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WILLIAM LEVESQUE v. BRISTOL HOSPITAL, INC., ET AL. (SC 17666)
Rogers, C. J., and Katz, Palmer, Vertefeuille and Schaller, Js. Argued September 4, 2007--officially released April 1, 2008

Gary J. Strickland, with whom, on the brief, was Vincent M. DeAngelo, for the appellant (plaintiff). Frank H. Santoro, with whom, on the brief, was Joyce A. Lagnese, for the appellees (defendant Victoria W. Biondi et al.).

Opinion

PALMER, J. The plaintiff, William Levesque, brought this action against the defendant Victoria W. Biondi,1 an obstetrician-gynecologist, on behalf of his minor son, Daniel Levesque (Daniel),2 to recover for injuries that Daniel had suffered as a result of the defendant's alleged negligence in connection with Daniel's delivery. A jury returned a verdict in favor of the defendant, and the trial court rendered judgment in accordance therewith. On appeal,3 the plaintiff claims that the trial court improperly (1) declined to instruct the jury that the defendant is liable for injuries that Daniel had suffered as a result of a third party's negligence in performing an emergency medical procedure on Daniel following his delivery if the jury first found that the emergency procedure was necessary due to the defendant's negligence in delivering Daniel, (2) directed a verdict for the defendant on the issue of whether Daniel's mother had given informed consent to continue her efforts to undergo a vaginal delivery, rather than a delivery by cesarean section, after repeated attempts to induce labor had failed, and (3) awarded costs to the defendant for time that her expert witness had spent preparing for a deposition noticed by the plaintiff. We reject the plaintiff's claims and, accordingly, affirm the judgment of the trial court. The jury reasonably could have found the following facts. On the evening of Friday, March 16, 2001, Karen Pilbin, Daniel's mother, was admitted to Bristol Hospital with elevated blood pressure. Pilbin was nearing the end of her pregnancy with Daniel, and the decision was made to induce labor. Although Pilbin had delivered her first child by cesarean section, she elected to attempt a vaginal birth with Daniel, a procedure known as a vaginal birth after cesarean section (VBAC), after being informed of its risks. Throughout Friday night, Pilbin was administered Cervidil, a cervical ripening agent that induces labor. Physician's Desk Reference (62d Ed. 2008) p. 1167. By Saturday morning, when the defendant was on call, Pilbin had made no progress toward delivery. At that time, the defendant decided to begin administering Pitocin, another labor stimulant.4 At about 8:30 p.m., when Pilbin still had made no further progress in her labor, the defendant advised Pilbin that she had several options. These included continuing to take Pitocin through the night, having a cesarean section that night or stopping all efforts until the morning and then resuming induction with Pitocin. According to the defendant, Pilbin indicated that she very much wanted to have a vaginal delivery, and, together, they decided that the best way to proceed would be to resume induction with Pitocin in the morning, when Pilbin would be well rested.5

On Sunday morning, after a few hours on Pitocin, Pilbin began to experience stronger contractions. At approximately 11:45 a.m., the defendant inserted an intrauterine pressure catheter (catheter) into Pilbin's uterus to ascertain the strength of Pilbin's contractions. Daniel's heart rate dropped immediately after the catheter was inserted. The defendant was not alarmed, however, because Daniel appeared healthy, and his heart rate had varied since Friday night without ever reaching a critical point. At about 11:50 a.m., Pilbin was given an increased dosage of Pitocin, with the intended effect of increasing the strength of her contractions. At approximately 11:55 a.m., the defendant returned to her office in a building adjacent to the hospital but left instructions with the nurses caring for Pilbin to call in the event that any problems arose. Soon after the defendant had left the hospital, nursemidwife Eliza Holland became concerned with changes in Daniel's heart rate, and, at 12:05 p.m., Holland paged the defendant for a consultation. At about 12:12 p.m., Pilbin again was given a higher dosage of Pitocin,6 but the administration of Pitocin was stopped completely at 12:20 p.m. when Daniel's heart rate again decreased.7 At that time, Holland again had the defendant paged, and was informed that the defendant was on her way back to the hospital. Pilbin then was prepared for an emergency cesarean section. During this time period, the defendant had left her office to run an errand at a store about one mile from the hospital. As she entered the store, she received notice of Holland's page and returned immediately to the hospital to perform the cesarean section. When Daniel was born at 12:48 p.m., he was pale, blue, had no muscle tone, did not respond to stimulation and was not breathing. At that time, Daniel was transferred to a pediatric resuscitation team headed by pediatrician Thomas G. Ward. Ward and his team intubated8 Daniel at 12:53 p.m., five minutes after birth. An endotracheal tube was inserted through Daniel's mouth and a nasogastric tube was inserted through his nose. The endotracheal tube was to run through Daniel's trachea to provide oxygen and the nasogastric tube was to run into Daniel's stomach, where it would remove any air or liquid. When Daniel failed to improve, Ward ordered a chest X ray to ascertain whether the tubes had been positioned properly. Radiological technician Linda Mackie took the X ray to radiologist John M. Walker, who read the film and informed Mackie that both tubes were positioned improperly. The endotracheal tube was in Daniel's esophagus, rather than in his trachea, and, therefore, the tube was not supplying air to his lungs. Walker could not tell from the X ray whether the nasogastric tube was in the trachea or in the esophagus, but he observed

