Wilkins v. Connecticut Child Birth & Women's Center

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KRISTIN WILKINS ET AL. v. CONNECTICUT
CHILDBIRTH AND WOMEN’S
CENTER ET AL.
(AC 38224)
Lavine, Keller and Bishop, Js.
Syllabus
The plaintiff sought, in two actions that were consolidated for trial, to
recover damages from the defendant W Co. for medical malpractice,
claiming that W Co. and its agents were negligent in their care and
treatment of the plaintiff immediately after the delivery of her daughter
and in her postdelivery care with regard to her pregnancy. Specifically,
the plaintiff alleged, inter alia, that W Co. had failed to diagnose and to
treat a fourth degree obstetrical laceration at the time of the delivery.
The matter was tried to a jury, which returned a verdict in favor of W
Co. From the judgments rendered thereon, the plaintiff appealed to this
court. She claimed, inter alia, that the trial court abused its discretion
in submitting a threshold interrogatory to the jury and in framing its
answer to a question from the jury. Specifically, the first jury interroga-
tory asked the jury to determine whether the plaintiff had in fact sus-
tained a fourth degree laceration and/or a severe tear of her vaginal
tissue, her perineal skin and muscle, and anal sphincter muscle during
labor and delivery, and it stated that if the answer was no, the jury was
to return a verdict for W Co. During deliberations, the jury asked the
court whether it was sufficient if it found that there was an injury to
just one of those areas or whether it had to find an injury to all three
of those areas. The court answered that in light of the use of the word
‘‘and’’ in the interrogatory, the injury should be evaluated as a whole
and not as separate injuries. Held that the trial court did not abuse its
discretion in giving the jury the first interrogatory or in framing its
answer to the jury’s question: that court’s use of the first interrogatory
and its answer to the jury that the injury should be evaluated as a
whole were consistent with the language of the plaintiff’s complaint,
the evidence adduced at trial and the plaintiff’s arguments, and were
permissible in order to elicit a determination of the material threshold
fact, namely, whether the plaintiff had sustained a fourth degree lacera-
tion and/or severe tear to her vaginal tissue, perineal skin and muscle,
and anal sphincter muscle at the time of giving birth, as alleged in the
complaint, as the existence of such an injury was central to all of the
claims alleged in the complaint, and the expert testimony presented
focused on the existence of such an injury and did not relate that the
plaintiff sustained anything less than a fourth degree laceration during
labor; moreover, because the crux of the plaintiff’s claim at trial was
that she sustained such an injury and the success of her presentation
at trial depended on the factual determination of whether she did indeed
suffer the claimed injury, it was within the court’s discretion to submit
the interrogatory to the jury asking it to determine first whether it found
that the plaintiff sustained such an injury, and the plaintiff could not
claim that the court erred in framing the language utilized by the plaintiff
herself as the core of her complaint.
Argued April 19—officially released September 19, 2017
Procedural History
Action, in two cases, to recover damages for personal
injuries sustained by the named plaintiff as a result of
the defendants’ alleged medical malpractice, and for
other relief, brought to the Superior Court in the judicial
district of Danbury, where the plaintiff Billy Wilkins
withdrew his claim for loss of consortium; thereafter,
the actions were withdrawn as to the named defendant,
and the cases were consolidated and tried to a jury
before Truglia, J.; verdict for the defendant Women’s
Health Associates, P.C., in both cases; subsequently,
the court denied the named plaintiff’s corrected motion
to set aside the verdict and rendered judgments in
accordance with the verdict, from which the named
plaintiff appealed to this court. Affirmed.
Alinor C. Sterling, with whom were Sarah Steinfeld
and, on the brief, Carey B. Reilly, for the appellant
(named plaintiff).
David J. Robertson, with whom were Christopher
H. Blau and, on the brief, Madonna A. Sacco and Mat-
thew M. Sconziano, for the appellee (defendant Wom-
en’s Health Associates, P.C.).
Opinion
BISHOP, J. In this medical negligence action, the
plaintiff Kristin Wilkins1 appeals from judgments in two
cases, which were consolidated for trial, in favor of the
defendant Women’s Health Associates, P.C.2 On appeal,
she argues that the court abused its discretion in submit-
ting a threshold jury interrogatory and in framing its
answer to a question from the jury regarding that inter-
rogatory, and, therefore, the jury verdict, returned in
the defendant’s favor, should be set aside and a new
trial should be ordered. We disagree and, accordingly,
we affirm the judgments of the trial court.
