Arroyo v. University of Connecticut Health Center

 JOSE ARROYO ET AL. v. UNIVERSITY
OF CONNECTICUT HEALTH
CENTER ET AL.
(AC 38701)
Alvord, Prescott and Pellegrino, Js.
Syllabus
The plaintiffs sought to recover damages from the defendant health center
and the defendant state of Connecticut for medical malpractice for
injuries sustained by the plaintiff A during a vasectomy. The plaintiffs
claimed that the urologist employed by the defendants who performed
the surgery, P, negligently injured A’s testicular artery, resulting in the
removal of one of his testicles. Following a trial to the court, the trial
court rendered judgment for the plaintiffs and the defendants appealed
to this court. Prior to bringing this action, the plaintiffs filed a notice
of claim with the Claims Commissioner pursuant to statute (§ 4-147),
which was accompanied by a certificate of good faith, as required by
statute (§ 4-160 [b]) in medical malpractice actions against the state,
and the commissioner subsequently granted the plaintiffs permission to
bring an action against the defendants. Held:
1. The defendants could not prevail on their claim that because the trial court
rendered judgment for the plaintiffs on a theory of liability materially
different from that which was alleged in their notice of claim, and
for which they had received a waiver of sovereign immunity from the
commissioner, the court was barred, under the doctrine of sovereign
immunity, from rendering judgment for the plaintiffs on that theory of
liability: given that the plaintiffs properly filed a timely notice with
the commissioner seeking permission to pursue a medical malpractice
action against the defendants and attached a good faith certificate to
the notice, the commissioner, pursuant to § 4-160 (b), was required to
grant the plaintiffs permission to bring their action, regardless of how
precisely the plaintiffs worded the basis of their medical malpractice
claim in their notice, and the fact that the notice of claim included more
details, which were not in conflict with the theory pursued at trial, was
not fatal to the plaintiffs’ case; moreover, § 4-147 (2) expressly provides
that the claim in the notice need not be particularized and requires only
that the notice contain a concise statement of the basis of the claim,
and the defendants failed to demonstrate that the basis of the claim in
the notice filed with the commissioner was materially different from
the basis of the plaintiffs’ claim at trial.
2. This court declined to review the defendants’ claim, raised for the first
time on appeal, that the trial court improperly awarded damages to the
plaintiffs on a theory of liability that was pursued at trial but was not
alleged in their complaint, the defendants having waived their objection
to any variance between the pleadings and the evidence by failing to
object accordingly at trial.
3. The defendants’ claim that the plaintiffs presented insufficient evidence
on the issue of causation was unavailing; the testimony of the plaintiffs’
expert, B, on causation relied on substantial evidence that was largely
unchallenged by the defendants, B supported his opinion on causation
through a method of diagnosis that involved 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, and established the causal
relation between A’s injury and its later physical effects, and the court,
as the trier of fact, was free to credit B’s explanation for the cause of
A’s injury over that of the defendants’ expert, and properly determined
that the plaintiffs had satisfied their burden of proving that P injured A’s
testicular artery during the vasectomy and caused necrosis of A’s testicle.
Argued May 16—officially released August 15, 2017
Procedural History
Action to recover damages for, inter alia, the defen-
dants’ medical malpractice, and for other relief, brought
to the Superior Court in the judicial district of Hartford
and tried to the court, Scholl, J.; judgment for the plain-
tiffs; thereafter, the court granted the defendants’
motion for a collateral source reduction, and the defen-
dants appealed to this court. Affirmed.
Michael G. Rigg, for the appellants (defendants).
Michael J. Walsh, for the appellees (plaintiffs).
Opinion
PRESCOTT, J. In this action seeking damages for
medical malpractice relating to a vasectomy, the defen-
dants, the University of Connecticut Health Center
(health center) and the state of Connecticut, appeal,
following a bench trial, from the judgment of the trial
court rendered in favor of the plaintiffs, Jose Arroyo
and Marie Arroyo,1 in the amount of $386,249.81.2 The
defendants claim that the court improperly (1) rendered
judgment on a cause of action for which the plaintiffs
had not obtained a waiver of sovereign immunity from
the state’s Claims Commissioner (commissioner),3 (2)
awarded damages on a theory of liability that was not
alleged in the plaintiffs’ Superior Court complaint, and
(3) concluded that the plaintiffs had satisfied their bur-
den of proving that the defendants’ employee, Peter
Albertsen, a urologist, had negligently injured Arroyo’s
testicular artery. We disagree with the defendants’
claims and, accordingly, affirm the judgment of the
trial court.
The following facts, as found by the court, and proce-
dural history are relevant to our resolution of the defen-
dants’ claims. On April 1, 2013, Arroyo underwent a
vasectomy performed by Dr. Albertsen at the health
center. Immediately after the procedure, Arroyo suf-
fered pain that continued, unabated, for several days.
Subsequently, on April 4, 2013, he went to the emer-
gency room at Saint Francis Hospital and Medical Cen-
ter (hospital), where it was discovered that his left
testicle was necrotic4 because of a lack of blood flow
through the testicular artery. This required Arroyo to
undergo an orchiectomy, or surgical removal of the
testicle, that same day. The surgery was performed by
Dr. Marlene A. Murphy-Setzko, a urologist at the hospi-
tal. This procedure resulted in discomfort and pain for
Arroyo from protruding sutures and infection, which,
in turn, required him to undergo further treatments over
a period of five months.
Sovereign immunity generally prevents a litigant from
suing the state for money damages without its consent.
See Morneau v. State, 150 Conn. App. 237, 246, 90 A.3d
1003, cert. denied, 312 Conn. 926, 95 A.3d 522 (2014).