that it was positioned too high to perform its intended function. Mackie wrote down Walker's findings and returned to the nursery in which Daniel was being treated. Mackie testified that when she arrived at the nursery, she read aloud the results of Walker's findings to Ward. At trial, however, Ward testified that he did not recall whether Mackie had said anything to him about the X ray and, if so, what she had said. Ward examined the X ray himself, however, but apparently did not recognize that the endotracheal tube was not in the proper position to provide air to Daniel's lungs. Shortly after examining the X ray, Walker proceeded to the nursery to check on Daniel's status. When Walker entered, Ward told Walker that he had moved the tube, and Ward made what Walker interpreted as a reassuring gesture, indicating with his hands that the tube had been moved upward in Daniel's body. Walker assumed that Ward was referring to the endotracheal tube because its improper positioning posed a much more serious problem than the improper placement of the nasogastric tube. Walker and Ward reviewed the chest X ray together, and Walker told Ward that the nasogastric tube also had to be moved. Walker then left the nursery, assuming that the problem had been resolved. At approximately 1:40 p.m., a neonatal resuscitation team from the University of Connecticut Health Center arrived and reintubated Daniel,9 at which point his heart rate and color improved immediately. Because of the improper placement of the endotracheal tube, however, Daniel suffered from insufficient oxygenation for more than fifty minutes, leaving him with severe brain injuries and cerebral palsy. The plaintiff subsequently filed this action on Daniel's behalf, claiming, inter alia, that the defendant was negligent in the way that she managed Daniel's delivery. The plaintiff also claimed that the defendant improperly had failed to obtain Pilbin's informed consent to continue to attempt a vaginal delivery of Daniel after prolonged efforts to induce labor had failed. Near the close of the plaintiff's case, the defendant filed a motion for a directed verdict on the plaintiff's informed consent claim, which the trial court granted. At the close of evidence, the court instructed the jury on six subspecifications of negligence that the plaintiff had alleged against the defendant. In particular, the court instructed the jury on the plaintiff's claims that the defendant (1) attempted to deliver Daniel at Bristol Hospital when she knew or should have known that Bristol Hospital did not have medical personnel immediately available to provide emergency neonatal care, (2) failed to monitor Daniel properly and to respond to changes in Daniel's heart rate, (3) improperly administered Pitocin, (4) inadequately supervised the medical

personnel involved in Daniel's delivery, (5) failed to perform a cesarean section in a timely fashion, and (6) was not present and available to perform the cesarean section immediately upon being informed that the procedure was necessary. The jury returned a verdict in favor of the defendant.10 In its answers to interrogatories, the jury indicated that it had found that, although the defendant had been negligent in her care or treatment of Pilbin or Daniel, that negligence was not a proximate cause of Daniel's injuries.11 The plaintiff filed a motion to set aside the verdict claiming, inter alia, that the trial court improperly (1) declined to instruct the jury that if the defendant was negligent in delivering Daniel, then that negligence was a proximate cause of the injuries that Daniel had sustained as a result of the initial, failed resuscitation procedure even though that procedure itself had been performed negligently, and (2) directed a verdict for the defendant on the plaintiff's claim that the defendant had failed to obtain Pilbin's consent to continue to attempt a vaginal delivery after initial attempts to induce labor had failed. The trial court denied the motion to set aside the verdict and, thereafter, awarded costs to the defendant for time that an expert defense witness had taken to prepare for his deposition by the plaintiff. This appeal followed. Additional facts and procedural history will be set forth as necessary. I We first address the plaintiff's claim that the trial court improperly declined to instruct the jury that the defendant was liable for any injuries that Daniel had suffered as a result of the failed resuscitation procedure if the jury first found that the procedure was necessitated by the defendant's negligence in delivering Daniel. Because the charge that the plaintiff requested is not a correct statement of the law, the trial court properly declined to give it. The following additional facts and procedural history are necessary for our resolution of this claim. At trial, Ward acknowledged his mistake in failing to insert the endotracheal tube properly and in failing to remedy the problem in a timely manner. In addition, there appears to be no dispute that, if that resuscitation procedure had been performed properly, Daniel would not have sustained any permanent injuries. Nevertheless, the plaintiff advanced the theory that, although Ward and his team had caused Daniel's injuries by inserting the endotracheal tube into Daniel's esophagus rather than through his trachea and by failing to rectify the problem in a timely manner, the defendant also was liable for those injuries because it was her negligence that had caused Daniel to require resuscitation in the first place. In support of this claim, the plaintiff maintained that