The jury reasonably could have found the following
facts. The defendant is a birthing center located in Dan-
bury, which employs physicians and certified nurse-
midwives, in addition to other medical professionals
and support staff. The plaintiff gave birth to her second
child on April 17, 2007, at the defendant birthing center,
where she was attended to by staff, including Katy
Maker, a certified nurse-midwife. Immediately follow-
ing the birth, Maker visually and physically examined
the plaintiff’s vaginal and perineal areas3 to determine
whether there had been any obstetrical lacerations dur-
ing birth.4 Maker documented in the plaintiff’s medical
chart that the plaintiff had not sustained any obstetrical
lacerations and that her perineum was intact.5 The fol-
lowing day, April 18, 2007, at the plaintiff’s home, Maker
again visually and physically examined the plaintiff’s
vaginal and perineal areas to ensure that she was heal-
ing properly from birth. Maker did not document that
the plaintiff had a laceration or any abnormalities. The
plaintiff also returned to the defendant center on April
25, 2007 for a one week postpartum visit, performed
by another certified nurse-midwife, Catherine Parisi.
Parisi noted on the medical form during that visit that
there were no problems with the plaintiff’s perineum.
The plaintiff next returned to the defendant center on
May 31, 2007, for a six week follow-up examination,
performed by Maker. Maker visually and physically
examined the plaintiff’s vaginal and perineal areas, and
documented in the plaintiff’s medical chart that she had
‘‘healed well’’ from the birth, and recorded no lacera-
tions or abnormalities.
On August 1 or 2, 2007, the plaintiff returned to the
defendant center again for an annual examination, at
which time no lacerations or abnormalities were
recorded. On September 4, 2007, the plaintiff was exam-
ined by a dermatologist, unaffiliated with the defendant,
who documented that the plaintiff’s genitalia were
normal.
On March 6, 2008, the plaintiff returned to the defend-
ant center for an annual gynecological examination,
performed by Parisi. Parisi noted on the medical chart
under ‘‘Reason for Visit’’ that it was an annual examina-
tion, and also, on the basis of how the plaintiff described
her condition, that the plaintiff was ‘‘concerned about
healing of laceration from birth last year, some rectal
incontinence, [and] ‘loose’ tissue in vagina.’’ Parisi
examined the plaintiff’s perineal area and noted on the
medical form that her external genitalia ‘‘showed abnor-
malities [and a] poorly healed laceration,’’ though Parisi
testified that she did not know whether a laceration
had occurred at birth. Parisi referred the plaintiff to
Kenneth Blau, a gynecologist specializing in pelvic
reconstructive surgery and urogynecology,6 who was
the founder, managing partner, and president of the
defendant. Blau examined the plaintiff on April 26, 2008,
and recorded that the plaintiff’s perineum was ‘‘totally
absent,’’ that she had ‘‘no sphincter, thin membrane
between anus and vagina,’’ and that she required ‘‘com-
plete perineal/anal reconstruction . . . .’’ He opined
that the cause of such an injury was a ‘‘failed episiotomy
restitution,’’ though he testified that he was not sure
whether the plaintiff had an episiotomy when she gave
birth, and was relying on the plaintiff’s own recol-
lection.7
The plaintiff later began treatment with another uro-
gynecologist, Richard Bercik, who is unaffiliated with
the defendant. On July 31, 2008, Bercik performed an
abdominal examination, a pelvic examination, and a
rectal examination of the plaintiff. He determined that
the plaintiff’s ‘‘external genitalia were gaping or essen-
tially . . . wide open,’’ that her ‘‘sphincter muscles,
both the internal and external sphincters, were torn,’’
that ‘‘she had a complete separation of [the] wall
between the vagina and the rectum,’’ that ‘‘[t]he muscles
that would make up the perineal body . . . were no
longer there . . . and there was, actually, an absent
perineum, so there was no separation between the
vagina and the rectum,’’ and ‘‘[e]ssentially the lining of
the rectum, the mucosa of the rectum and the mucosa
of the vagina were . . . basically next to each other
with no tissue in between . . . .’’ Bercik testified that
the plaintiff was suffering from a ‘‘cloaca, which is a
term for a combined vagina and anus.’’ He diagnosed
the plaintiff with a fourth degree obstetrical laceration,
which he opined dated back to the time of delivery,
and was either unrepaired, or was repaired, but the
repair had subsequently broken down.