Thus, in order to obtain permission to sue the defen-
dants for money damages, the plaintiffs filed a notice
of claim on September 13, 2013, with the commissioner
pursuant to General Statutes § 4-147.5 The notice was
accompanied by a certificate of good faith, as required
in medical malpractice claims brought against the state
pursuant to General Statutes § 4-160 (b),6 which pro-
vides in relevant part: ‘‘In any claim alleging malpractice
against the state, a state hospital or against a physician,
surgeon . . . or other licensed health care provider
employed by the state, the attorney or party filing the
claim may submit a certificate of good faith to the
Claims Commissioner in accordance with section 52-
190a. If such a certificate is submitted, the Claims Com-
missioner shall authorize suit against the state on
such claim.’’
In their notice of claim filed with the commissioner,
the plaintiffs alleged that ‘‘[d]uring the procedure Dr.
Albertsen failed to identify, dissect and ligate the vas
deferens, but instead he incorrectly dissected and
ligated surrounding vascular structures thereby depriv-
ing, restricting and severing blood flow to [Arroyo’s]
left testicle.’’ In an order dated November 6, 2013, the
commissioner granted the plaintiffs permission to sue
the defendants.
Subsequently, the plaintiffs commenced the present
action against the defendants in Superior Court on Janu-
ary 29, 2014. The complaint, which was accompanied
by a certificate of good faith as required by General
Statutes § 52-190a,7 contained two counts, the first
sounding in medical malpractice on behalf of Arroyo
and the second sounding in loss of consortium on behalf
of Marie.
Count one mirrored the language used in the notice
of claim filed with the commissioner, alleging that ‘‘Dr.
Albertsen failed to identify, dissect and ligate the vas
deferens, but instead he incorrectly dissected and
ligated surrounding vascular structures, thereby depriv-
ing, restricting and severing blood flow to the plaintiff’s
left testicle.’’ It also alleged that Dr. Albertsen was negli-
gent in one or more of six ways, those being that he
failed ‘‘[1] to properly identify the anatomy of the testi-
cle, both before and during the procedure, by all means
available to him, including palpation and visualization,
to ensure that he adequately identified the spermatic
cord and the vas deferens prior to his attempt to dissect
the vas deferens . . . [2] to properly isolate and free
the vas deferens from the surrounding anatomical struc-
tures prior to attempts to dissect the vas deferens . . .
[3] to properly confirm that he had, in fact, identified
the vas deferens by all means available to him, including
palpation and visualization, before his attempts to dis-
sect the vas deferens . . . [4] to dissect and ligate the
vas deferens, and instead he incorrectly dissected and
ligated surrounding blood vessels and vascular struc-
tures, thereby depriving, restricting and severing blood
flow to the left testicle . . . [5] to timely and properly
realize that he had, in fact, failed to dissect the vas
deferens, but instead had dissected vascular structures
in the testicle, and proceeded to conclude the procedure
and discharge the patient from the facility; and . . .
[6] to properly respond to and investigate the patient’s
repeated complaints of unusual and inordinate pain,
both during and following the procedure in question,
which investigation in all likelihood would have led him
to the realization that he had failed to sever and dissect
the appropriate vas deferens and instead severed and
dissected vascular structures necessary for the contin-
ued viability of the left testicle.’’
The case progressed to pretrial discovery. During this
time, the plaintiffs disclosed Dr. Michael Brodherson
as their expert witness, and the defendants disclosed
Dr. Wayne Glazier as their expert witness. The parties
deposed both experts prior to trial.
Thereafter, on November 4, 2015, the trial com-
menced. The court heard testimony from several wit-
nesses, including Dr. Albertsen, Dr. Brodherson, and
Dr. Glazier. The evidence showed that during Arroyo’s
vasectomy, Dr. Albertsen failed to properly identify,
dissect, and ligate the vas deferens in the left testicle
and, instead, dissected and ligated a section of ‘‘vascular
structures.’’ There was no disagreement that the blood
flow to the left testicle had been obstructed at the time
that Arroyo was seen by Dr. Murphy-Setzko at the hospi-
tal on April 4, 2013, and that the loss of blood flow
caused the necrosis of Arroyo’s testicle. Rather, the
parties disputed the cause of the injury. The plaintiffs
argued that the injury to the testicular artery occurred
during the vasectomy on April 1, 2013, and the defen-
dants argued that testicular torsion8 caused the loss of
blood flow, meaning that the injury occurred sometime
after the vasectomy, between April 1 and 4, 2013.
In a short memorandum of decision dated November
19, 2015, the court rendered judgment in favor of the
plaintiffs. Specifically, the court concluded that the
plaintiffs had established by a fair preponderance of
the evidence that Dr. Albertsen was negligent in his
treatment of Arroyo in that he ‘‘deviated from the stan-
dard of care of a board certified urologist in not isolating
the vas deferens and [thereby] injuring the testicular
artery to the left testicle of [Arroyo] during his perfor-
mance of a vasectomy . . . .’’ This appeal followed.9
Additional facts and procedural history will be set forth
as necessary.
I
The defendants claim for the first time on appeal10
that the court improperly rendered judgment for the
plaintiffs on a theory of liability materially different
from that which was alleged in their notice of claim
filed with the commissioner and, thus, from that which
they had received a waiver of sovereign immunity. Spe-
cifically, the defendants argue that in alleging that Dr.
Albertsen ‘‘dissected and ligated . . . vascular struc-
tures, thereby . . . severing blood flow to [Arroyo’s]
left testicle,’’ the ‘‘vascular structure’’ to which the plain-
tiffs must have been referring in their notice of claim
was the testicular artery because the only ‘‘vascular
structure’’ that could have resulted in a lack of blood
flow to the testicle was the testicular artery. The defen-
dants then reason that because the plaintiffs’ theory
of liability presented at trial was that Dr. Albertsen
dissected and ligated a vein, not the testicular artery,
and injured the nearby testicular artery in turn by unin-
tentionally cauterizing11 it, the plaintiffs did not obtain
a waiver of sovereign immunity for the claim presented
to the court.12 We disagree.
‘‘The principle that the state cannot be sued without
its consent, or sovereign immunity, is well established
under our case law.’’ (Internal quotation marks omit-
ted.) Morneau v. State, supra, 150 Conn. App. 246.