the defendant's negligence in delivering Daniel had caused the need for remedial action, namely, the insertion of the tube through Daniel's trachea, and that the unskillful or negligent performance of Ward's resuscitation team, under our law, was a foreseeable consequence of the defendant's negligence. The defendant claimed that she was not negligent in delivering Daniel and that, even if she had been negligent, Daniel's injuries were attributable solely to the subsequent negligence of Ward's resuscitation team and not the defendant's negligence.12 The plaintiff filed a request to charge in accordance with this theory of liability. The requested charge provided in relevant part: ``The plaintiff has alleged that [Daniel's] depressed condition at birth, requiring resuscitation, was caused by the [defendant's] negligence . . . in the management of labor and administration of Pitocin, including the failure to timely perform a [cesarean section]. Following this, the plaintiff alleged that other defendants were negligent in the course of the failed resuscitation. Under our law, a person who is injured is entitled to medical treatment, and if his injuries were the result of negligence, he may recover for any subsequent harm caused to him while receiving treatment for his original injuries. In other words, he may recover damages from the original wrongdoer for any worsening of his condition during the provision of subsequent medical treatment. This rule applies regardless of whether . . . anyone committed negligence during the course of subsequent treatment. As the rule applies to this case, if you find that [Daniel's] condition at birth, requiring his resuscitation, was the result of negligence on the part of [the defendant] . . . then [she] would be responsible for all the consequences of the failed resuscitation, regardless of whether . . . you find that the failure to resuscitate was the result of negligence or some other cause. ``Under our law, an injured party can recover from the original tortfeasor for damages caused by the negligence of a doctor in treating the injury which the tortfeasor caused, provided the injured party used reasonable care in selecting the doctor. . . . ``The injured person must use reasonable care in the selection of the doctor or hospital, but I instruct you that in this case this condition has been met, because due to the urgency of the situation of Daniel's birth, there was no other treatment choice available. Therefore, if you find that pre-birth negligence placed Daniel in such a condition that he required resuscitation, then our law holds the initial wrongdoer or wrongdoers responsible for any further injuries resulting from the failed resuscitation.'' (Citations omitted; emphasis added; internal quotation marks omitted.) The trial court declined to give the plaintiff's requested charge, explaining that the instruction that the

court intended to give on proximate cause and apportionment adequately addressed the plaintiff's claim that the subsequent negligence of Ward's resuscitation team did not break the causal connection between the defendant's alleged negligence and Daniel's injuries. Specifically, the trial court stated: ``I think it's clear to the jury from the . . . charge as a whole about apportionment and proximate cause that [the defendant]--if she's found negligent, that they're to determine what her relative share of the damages is.'' The court also noted that counsel for the plaintiff was free to elaborate, in closing argument, on the plaintiff's theory that the defendant's negligence was a proximate cause of Daniel's injuries and that the defendant, therefore, was liable for some or all of those injuries, notwithstanding the subsequent negligence of Ward's resuscitation team. The plaintiff's counsel nevertheless asserted that, at a minimum, a brief clarification by the court was necessary to assist the jury in understanding the plaintiff's claim that the defendant also was responsible for Daniel's injuries even though the negligence of Ward's resuscitation team was the direct cause of those injuries. The defendant's counsel maintained that the plaintiff's requested charge was not an accurate statement of the law and, further, that the instruction that the court intended to give on proximate cause was sufficient. The court thereafter reaffirmed its decision not to instruct the jury in accordance with the plaintiff's request. After the close of evidence, the trial court charged the jury on the issue of proximate cause as follows: ``Now, what is this proximate cause concept about which you've heard a bit today? If you find that [the] defendant was negligent in at least one of the ways alleged in the complaint, the next question you must address is, was the negligence of [the] defendant a proximate cause of any of the injuries and damages or losses which [Daniel] has suffered? If your answer to that question is no, you must return a verdict for [the] defendant. ``In proving proximate cause, the plaintiff must show by a preponderance of the evidence, first, that [Daniel's] injury would not have occurred without the negligence of [the] defendant, that is, that the negligence was an actual cause--what we lawyers refer to as a cause in fact of the injury. The second thing the plaintiff must show is not only was the defendant's act or omission an actual cause of [Daniel's] injury, but it was also a proximate cause of [his] injury, that is, that it was a substantial factor in bringing about the injury. If an injury suffered by [Daniel] was a direct result or a reasonably probable consequence of the defendant's negligence, negligent act or omission, it was proximately caused by that act or omission.'' The trial court also instructed the jury on the principle of apportionment. See General Statutes

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