A fourth degree laceration extends ‘‘from the vagina
all the way through into the rectal mucosa,’’ which is
‘‘the most internal part of the . . . anal sphincter.’’8
Bercik surgically repaired the fourth degree laceration
on September 8, 2008.
The plaintiff filed a complaint in this medical negli-
gence action on February 19, 2010, alleging that the
defendant and its agents were negligent in their care
and treatment of the plaintiff immediately after the
delivery of her daughter, on April 17, 2007, and in her
postpartum examination on April 18, 2007. In her opera-
tive one count amended complaint, dated January 16,
2015, the plaintiff asserted that the defendant was negli-
gent in the following ways: (1) ‘‘failed to adequately
and properly care for, treat, diagnose, monitor and
supervise the plaintiff . . . for delivery and postdeliv-
ery care with regard to her pregnancy’’; (2) ‘‘failed to
inspect properly the vaginal, perineal and anal areas of
the plaintiff . . . immediately following the vaginal
delivery on April 17, 2007 and/or on April 18, 2007’’; (3)
‘‘failed to diagnose a [fourth] degree and/or severe tear
of the vaginal tissue, perineal skin/muscle and anal
sphincter immediately following the vaginal delivery’’;
(4) ‘‘failed to inform the plaintiff that she had a [fourth]
degree and/or severe tear of her vaginal tissue, perineal
skin/muscle and anal sphincter immediately following
the vaginal delivery’’; (5) ‘‘failed to treat properly and
in a timely manner the plaintiff’s [fourth] degree and/
or severe tear of her vaginal tissue, perineal skin/muscle
and anal sphincter immediately following the vaginal
delivery’’; and (6) ‘‘failed to refer properly and in a
timely manner the plaintiff for treatment of the [fourth]
degree tear and/or severe tear of her vaginal tissue,
perineal skin/muscle and anal sphincter immediately
following the vaginal delivery . . . .’’ The plaintiff
alleged many physical injuries, including an unrepaired
fourth degree obstetrical laceration, fecal incontinence,
surgery, ‘‘tear of the vaginal tissue, perineal skin, peri-
neal muscle, anal sphincter and/or rectal tissue,’’ and
absent perineum.9
The jury trial took place over the course of nineteen
days, at which the plaintiff called to testify, inter alia,
the plaintiff, Bercik, and Blau, and entered into evidence
the video depositions of many of the defendant’s nurse-
midwives, including Maker and Parisi. The plaintiff’s
theory of the case, that the defendant failed to diagnose
and treat a fourth degree laceration at the time of the
delivery, vastly differed from the defendant’s theory,
that the plaintiff did not suffer a fourth degree obstetri-
cal laceration during delivery.10 The defendant moved
for a directed verdict on January 20, 2015, alleging,
inter alia, that the plaintiff failed to establish that the
defendant was negligent in its care of the plaintiff. The
court, Truglia, J., denied the defendant’s motion.
At the end of the evidence portion of the trial, on
February 24, 2015, the court held a charge conference
to discuss a draft of the proposed jury charge and jury
interrogatories. The first jury interrogatory suggested
by the court purported to ask the jury to determine
whether the plaintiff had in fact sustained a fourth
degree laceration during labor and delivery on April
17, 2007. The plaintiff objected to the interrogatory as
creating a prejudicial threshold issue. The plaintiff also
argued that not all of the allegations in the complaint
specified that there was a fourth degree laceration, and,
therefore, the jury did not necessarily have to find that
there was such an injury in order to return a verdict in
the plaintiff’s favor. In the event that the interrogatory
was given to the jury, however, the plaintiff requested
that the court add the clause ‘‘and/or severe tear of her
vaginal tissue, her perineal skin and muscle and anal
sphincter muscle’’ after ‘‘fourth degree laceration’’ in
order to conform to the language used in the complaint.
The defendant, however, agreed with the court’s use
of this first interrogatory stating: ‘‘[I]t is the definitive
question that was asked of all the experts. If there was
no fourth degree laceration . . . or no perineal skin
muscle and anal sphincter [tear] during labor and deliv-
ery on April [17, 2007] . . . [then] the whole case is
gone.’’ The defendant further stated that there was no
claim in the case that the plaintiff had anything other
than a fourth degree laceration, and there was ‘‘no testi-
mony about [a first] or a second or a third’’ degree
laceration, and that ‘‘everything . . . fails if there was
no fourth degree laceration,’’ to which the court
responded, ‘‘[t]hat’s how I see it.’’