Therefore, ‘‘[o]ur Supreme Court expressly has stated
that a plaintiff seeking monetary damages against the
state must first obtain authorization from the Claims
Commissioner.’’ Id., 248. Section 4-147 provides in rele-
vant part: ‘‘Any person wishing to present a claim
against the state shall file with the Office of the Claims
Commissioner a notice of claim . . . containing the
following information: (1) The name and address of the
claimant; the name and address of his principal, if the
claimant is acting in a representative capacity, and the
name and address of his attorney, if the claimant is so
represented; (2) a concise statement of the basis of the
claim, including the date, time, place and circum-
stances of the act or event complained of; (3) a state-
ment of the amount requested; and (4) a request for
permission to sue the state, if such permission is sought.
. . . Such notice shall be for informational purposes
only and shall not be subject to any formal or technical
requirements, except as may be necessary for clarity
of presentation and facility of understanding.’’ (Empha-
sis added.)
In most cases, ‘‘[t]he [commissioner] may deny or
dismiss the claim, order immediate payment of a claim
not exceeding [$7500], recommend to the General
Assembly payment of a claim exceeding [$7500] or grant
permission to sue the state.’’ Morneau v. State, supra,
150 Conn. App. 248; see General Statutes (Rev. to 2013)
§ 4-158 (b). Notably, however, as previously discussed
herein, § 4-160 (b), which codified No. 98-76 of the 1998
Public Acts (P.A. 98-76), provides in relevant part that
‘‘[i]n any claim alleging malpractice against the state,
a state hospital or against a physician . . . or other
licensed health care provider employed by the state,
the attorney or party filing [a malpractice] claim may
submit a certificate of good faith to the Office of the
Claims Commissioner in accordance with section 52-
190a,’’ and ‘‘[i]f such a certificate is submitted, the [com-
missioner] shall authorize suit against the state on such
claim.’’ (Emphasis added.)
‘‘Before § 4-160 (b) was enacted, medical malpractice
claims were treated like other claims against the state
under . . . the General Statutes. . . . [T]he effect of
§ 4-160 (b) was to deprive the . . . commissioner of
his broad discretionary decision-making power to
authorize suit against the state in cases where a claim-
ant has brought a medical malpractice claim and filed
a certificate of good faith. Instead, § 4-160 (b) requires
the . . . commissioner to authorize suit in all such
cases. In other words, the effect of the statute was
to convert a limited waiver of sovereign immunity to
medical malpractice claims, subject to the discretion
of the . . . commissioner, to a more expansive waiver
subject only to the claimant’s compliance with certain
procedural requirements.’’ (Citations omitted; emphasis
altered; footnote omitted.) D’Eramo v. Smith, 273
Conn. 610, 622, 872 A.2d 408 (2005).
As a general matter, ‘‘[s]overeign immunity relates to
a court’s subject matter jurisdiction over a case, and
therefore presents a question of law over which we
exercise de novo review.’’ (Internal quotation marks
omitted.) Morneau v. State, supra, 150 Conn. App. 246.
In the present case, the defendants assert that
because the theory of liability presented in the plaintiffs’
notice of claim filed with the commissioner was differ-
ent from the ‘‘cauterization theory’’ that the plaintiffs
presented at trial, the court was barred by the doctrine
of sovereign immunity from rendering judgment for
the plaintiffs on this ‘‘new’’ theory. In doing so, the
defendants principally rely on Morneau for support.
In Morneau, the plaintiff filed a notice of claim with
the commissioner, seeking to sue the state, among other
defendants, for claims grounded in the alleged improper
conduct of state marshals. Id., 249. After the commis-
sioner dismissed the claim as untimely, the plaintiff
successfully obtained a reversal of that decision from
the legislature, which passed a resolution allowing a
waiver of sovereign immunity. Id., 249–50. Accordingly,
the plaintiff commenced an action in the Superior
Court. Id., 250. The trial court ultimately dismissed the
case, however, on the ground that ‘‘there was nothing
in the plaintiff’s initial claim to the [commissioner] that
would support the distinct legal elements for the causes
of action’’ alleged in his Superior Court complaint. Id.
On appeal, this court agreed with the trial court that
the legislature never waived sovereign immunity for the
claims at hand because ‘‘the plaintiff first raised these
particular legal theories in [his] complaint,’’ and ‘‘our
review of the materials before the [commissioner], and
then the General Assembly, reveals no allegations that
would support the elements of these distinct causes of
action.’’ Id., 251.
The defendants argue that the present case is analo-
gous to the facts of Morneau in that the plaintiffs here
did not obtain permission to sue for the cause of action
presented to the Superior Court. We are unconvinced
for several reasons.
First, Morneau involved an adjudication by the com-
missioner as to whether, in his or her opinion, a particu-
lar claim is ‘‘just and equitable’’ pursuant to § 4-160 (a).13
Such an adjudication necessarily depends on the nature
of the specific claim at hand and the facts that support
it. In contrast, the present case, being a medical mal-
practice action, is subject to § 4-160 (b), which, as pre-
viously discussed, strips the commissioner of his
discretionary decision-making power to authorize suit
for such claims against the state if a certificate of good
faith in accordance with § 52-190a has been submitted.
D’Eramo v. Smith, supra, 273 Conn. 622. That is to say,
the commissioner is obligated, without engaging in any
discovery or adjudicatory processes, to authorize suit
in all such cases. Id.
Here, the plaintiffs properly filed a timely notice with
the commissioner, sought permission from the commis-
sioner to pursue a medical malpractice action against
the defendants, and attached a certificate of good faith.
By virtue of the way in which this state’s system for
obtaining a waiver of sovereign immunity functions,
the commissioner was, therefore, required to grant the
plaintiffs’ motion for permission to sue under the cir-
cumstances, regardless of how the plaintiffs precisely
worded the basis of their medical malpractice claim in
their notice.
In fact, the plaintiffs theoretically could have alleged
more generally in their notice of claim that ‘‘Dr.
