
see also Wager v. Moore, 193 Conn. App. 608, 624, 220 A.3d 48 (2019). In
light of this authority, if the pathway to a plaintiff’s verdict was not supported
by any evidence, a defendant would have a stronger appellate claim.
37
In their disclosure of Mohammed as an expert witness made pursuant
to Practice Book § 13-4, the plaintiffs indicated that she would ‘‘testify as
to her review and analysis of the medical records of Bruce Cockayne, the
depositions of the parties and witnesses and her opinions whether the
[defendant] deviated from the standard of care and the results of said
deviations.’’