On February 25, 2015, after instructing the jury, the
court submitted its proposed first interrogatory with
the additional language requested by the plaintiff. The
interrogatory stated as follows: ‘‘1. Do you find that the
plaintiff has proven by a preponderance of the evidence
that she sustained a fourth degree laceration and/or a
severe tear of her vaginal tissue, her perineal skin and
muscle and anal sphincter muscle during her labor and
delivery on April 17, 2007?’’ The interrogatory further
instructed: ‘‘If your answer to this question is yes,
please proceed to the next questions. If your answer
is no, please proceed directly to the verdict form for
defendant Women’s Health Associates, P.C., and enter
a verdict for the defendant.’’ (Emphasis in original.)
On the following day, during deliberations, the jury
asked the court the following question: ‘‘Is the injury
stated after and/or evaluated as a whole or should they
be evaluated separately?’’ After some discussion as to
how to interpret the question, the court, the plaintiff’s
counsel, and the defendant’s counsel agreed on an
understanding—that ‘‘the jury wants to know if they
find that there was an injury to just the vaginal tissue,
just the perineal skin or just the . . . anal sphincter
muscle, [whether] that’s sufficient or whether they have
to find an injury to all three of those areas . . . .’’ The
defendant argued that the clause, ‘‘a severe tear of her
vaginal tissue, her perineal skin and muscle and anal
sphincter muscle,’’ should be evaluated as a whole
because of the use of word ‘‘and,’’ whereas the plaintiff
argued that the jury could evaluate it as a whole, or
as separate injuries. In determining the answer to the
question, the court stated to the plaintiff: ‘‘[Y]our com-
plaint speaks of [the] failure to diagnose a fourth degree
and/or severe tear of the vaginal tissue, perineal skin/
muscle and anal sphincter. Those things are the same
in the court’s view. Fourth degree and/or severe tear
mean the same thing.’’
Accordingly, the court instructed the jury as follows:
‘‘The answer to your question is: the injury stated after
and/or, in interrogatory number one, should be evalu-
ated as a whole, that’s the answer to this question and
that’s all I can say, at this time.’’ Thereafter, the jury
answered ‘‘no’’ to the first interrogatory and, accord-
ingly, returned a verdict in favor of the defendant on
February 26, 2015.
The plaintiff filed a motion to set aside the verdict
on March 4, 2015, alleging, inter alia, that the court
improperly submitted the first jury interrogatory. The
court denied the motion on July 28, 2015, stating that the
interrogatory and subsequent instruction were ‘‘entirely
consistent with the plaintiff’s allegations of negligence
and offer of proof at trial.’’ Accordingly, the court ren-
dered judgment in favor of the defendant on July 28,
2015. This appeal followed.
On appeal, the plaintiff argues that the court abused
its discretion in giving the jury an unnecessary threshold
interrogatory, and, therefore, the jury verdict should be
set aside and a new trial should be ordered. Specifically,
the plaintiff argues that the interrogatory was unneces-
sary and confusing, that the complaint made claims
other than those allowed by the interrogatory, that the
evidence supported claims based on injuries other than
those posed in the interrogatory, and that the court’s
instruction following the jury’s question ‘‘cemented the
error.’’ In each of her arguments, the plaintiff is essen-
tially making the same claim: that the jury could have
returned a verdict for the plaintiff even if it did not
find that the plaintiff had sustained a fourth degree
laceration and/or severe tear of her vaginal tissue, peri-
neal skin/muscle, and anal sphincter muscle during
labor. In response, the defendant argues that the court
acted well within its discretion in giving the jury the
first interrogatory because it ‘‘accurately captured and
reflected’’ the plaintiff’s claims at trial. We agree with
the defendant.