Albertsen negligently performed a vasectomy,’’ and, as
long as they submitted a good faith certificate, the com-
missioner would have been obligated to grant a waiver
of sovereign immunity to sue. The fact that the plaintiffs’
actual notice of claim here included more details,
which, as discussed further herein, did not conflict with
the theory pursued at trial, is not fatal to their case.
Furthermore, in our view, the defendants’ reading of
Morneau is overly broad. Specifically, the defendants
point to language in Morneau that provides that the
plaintiff ‘‘needed to include information that would clar-
ify the nature of the waiver sought and ensure that the
[commissioner] . . . would have an understanding of
the nature of that waiver.’’ (Emphasis added.) Morneau
v. State, supra, 150 Conn. App. 252. In the present case,
this concern about apprising the commissioner of ‘‘the
nature of the waiver’’ has no applicability because of
the mandatory obligation of the commissioner to grant
the waiver in all medical malpractice actions that are
accompanied by a good faith certificate.
Finally, putting aside any comparisons with Morneau,
we simply do not agree with the defendants’ argument
that the basis of the claim contained in the notice filed
with the commissioner is materially different from the
basis of their claim at trial. As previously stated, the
plaintiffs’ notice of claim alleged that ‘‘Dr. Albertsen
failed to identify, dissect and ligate the vas deferens, but
instead he incorrectly dissected and ligated surrounding
vascular structures thereby depriving, restricting and
severing blood flow to [Arroyo’s] left testicle.’’
At trial, the court admitted the pathology reports from
the health center and the hospital that showed that
Dr. Albertsen definitively had dissected and ligated a
‘‘section of muscular structure consistent with sections
of a medium size vein’’/‘‘[p]ortion of [b]enign [v]ascular
[c]onnective [t]issue’’ instead of the vas deferens.14
Therefore, that portion of the notice alleging that Dr.
Albertsen incorrectly dissected and ligated ‘‘vascular
structures’’ was, in fact, presented to the court. More-
over, the plaintiffs argued at trial that ‘‘[Dr. Albertsen]
proceeded to cut around [the vascular] structures with
blunt and sharp dissection and cauterization,’’ and ‘‘[i]n
so doing, he injured the testicular artery with the cau-
tery,’’ thereby cutting off the blood flow to the left
testicle. In other words, they argued that Albertsen’s
act of mistakenly dissecting and ligating the vascular
structures eventually resulted in the loss of blood flow
to Arroyo’s left testicle, as they also alleged in the
notice. Accordingly, the plaintiffs’ theory of liability in
their notice accurately sums up the theory of liability
presented at trial, albeit in a truncated manner that
omits any express mention of cauterization in the
causal chain.
Admittedly, the basis of the claim in the notice to
the commissioner was not as particularized as it might
have been, but this fact is unsurprising because the
plaintiffs did not have the benefit of months of discovery
prior to drafting it. In other words, because discovery
had not yet been allowed, the plaintiffs were essentially
hamstrung at the outset with how detailed they could
be in setting forth their medical malpractice claim. Cf.
Briere v. Greater Hartford Orthopedic Group, P.C.,
158 Conn. App. 66, 83, 118 A.3d 596 (2015) (‘‘Medical
malpractice actions present a conundrum in that there
is typically unequal access to the underlying facts and
conditions of the claim at the time a complaint is served.
. . . [W]e conclude that a better reading of the plead-
ings is a broad but pragmatic one that promotes sub-
stantial justice . . . .’’ [Citation omitted.]), aff’d, 325
Conn. 198, 157 A.3d 70 (2017). Moreover, § 4-147 (2)
expressly provides that the claim in the notice need
not be particularized, as all that is statutorily required is
‘‘a concise statement of the basis of the claim’’; (internal
quotation marks omitted) Morneau v. State, supra, 150
Conn. App. 249 n.16; as opposed to ‘‘a formal declaration
of the particular causes of action [the claimants seek]
to bring against the state . . . .’’ Id., 252. The permis-
sive language of § 4-147—‘‘[s]uch notice shall be for
informational purposes only and shall not be subject
to any formal or technical requirements’’—appears to
acknowledge that attaching any binding significance to
this document at such an early stage of the proceeding
would be unfair to a potential plaintiff. Therefore, we
decline to do so in the present case.
For the foregoing reasons, we reject the defendants’
assertion that the court improperly rendered judgment
for the plaintiffs on a claim for which the commissioner
had not granted a waiver of sovereign immunity.
II
We next address the defendants’ claim, raised for the
first time on appeal, that the court improperly awarded
damages to the plaintiffs on a theory of liability that
was pursued at trial, but was not alleged in their Supe-
rior Court complaint. Because the defendants waived
their objection to any variance between the pleadings
and the evidence by failing to object accordingly at trial,
we decline to address this argument on its merits.
In determining whether a judgment against a defen-
dant should be set aside because of defects in a plain-
tiff’s pleading of his cause of action, our Supreme Court
has stated that ‘‘[t]he proper way to attack a variance
between pleadings and proof is by objection at the trial
to the admissibility of that evidence which varies from
the pleadings, and failure to do so at the trial constitutes
a waiver of any objection to such variance. . . . A vari-
ance is a departure of the proof from the facts as alleged.
. . . Only material variances, those which disclose a
departure from the allegations in some matter essential
to the charge or claim, warrant the reversal of a judg-
ment. . . . Where a case has been litigated wholly upon
the merits a party is not permitted after judgment to take
advantage of defects in procedure which, had attention
been called to them at the trial, could readily have been
amended.’’ (Citations omitted; internal quotation marks
omitted.) Tedesco v. Stamford, 215 Conn. 450, 461–62,
576 A.2d 1273 (1990).
In the present case, the defendants never objected
during trial to the introduction of testimony elicited
from Dr. Brodherson that the injury to Arroyo’s left
testicle was due to the cauterization of the testicular
artery, on the ground that it was not properly pleaded
in the complaint. If the defendants had believed that
there was a material variance between the pleadings
and the evidence introduced at trial and had raised the
issue at that time, ‘‘the plaintiff[s] might have been
permitted to amend [their] complaint and any prejudice
could have been cured by a request for a continuance.’’
Id., 462. Because they never raised such an objection,
however, any variance between the pleadings and proof
at trial was clearly waived, and we, therefore, decline
to address the merits of this argument.
III
The defendants next claim that the court improperly
concluded that the plaintiffs satisfied their burden of
proving that Dr. Albertsen injured Arroyo’s testicular
artery. More specifically, they argue that the judgment
should be reversed on the ground that the plaintiffs
offered insufficient evidence on the issue of causation,
being that the evidence they did offer of the cauteriza-
tion theory was merely ‘‘ ‘surmise or conjecture’ . . . .’’
We disagree.
The following additional facts and procedural history
guide our resolution of this claim. As previously dis-
cussed, a substantial part of the evidence presented by
both parties at trial came in the form of expert testimony
from Dr. Brodherson, the plaintiffs’ expert, and Dr. Gla-
zier, the defendants’ expert. Both experts testified on
the issue of causation.
Dr. Brodherson began his testimony by explaining
how a vasectomy is performed. In general, the surgery
is designed to prevent the flow of sperm through the
vas deferens, which is the duct that conveys the sperm,
produced in the testis, from the epididymis to the ure-
thra. First, the physician must locate and identify the
vas deferens through the skin of the testicle by manual
palpation. Once he or she has done so, the physician
makes a small incision in the skin to access the struc-
ture. Before the physician can dissect and ligate15 the
vas deferens, however, he must isolate, or ‘‘strip,’’ the
vas deferens from all of the surrounding structures,
such as the veins and the testicular artery.16 This occa-
sionally results in bleeding, which the physician con-
trols through either cauterizing or tying the vas
deferens. Once the vas deferens is successfully isolated,
the physician then dissects, or cuts, the vas deferens
in two places, while at the same time removing a small
sample to send to pathology for testing to confirm that
the correct anatomical structure was cut. Thereafter,
the physician will ligate each of the cut ends of the vas
deferens, that is, either ‘‘tie it, clip it, however the doctor
wants to do it, just to make sure that it’s permanent,’’
before placing it back into the testicle and closing up
the incision.
The parties’ experts generally agreed that during
Arroyo’s vasectomy, Dr. Albertsen engaged in the pre-
viously mentioned procedure, except that instead of
isolating, dissecting, and ligating the vas deferens, he
performed these procedures on a portion of ‘‘vascular
structures,’’ i.e., a vein. Dr. Brodherson testified that,
generally speaking, if blood flow to one of the multiple
veins in the testicle becomes impeded, the testicle is
not at risk of necrosis because of the many other veins
that are still able to carry blood from the testicle. In
contrast, if the blood flow through the testicular artery
becomes impeded, the testicle will eventually die
because this artery provides the organ with all of its
essential nutrients.
Despite their agreement on the foregoing principles,
the parties’ experts disagreed on a critical point: how
the lack of blood flow to Arroyo’s left testicle, as
reflected in the hospital’s April 4, 2013 ultrasound
results, occurred. On this issue, Dr. Brodherson testi-
fied: ‘‘[W]hen you’re getting the vas [deferens] isolated,
you’ve got to do some damage.17 And when you cut it,
you have to clean up the damage. . . . [B]ut [Dr.
Albertsen] wasn’t isolating the vas [deferens]; he was
isolating a medium-sized vein. And that is where he got
into trouble. . . . [T]he vein and the arteries certainly
run together [in the same sheath]. And in the process of
isolating a vein, I’m sure some bleeding was provoked,
which we expect. . . . And in the process of that, I’m
sure anything bleeding in the area was cauterized to
prevent—to effect hemostasis, which he says he did at
the end of the procedure. And in one of the cauterization
procedures, I’m sure the [testicular] artery was cauter-
ized. . . . And there would have been no reason in his
mind to think that was the testicular artery because
he believed he was working on the vas [deferens].’’
(Footnote added.)
Dr. Brodherson explained that the testicular artery
is more at risk if the physician is working on a vein
instead of the vas deferens, stating: ‘‘When we do varico-
cele surgery and we remove veins, which is a procedure
done for infertility, we use a dopplar in the operating
room to make sure that it’s a vein and not an artery.
That’s how delicate these things are. You can’t really
see them. And it’s very possible to cut an artery or to
sever an artery. . . . [W]e use the dopplar to identify
the [testicular artery]. So, of course, if he had a dop-
plar—but he didn’t know he was on a vein. He was
dissecting a vein. He wasn’t dissecting a vas [deferens].
Completely different structure.’’ Because of Dr.
Albertsen’s wrong assumption about the structure he
was working on, Dr. Brodherson reasoned that ‘‘he
destroyed vital tissue because he was in the wrong part
of that tiny area. . . . [T]he vas [deferens], well, that’s
a different neighborhood. And the artery unfortunately
took a hit.’’
On the other hand, Dr. Glazier testified that the injury
to Arroyo’s testicular artery could not have occurred
during the vasectomy on April 1, 2013, because the
reported blood loss was too small and that the injury
was the result of torsion that had occurred ‘‘a day or
two following his vasectomy.’’ Specifically, he testified
that if Dr. Albertsen had destroyed the testicular artery
during the vasectomy, there would have been ‘‘[s]ignifi-
cantly more’’ blood loss than the estimated ‘‘less than
one milliliter’’ that he reported in his notes, because
although the testicular artery is ‘‘not a huge artery,’’
‘‘[i]t’s big enough. And if the patient had normal blood
pressure, the pulsatile nature of the artery would break
through the cautery seal and the patient will continue
to bleed; if not at that moment, certainly within a short
period of time.’’ In contrast, Dr. Brodherson testified
regarding the blood loss that a physician might not
know if he had cauterized or otherwise injured an artery
because of its small size and the fact that it may go
into spasm, or ‘‘close down [its blood flow] for a sec-
ond,’’ upon any slight manipulation by the physician.