We first set forth our standard of review. ‘‘The power
of the trial court to submit proper interrogatories to
the jury, to be answered when returning [its] verdict,
does not depend upon the consent of the parties or the
authority of statute law. In the absence of any manda-
tory enactment, it is within the reasonable discretion
of the presiding judge to require or to refuse to require
the jury to answer pertinent interrogatories, as the
proper administration of justice may require. . . . 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. . . . Moreover, [i]n
order to establish reversible error, the defendant must
prove both an abuse of discretion and a harm that
resulted from such abuse.’’ (Internal quotation marks
omitted.) Champeau v. Blitzer, 157 Conn. App. 201,
210, 115 A.3d 1126, cert. denied, 317 Conn. 909, 115
A.3d 1105 (2015).11
We further note that jury interrogatories must be
consistent with the pleadings and the evidence adduced
at trial, so as not to mislead the jury. Chapman v.
Norfolk & Dedham Mutual Fire Ins. Co., 39 Conn. App.
306, 316, 665 A.2d 112, cert. denied, 235 Conn. 925, 666
A.2d 1185 (1995). ‘‘The function of jury interrogatories
is to provide a guide for the jury’s reasoning, and a
written chronicle of that reasoning.’’ Hammer v. Mount
Sinai Hospital, 25 Conn. App. 702, 710, 596 A.2d 1318,
cert. denied, 220 Conn. 933, 599 A.2d 384 (1991). The
purpose of jury interrogatories is to elicit a determina-
tion of material facts, to furnish the means of testing
the correctness of the verdict rendered, and of ascer-
taining its extent. Viera v. Cohen, 283 Conn. 412, 451,
927 A.2d 843 (2007). In the present case, the court’s
use of the first interrogatory was consistent with the
pleadings and the evidence, and was permissible in
order to elicit a determination of the material, threshold
fact: whether the plaintiff sustained a fourth degree
laceration and/or severe tear to her vaginal tissue, peri-
neal skin and muscle, and anal sphincter at the time of
giving birth.
The plaintiff’s argument that the interrogatory was
improper because the complaint made claims other
than those allowed by the interrogatory must fail
because the tenor of the complaint, as highlighted by
the testimony elicited at trial, relied on the plaintiff
suffering from a fourth degree laceration and/or severe
tear at the time of birth. Additionally, the plaintiff’s
argument that the interrogatory was improper because
the jury could have found something less than a fourth
degree laceration is inconsistent with the testimony
elicited at trial. So, too, is her argument that the inter-
rogatory was improper because the complaint and evi-
dence supported a jury’s finding for the plaintiff even
if there was no fourth degree laceration and/or severe
tear. Finally, the plaintiff’s argument that the court’s
supplemental instruction to the interrogatory
‘‘cemented the [court’s] error’’ must also fail for the
same reasons.
In her one count negligence complaint, the plaintiff
alleged six subclaims, four of which specifically linked
the defendant’s negligence to the existence of a fourth
degree laceration and/or ‘‘severe tear of the vaginal
tissue, perineal skin/muscle, and anal sphincter’’ on
April 17 or 18, 2007. The two allegations that did not
specifically mention the claimed injury were that the
defendant ‘‘failed to adequately and properly care for,
treat, diagnose, monitor and supervise the plaintiff . . .
for delivery and postdelivery care with regard to her
pregnancy, ‘‘ and ‘‘failed to inspect properly the vaginal,
perineal and anal areas of the plaintiff . . . immedi-
ately following the vaginal delivery on April 17, 2007
and/or on April 18, 2007.’’ It is clear from the evidence
the plaintiff elicited at trial that, although the complaint
itself did not reiterate the claim of a fourth degree
laceration in these two subclaims, the existence of such
an injury was central to all of her claims.