Dr. Glazier further opined that the necrosis of the
left testicle must have been the result of torsion, which
‘‘is a sudden loss of blood supply to the testicles usually
by [the] twisting of the cord structures right above the
testicle so that the blood flow is progressively dimin-
ished and subsequently cut off,’’ that must have
occurred sometime after the vasectomy on April 1, 2013,
and before Arroyo went to the hospital on April 4, 2013.
Dr. Brodherson testified, however, that he was ‘‘[a]bso-
lutely 100 percent’’ sure that this theory was not
accurate.
More specifically, Dr. Brodherson testified that if tor-
sion had occurred, the twisting of the cord would have
killed ‘‘everything, the whole scrotal contents’’ of the
left testicle, including the blood supply to the epididy-
mis, a coiled structure on the top of the testicle that is
a conduit for sperm. Because Dr. Murphy-Setzko, the
physician who performed the orchiectomy on Arroyo,
noted in her surgical pathology report and testified dur-
ing her deposition that she observed Arroyo’s epididy-
mis as appearing ‘‘tan to pink and soft’’ and, thus,
healthy on April 4, 2013, Dr. Brodherson reasoned that
the blood supply to the epididymis was not affected by
the injury, and, therefore, torsion could be ruled out as
a potential cause of the necrosis.
Dr. Brodherson also pointed to several other factors
that informed this opinion, including (1) Dr. Murphy-
Setzko’s operating notes expressly stating that the ultra-
sound suggested ‘‘lack of blood flow versus torsion,’’
(2) her deposition testimony that she ‘‘did not see tor-
sion’’ in the testicle,18 and (3) the age of Arroyo. With
regard to Arroyo’s age, she stated that torsion is ‘‘out
of the age group. I mean, it would be very unusual
for a thirty-eight year old man, or forty, thirty-nine,
whatever he was at the time. They don’t get torsion.
. . . I mean, you may get one in a million with torsion,
but then you’re just assuming this is the guy [who] just
had a vasectomy and got torsion. And, you know, it’s
pretty coincidental. As you say, counselor, it stresses
credulity. It’s just ridiculous. Maybe one in—say, one
in twenty, thirty, 40,000. So, you’re telling us that this
guy, poor gentleman not only just had a vasectomy, but
then he—they’re trotting out this diagnosis that doesn’t
even happen as a second coincidence? It just doesn’t
fit.’’
We next set forth the applicable standard of review
and guiding principles of law for this claim. ‘‘Because
the . . . claim challenges the sufficiency of the evi-
dence, which is based on the court’s factual findings,
the proper standard of review is whether, on the basis
of the evidence, the court’s finding . . . was clearly
erroneous. . . . In other words, a court’s finding of
fact is clearly erroneous and its conclusions drawn from
that finding lack sufficiency when there is no evidence
in the record to support it . . . or when although there
is evidence to support it, the reviewing court on the
entire evidence is left with the definite and firm convic-
tion that a mistake has been committed. . . . More-
over, we repeatedly have held that [i]n a [proceeding]
tried before a court, the trial judge is the sole arbiter
of the credibility of the witnesses and the weight to be
given specific testimony. . . . Where there is conflict-
ing evidence . . . we do not retry the facts or pass on
the credibility of the witnesses. . . . The probative
force of conflicting evidence is for the trier to deter-
mine.’’ (Citations omitted; internal quotation marks
omitted.) State v. Trotman, 68 Conn. App. 437, 441, 791
A.2d 700 (2002).
‘‘[T]o prevail in a medical malpractice action, the
plaintiff 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.’’ (Internal quotation marks omit-
ted.) Gold v. Greenwich Hospital Assn., 262 Conn. 248,
254–55, 811 A.2d 1266 (2002). ‘‘Generally, expert testi-
mony is required to establish both the standard of care
to which the defendant is held and the breach of that
standard.’’ (Internal quotation marks omitted.) Id., 255.
Likewise, ‘‘[e]xpert medical opinion evidence is usually
required to show the cause of an injury or disease
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.’’ Milliun
v. New Milford Hospital, 310 Conn. 711, 725, 80 A.3d
887 (2013).
The defendants do not claim that there is insufficient
evidence supporting the court’s findings regarding the
appropriate standard of care and Dr. Albertsen’s devia-
tion from that standard of care. Thus, we focus on the
principles pertaining to causation. ‘‘All medical mal-
practice claims, whether involving acts or inactions of
a defendant physician, require that a defendant physi-
cian’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 reasonable probabilities.
. . . The causal relation between an injury and its later
physical effects may be established by the direct opin-
ion 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. . . .
‘‘To be reasonably probable, a conclusion must be
more likely than not. . . . Whether an expert’s testi-
mony is expressed in terms of a reasonable 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 determined by looking at
the entire substance of the expert’s testimony.’’ (Cita-
tion omitted; internal quotation marks omitted.) Sargis
v. Donahue, 142 Conn. App. 505, 513, 65 A.3d 20, cert.
denied, 309 Conn. 914, 70 A.3d 38 (2013).
‘‘[I]t is the plaintiff who bears the burden to prove
an unbroken sequence of events that tied his injuries
to the [defendants’ conduct]. . . . This causal connec-
tion must be based upon more than conjecture and
surmise.’’ (Citations omitted; internal quotation marks
omitted.) Paige v. St. Andrew’s Roman Catholic Church
Corp., 250 Conn. 14, 25–26, 734 A.2d 85 (1999). A plain-
tiff, however, ‘‘is not required to disprove all other possi-
ble 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.’’
(Emphasis added.) Rawls v. Progressive Northern Ins.
Co., 310 Conn. 768, 782, 83 A.3d 576 (2014). ‘‘[T]he issue
of causation in a negligence action is a question of fact
for the trier . . . .’’ (Internal quotation marks omitted.)
Burton v. Stamford, 115 Conn. App. 47, 87, 971 A.2d
739, cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009).
In the present case, the defendants argue that
because the only expert opinion supporting the plain-
tiffs’ cauterization theory was from Dr. Brodherson, and
because Dr. Brodherson’s opinion that Dr. Albertsen
cauterized the testicular artery was ‘‘rank speculation,’’
the plaintiffs did not meet their burden of proving causa-
tion. We are unpersuaded by this argument.
First, Dr. Brodherson’s testimony on causation relied
on substantial evidence that was largely unchallenged
by the defendants. Specifically, it was undisputed that
Dr. Albertsen mistook a vein for the vas deferens during
the vasectomy, as proven by the results of the two
separate pathology reports admitted at trial. It was also
uncontroverted by the results of the ultrasound per-
formed at the hospital on April 4, 2013, that there was no
blood supply to the left testicle, which is ‘‘tantamount to
testicular death,’’ and, as Dr. Brodherson testified, the
testicle’s main source of nutrients via blood supply is
the testicular artery.
Furthermore, the plaintiffs showed that as a result
of Dr. Albertsen’s misidentification of the vas deferens,
he was working perilously close to the testicular artery.
The defendants assert in their brief that Dr. Brodherson
‘‘provided no explanation as to why mere proximity to
the veins was sufficient to conclude that the artery was
injured.’’ To the contrary, Dr. Brodherson explained
several times during his testimony why the testicular
artery is significantly more at risk if one is performing
surgery on a vein as opposed to the vas deferens,
emphasizing that the veins and artery run close together
in the same sheath in the spermatic cord. He testified
that the artery is extremely delicate and that it is so
small, ‘‘[y]ou can’t really see [it].’’ He also described in
detail the highly specialized piece of equipment, i.e., a
dopplar, that physicians utilize when they are operating
on the veins near the artery for other types of urologic
procedures, such as a varicocelectomy. Dr. Brodherson
explained how the dopplar helps physicians to identify
and visualize the artery so that they are able to protect
it from dissection and cauterization during these proce-
dures, and stated that Dr. Albertsen, in the present case,
essentially ‘‘[performed] a varicocelectomy without
having a dopplar,’’ a very precarious act because of the
risk of loss of blood flow posed to the testicle.
Ultimately, Dr. Brodherson supported his opinion on
causation through the process of ‘‘differential diagno-
sis,’’ which is ‘‘a method of diagnosis that involves a
determination of which of a variety of possible condi-
tions is the probable cause of an individual’s symptoms,
often by a process of elimination.’’ DiLieto v. County
Obstetrics & Gynecology Group, P.C., 297 Conn. 105,
114 n.13, 998 A.2d 730 (2010). The only two possible
causes of Arroyo’s necrotic left testicle that were
offered by the experts at trial were the cauterization
theory testified to by Dr. Brodherson and the torsion
theory. As previously discussed herein, Dr. Brodherson
considered and rejected the latter as a possible cause
of the injury based soundly on the evidence that the
epidydimis contained blood flow at the time Dr. Mur-
phy-Setzko performed the orchiectomy on April 4, 2013.
As Dr. Brodherson testified, Arroyo’s healthy epidyd-
imis ‘‘is the nail that . . . shuts the coffin. Because the
epididymis would have been dead had it been torsion.’’
In other words, Dr. Brodherson established the causal
relation between the injury and its later physical effects
‘‘by his deduction by the process of eliminating causes
other than the traumatic agency,’’ as is permitted by our
case law. (Internal quotation marks omitted.) Sargis v.
Donahue, supra, 142 Conn. App. 513; see also Ward v.
Ramsey, 146 Conn. App. 485, 490–91, 77 A.3d 935, cert.
denied, 310 Conn. 965, 83 A.3d 345 (2013).
In contrast, Dr. Glazier’s expert opinion on why
Arroyo’s necrotic left testicle must have been caused
by torsion was based largely on the fact that Dr.
Albertsen did not report that there was any significant
bleeding during the vasectomy. Dr. Brodherson’s testi-
mony, however, refuted that there always will be signifi-
cant bleeding if the artery is injured because, in some
cases, the artery will be in spasm, and, thus, less blood
will be flowing through it. The court was free to credit
Dr. Brodherson’s explanation.
Dr. Glazier also opined that the most likely explana-
tion was torsion because there was no indication during
the orchiectomy that the artery was severed, as there
was no indication that Dr. Murphy-Setzko had observed
the testicular artery at all.19 In contrast to this, however,
Dr. Brodherson testified that the fact that Dr. Murphy-
Setzko stated that she could not find the artery during
the procedure is ‘‘a complete diversion’’ and did not
surprise him ‘‘[b]ecause it had been previously injured,
cauterized. And—first of all, why would you look for
it? And second of all, you’re never going to find it. The
thing died four days ago. It’s retracted in. It’s black like
everything else. So, it’s completely irrelevant. There’s
no need to find the artery. I mean, you couldn’t find it.’’
As this court has held many times over, ‘‘[c]onflicting
expert testimony does not necessarily equate to insuffi-
cient evidence.’’ (Internal quotation marks omitted.)
Dallaire v. Hsu, 130 Conn. App. 599, 603, 23 A.3d 792
(2011). 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 either expert.’’ (Internal
quotation marks omitted.) DelBuono v. Brown Boat
Works, Inc., 45 Conn. App. 524, 541, 696 A.2d 1271, cert.
denied, 243 Conn. 906, 701 A.2d 328 (1997). Thus, in
the present case, the court, as the trier of fact, certainly
was free to reject the defendants’ theory of torsion and
to credit the opinion of the plaintiffs’ expert that the
testicular artery was cauterized during Dr. Albertsen’s
dissection and ligation of the vein.
In sum, we highlight that in order to prove causation,
a plaintiff ‘‘must demonstrate that it is more likely than
not that the defendant’s negligence was the cause of
the accident.’’ Rawls v. Progressive Northern Ins. Co.,
supra, 310 Conn. 782. ‘‘[T]he issue of causation in a
negligence action is a question of fact for the trier
. . . .’’ (Internal quotation marks omitted.) Burton v.