The plaintiff presented expert testimony from Eliza-
beth Howard, a nurse-midwife with a doctorate in nurs-
ing, who testified regarding the standard of care, that
the plaintiff sustained a fourth degree laceration during
birth. She further testified that without a proper exami-
nation, a fourth degree laceration could have been
missed, and that, in fact, Maker did fail to accurately
diagnose a ‘‘significant obstetrical laceration’’ because
of an improper examination. In addition to Howard, the
plaintiff presented testimony from one other expert
witness, Bercik, regarding causation. Both Bercik and
Howard testified that they believed the plaintiff sus-
tained a fourth degree laceration during childbirth. The
plaintiff, contrary to her assertions in her brief, elicited
no expert testimony that the plaintiff sustained anything
less than a fourth degree laceration during labor. Fur-
ther, Bercik testified on direct examination that a fourth
degree laceration does not ‘‘generally progress from a
first to a second, or [from] a second to a third,’’ and
further testified on cross-examination that ‘‘[w]ithin a
degree of medical probability,’’ a small tear would not
turn into a fourth degree laceration. Blau also testified
on direct examination in the plaintiff’s case-in-chief as
well as on cross-examination that a first degree lacera-
tion, sustained during childbirth, would not evolve into
a fourth degree laceration.12 Additionally, the plaintiff’s
counsel, herself, relied on the expert testimony that the
plaintiff sustained a fourth degree laceration in oppos-
ing the defendant’s motion for a directed verdict. Coun-
sel argued that the testimony of both Bercik and
Howard supported the claim that the plaintiff sustained
a fourth degree laceration at the time of birth, and,
therefore, a directed verdict was improper.13
The crux of the plaintiff’s claim at trial was that she
had sustained a fourth degree laceration and/or severe
tear of the vaginal tissue, perineal skin/muscle and anal
sphincter during childbirth on April 17, 2007, and the
success of her presentation at trial rose and fell on
the factual determination as to whether she did indeed
suffer such an injury. For the plaintiff to now claim, on
appeal, that the dispute at trial implicated a question
regarding the extent of the plaintiff’s injuries, and not
whether the plaintiff had, in fact, sustained the claimed
injuries at childbirth is at odds with the factual record.
It was clear throughout the plaintiff’s case-in-chief that
she was alleging that she sustained a fourth degree
obstetrical laceration during childbirth. Indeed, during
opening arguments, the plaintiff’s counsel stated: ‘‘[T]he
evidence in this case and the primary dispute in this case
is that [the plaintiff] suffered a fourth degree obstetrical
laceration.’’ It is clear further from the plaintiff’s opposi-
tion to the defendant’s motion for a directed verdict
that the plaintiff realized that the factual dispute in
question was at the heart of this case. Counsel stated:
‘‘[T]here’s a fact in dispute here. . . . [T]hat’s what the
jury’s here for, to . . . resolve the facts in dispute. . . .
I mean, this case is about a factual dispute, it’s less
about standard of care and deviation from the stan-
dard of care, than it is about the facts. . . . [I]t is
ultimately going to be for the jury to decide, based on
the state of the evidence, what they believe the facts
to have been.’’ (Emphasis added.) Further, the following
colloquy occurred during argument on the defendant’s
motion for a directed verdict:
‘‘[The Plaintiff’s Counsel]: [I]t is for the jury to decide
whether or not the totality of that evidence supports the
fact that there was a laceration existing at the time, so—
‘‘The Court: A fourth degree laceration, existing at
the time. . . .
‘‘[The Plaintiff’s Counsel]: A fourth degree laceration,
although it—it’s also the complaint had—as stated
says—right, not a first degree, right, a severe . . .
injury to the perineal skin, yes.
‘‘The Court: No, your allegation is that it was a
fourth degree.
‘‘[The Plaintiff’s Counsel]: And/or, it says; and/or
severe—
‘‘The Court: And/or a severe tear of the vaginal tissue.
‘‘[The Plaintiff’s Counsel]: Right. Exactly. So, and
that’s been the allegation all along.’’ Indeed, at the plain-
tiff’s request, the court amended the language of the
interrogatory and jury instructions to specifically
include a ‘‘severe tear’’ as an alternative injury for the
jury to determine, as described by the plaintiff herself
in her complaint. Furthermore, the plaintiff alleged in
her complaint that she sustained an ‘‘unrepaired fourth
degree obstetrical laceration.’’
Finally, the plaintiff’s argument that the court’s sup-
plemental instruction to the jury on the interrogatory
‘‘cemented the [court’s] error’’ must also fail for all of
the reasons stated above. The plaintiff continues to
argue in this claim that the interrogatory was unneces-
sary and precluded the jury from finding in her favor,
even though it found that the plaintiff had not sustained
a fourth degree laceration and/or severe tear during
labor. Again, this argument is inconsistent with the
plaintiff’s contentions throughout trial, as well as the
testimony and evidence elicited by the plaintiff. In its
question to the court regarding the first interrogatory,
the jury asked whether ‘‘the injury stated after and/or
[should be] evaluated as a whole or should they be
evaluated separately,’’ to which the court responded:
‘‘The injury stated after and/or . . . should be evalu-
ated as a whole . . . .’’14 The plaintiff’s counsel even
argued to the court that the plaintiff’s ‘‘allegation all
along’’ has been that the plaintiff suffered a fourth
degree laceration and/or severe tear of her vaginal tis-
sue, perineal skin/muscle and anal sphincter. Also, the
language of the interrogatory was taken from the plain-
tiff’s complaint, specifically at the plaintiff’s request.
The plaintiff may not now claim that the court erred
in framing the language that the plaintiff herself utilized
as the core of her complaint against the defendant.
Because it is clear from the plaintiff’s complaint, the
evidence elicited at trial, and the plaintiff’s arguments
that the case revolved around the existence of a fourth
degree laceration and/or a severe tear of the vaginal
tissue, perineal skin and muscle, and anal sphincter, it
was within the court’s discretion to submit this interrog-
atory to the jury, asking it to determine first whether
it found that the plaintiff sustained such an injury.
Accordingly, in propounding this threshold interroga-
tory and the following instruction, the court did not
abuse its discretion.15
The judgments are affirmed.
In this opinion the other judges concurred.
1
Kristin Wilkins’ husband, Billy Wilkins, also was a plaintiff, but he with-
drew his claims for loss of consortium prior to the verdict. Therefore, we
refer in this opinion to Kristin Wilkins as the plaintiff.
2
The plaintiff’s claims against the named defendant, Connecticut Child-
birth & Women’s Center, were withdrawn prior to the verdict. All subsequent
references to the defendant are to Women’s Health Associates, P.C.
3
The perineum is the ‘‘area between the vagina and . . . [the] rectum or
anus and [is] really made up of mostly muscles.’’
4
An obstetrical laceration is one in which the vaginal, perineal, and/or
anal structures ‘‘tear during the course of delivery.’’
5
The plaintiff testified at trial that Maker told her that there was ‘‘a small
first degree tear’’ that looked like it would ‘‘heal on its own,’’ so she would
not stitch it. Maker testified, however, that she never told the plaintiff that
there was any laceration that occurred at birth.
6
Urogynecology is a subspecialty of gynecology ‘‘that deals with vaginal
fl[ow] dysfunction and abnormalities.’’
7
An episiotomy is the intentional cutting of the vaginal tissue during birth
to prevent an obstetrical laceration from occurring. The testimony and
evidence reflects that the plaintiff did not require an episiotomy during labor.
8
At trial, Bercik testified to the other degrees of lacerations as follows:
‘‘[A] first degree laceration is when that tear only includes the lining of the
vagina or the . . . vaginal epithelia. . . .
‘‘The second degree laceration is one in which that laceration or tear . . .
extends into the perineum, but not to the muscles of the anal sphincter. . . .
‘‘Then there’s something we call a third degree laceration, which is actually
broken down into A, B, and C. So, a third degree laceration, in general,
refers to that—that tear now extends into the anal sphincter, but not to the
rectal epithelium or mucosa.
‘‘So, [a third degree] A) laceration . . . extends into the external anal
sphincter, but not through the entire thickness . . . [and it is] what we call
a partial tear of this external anal sphincter.
‘‘Three B) is a complete tear of the [external] anal sphincter, but not the
internal sphincter.
‘‘And, then three C) is one which encompasses both [the] internal and
external anal sphincter, but not yet to the rectal mucosa.’’
Blau testified that ‘‘[a] fourth degree . . . laceration is really a fairly
catastrophic event at a delivery. . . . [T]his is a large gaping defect in the
perineum and it extends all the way from the vagina down to the . . . rectal
canal . . . the symptoms are incontinence and pain and bleeding, difficulty
with intercourse, defecatory abnormalities or problems with incontinence,
fecal incontinence, anal incontinence.’’
9
Additionally, the plaintiff alleged that she suffered from dyspareunia,
‘‘disrupted external and internal anal sphincters,’’ ‘‘completely disrupted
perineal body,’’ ‘‘attenuated rectovaginal space,’’ ‘‘rectovaginal fistula,’’ ‘‘very
thin rectovaginal septum,’’ ‘‘perineal discomfort,’’ ‘‘weakened anal sphinc-
ter,’’ ‘‘pocket between vagina and rectum in which feces gets trapped,’’
‘‘increased risk of tissue breakdown and loss of elasticity/strength of anal
sphincter with menopause,’’ and ‘‘psychological, physiological and neurologi-
cal sequelae.’’