Stamford, supra, 115 Conn. App. 87. We agree with
the plaintiffs that the court’s finding was not clearly
erroneous in that regard. Accordingly, we conclude that
the court properly determined that the plaintiffs had
satisfied their burden of proving that Dr. Albertsen
injured Arroyo’s testicular artery and, thus, caused the
necrosis of Arroyo’s left testicle.
The judgment is affirmed.
In this opinion the other judges concurred.
1
In this opinion, we refer to Jose as Arroyo and to his wife, Marie Arroyo,
as Marie.
2
Specifically, the court initially awarded Arroyo $36,249.81 in economic
damages and $300,000 in noneconomic damages on his medical malpractice
claim, and awarded Marie $50,000 in damages on her loss of consortium
claim. The court thereafter granted the defendants’ motion for a collateral
source reduction and reduced Arroyo’s economic damages award to
$20,383.44.
3
The commissioner at that time was J. Paul Vance, Jr.
4
A ‘‘necrotic’’ testicle refers to the death of the tissues in the testicle,
which is tantamount to the death of the testicle itself.
5
General Statutes § 4-147 provides in relevant part: ‘‘Any person wishing
to present a claim against the state shall file with the Office of the Claims
Commissioner a notice of claim . . . .’’
6
We note that although § 4-160 has been amended since the events at
issue, those amendments are not relevant to this appeal. For convenience,
we refer in this opinion to the current revision of § 4-160.
7
General Statutes § 52-190a (a) provides in relevant part: ‘‘No civil action
or apportionment complaint shall be filed to recover damages resulting from
personal injury or wrongful death occurring on or after October 1, 1987,
whether in tort or in contract, in which it is alleged that such injury or death
resulted from the negligence of a health care provider, unless the attorney
or party filing the action or apportionment complaint has made a reasonable
inquiry as permitted by the circumstances to determine that there are
grounds for a good faith belief that there has been negligence in the care
or treatment of the claimant. The complaint . . . shall contain a certificate
of the attorney or party filing the action or apportionment complaint that
such reasonable inquiry gave rise to a good faith belief that grounds exist
for an action against each named defendant. . . . To show the existence
of such good faith, the claimant or the claimant’s attorney . . . shall obtain
a written and signed opinion of a similar health care provider, as defined
in section 52-184c . . . that there appears to be evidence of medical negli-
gence and includes a detailed basis for the formation of such opinion. . . .’’
8
As Dr. Glazier testified, torsion ‘‘is a sudden loss of blood supply to the
testicles usually by [the] twisting of the cord structures right above the
testicle so that the blood flow is progressively diminished and subsequently
cut off.’’
9
The defendants filed a motion to reargue/reconsider, which the court
denied. They do not challenge that ruling on appeal.
10
Because sovereign immunity implicates the court’s subject matter juris-
diction, it may be raised at any time, including for the first time on appeal.
See Vejseli v. Pasha, 282 Conn. 561, 575 n.12, 923 A.2d 688 (2007).
11
As Dr. Brodherson testified at trial, cauterization is ‘‘the use of high
intensity heat. . . . [I]t destroys the tissue to the point—it’s a sealant, actu-
ally. If we use it on blood vessels, it will seal an artery if it’s a small artery
. . . . Or it can actually also cut . . . . If it’s a small vessel . . . it burns
it, it closes it, it seals it. It has an odor to it and you see smoke coming out
of it. But the main thing is that the bleeding will stop.’’
12
Specifically, Dr. Brodherson testified that ‘‘the vein and the arteries
certainly run together. And in the process of isolating a vein, I’m sure some
bleeding was provoked, which we expect. . . . And in the process of that,
I’m sure anything bleeding in the area was cauterized to prevent—to effect
hemostasis, which [Dr. Albertsen] says he did at the end of the procedure.
And in one of the cauterization procedures, I’m sure the artery was cau-
terized.’’
13
General Statutes § 4-160 (a) provides: ‘‘Whenever the Claims Commis-
sioner deems it just and equitable, the Claims Commissioner may authorize
suit against the state on any claim which, in the opinion of the Claims
Commissioner, presents an issue of law or fact under which the state, were
it a private person, could be liable.’’
14
We note that both experts testified at trial that the dissected section of
‘‘vascular structures’’ referred to in the pathology reports was, in fact, a vein.
15
According to Dr. Brodherson’s testimony, to ‘‘ligate’’ something is ‘‘to
bind it or to tie it up.’’
16
Dr. Brodherson testified that ‘‘[t]he point of . . . isolating the vas [defer-
ens] [is] . . . we really only want to tie off the vas [deferens]. We don’t want
to tie off other structures, especially an artery. . . . [T]he vas [deferens] has
to be isolated and it has to be on its own.’’
17
Dr. Brodherson had previously testified that the process of isolating the
vas deferens is occasionally ‘‘unpleasant’’ for the patient and ‘‘difficult’’ for
the physician because the physician has to manipulate the patient’s tissue
in order to discover the vas deferens beneath the skin, move what he believes
to be the vas deferens toward the surface of the skin, and make an incision
in order to access the structure and complete the vasectomy. He stated that
sometimes, however, after the incision is made, the structure that was
manipulated is not, in fact, the vas deferens, ‘‘[s]o then we have to go digging
around. And the skin is already open. You’re getting bleeding. And you
find—looking for it and the patient’s squirming. I mean, this is not a walk
in the park usually, often. But then we’ll dig deeper sometimes. Sometimes
it’s a snap. Sometimes the patient has very thin skin. You can almost see
it. . . . And then there’s these others—it could be on the same patient—
where it can take twenty minutes just to isolate.’’
18
We note that during her deposition testimony, Dr. Murphy-Setzko
declined to offer any opinions on the issue of standard of care.
19
The defendants also tried to make the argument that the code that Dr.
Murphy-Setzko used on her hospital reports for Arroyo, indicating that his
diagnosis was ‘‘testicle torsion,’’ lent support to their theory that torsion
was the cause. Significantly, however, Dr. Murphy-Setzko testified herself
that she merely used this code because the hospital’s record system did not
provide a code for vascular injury, and she ‘‘had to pick what’s the next
closest thing.’’