10
The defendant did not dispute that the plaintiff did in fact have a fourth
degree laceration at some point in time, but did dispute that it occurred
during the birth of the plaintiff’s second child, on April 17, 2007, or shortly
thereafter, on April 18, 2007. The plaintiff claims only that the defendant
was negligent in its care of the plaintiff on April 17, 2007 and/or April 18,
2007, and does not make any claim against the defendant in its follow-up
care of the plaintiff.
11
The plaintiff argues that the court essentially directed a verdict in favor
of the defendant and, therefore, the standard of review applicable to directed
verdicts applies in this case, which is that ‘‘[w]e review a court’s decision
to direct a verdict for the defendant by considering all of the evidence,
including reasonable inferences, in the light most favorable to the plaintiff.’’
(Internal quotation marks omitted.) Burton v. Stamford, 115 Conn. App. 47,
67, 971 A.2d 739, cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009). We do
not agree with the plaintiff’s characterization of the court’s action and,
therefore, decline to apply this standard of review.
12
The plaintiff also argues that the court mistakenly believed that a fourth
degree laceration was the same thing as a severe tear of the vaginal tissue,
perineal skin and muscle, and anal sphincter. In her brief, the plaintiff
argues that the latter injury could be considered a third degree laceration as
opposed to a fourth degree laceration. It appears clear from the undisputed
evidence, however, that a ‘‘severe tear of the vaginal tissue, perineal skin
and muscle, and anal sphincter,’’ as listed in the complaint, is the natural
sequelae of a fourth degree laceration. Also, even if we agreed with the
plaintiff that the court was mistaken in its analysis that they are the same
injury, the argument fails because of the framing of the interrogatory. Specifi-
cally, the use of the term ‘‘and/or’’ in the interrogatory allowed the jury to
determine the two stated injuries, a ‘‘fourth degree laceration’’ and a ‘‘severe
tear of the vaginal tissue, perineal skin/muscle, and anal sphincter,’’ sepa-
rately. In sum, if the jury had believed that a forth degree laceration was a
different injury from a severe tear, it could have answered ‘‘yes’’ to the
interrogatory if indeed it determined that the plaintiff had sustained such
an injury during labor. Moreover, the evidence could not have supported
reasonably a jury’s conclusion that the plaintiff sustained a lesser laceration,
such as a third degree laceration, during labor, as the record contains no
evidence in support of such a finding. See Carrano v. Yale-New Haven
Hospital, 279 Conn. 622, 656, 904 A.2d 149 (2006) (‘‘[g]enerally, the plaintiff
must present expert testimony in support of a medical malpractice claim
because the requirements for proper medical diagnosis and treatment are
not within the common knowledge of laypersons’’ [internal quotation
marks omitted]).
13
We realize that counsel’s statements are not evidence, though it is
illustrative and provides useful insight into the plaintiff’s theory of the case
at trial, as opposed to what she now argues on appeal.
14
The defendant argues that the court ‘‘correctly instructed the jury to
consider both parts of the first interrogatory together.’’ It appears, however,
that the defendant misunderstands the court’s answer to the jury’s question.
The interrogatory asked the jury to determine whether the plaintiff had
sustained a ‘‘fourth degree laceration and/or a severe tear of [the] vaginal
tissue . . . perineal skin and muscle, and anal sphincter . . . .’’ (Empha-
sis added.) The jury asked the court whether ‘‘the injury stated after and/
or [should be] evaluated as a whole or should they be evaluated separately?’’
(Emphasis added.) The court answered: ‘‘The injury stated after and/or . . .
should be evaluated as a whole . . . .’’ (Emphasis added.) In sum, the court
was not instructing the jury that a fourth degree laceration and a severe
tear should be read as one injury, but instead that a ‘‘severe tear of the
vaginal tissue, perineal skin and muscle, and anal sphincter’’ should be read
as one injury. Though the court opined, outside of the presence of the jury,
that a fourth degree laceration and severe tear, as listed in the interrogatory,
were the same injury, it did not instruct the jury to read the interrogatory
as such. The jury was free to determine separately, by virtue of the use of
‘‘and/or,’’ whether the plaintiff sustained a fourth degree laceration, or
whether she sustained a severe tear of the vaginal tissue, perineal skin and
muscle, and anal sphincter. See also footnote 11 of this opinion.
15
A court’s decision, sua sponte, to submit a narrowing interrogatory to
the jury carries some risks. It is not our role, on review, however, to substitute
our judgment for the court’s reasonable exercise of discretion.