Felecia Gerardi et al. v. Maryanne McDonnell, M.D. et al. (2009)

MEMORANDUM OF DECISION

On November 25, 2009, the jury rendered a defendants' verdict in this medical malpractice case brought by the plaintiff, Felecia Gerardi.   The plaintiff moves to set aside the verdict and order a new trial.

The sole ground for this motion is the claimed impropriety of a single jury instruction informing the panel that they could only find liability as to Dr. Maryanne McDonnell based on her actions and/or inactions and not on the negligence of any other health care provider.   The specific instruction was as follows:

Nor may you ascribe to Dr. McDonnell any negligence on the part of anyone else including, for example, Dr. Michaels-Bogdan or Dr. Matson, if any you find occurred.

The plaintiff makes no claim that this instruction erroneously stated the law in general.   Instead, the plaintiff attacks the appropriateness of such an instruction in the absence of expert testimony regarding the professional negligence of anyone besides Dr. McDonnell.

The court holds that this motion lacks merit both as to whether such an instruction was warranted and as to a lack of harm to the plaintiff if it was not.

The test for a jury instruction is not whether the charge was “exhaustive, perfect, or technically accurate.”  Barrett v. Hebrew Home and Hospital, Inc., 73 Conn.App. 327, 332 (2002).   The real question is whether the instruction provided the jurors “with sufficient guidance in reaching a correct verdict.”  Id.

First, the plaintiff sued both Dr. McDonnell and her employer, Ob-Gyn Group of Manchester.   The allegations of malpractice against Dr. McDonnell were restricted to her performance during a laproscopic hysterectomy for the plaintiff on March 10, 2006.   In contrast, the liability of the Group was based on respondeat superior.   The instruction in question was appropriate to distinguish the type of direct liability alleged against Dr. McDonnell from the imputed liability of her employer.   Unlike the employer's situation, Dr. McDonnell could only be held responsible for her own conduct.

Second, the instruction was especially significant because the jury heard evidence that Dr. McDonnell was the plaintiff's “attending” physician both before and after the surgery when, unfortunately, multiple complications ensued.   Also, the jury learned that Dr. McDonnell was the primary surgeon who was assisted by Dr. Michaels-Bogdan.   In addition, during the trial the defendants contested whether all of the complications stemmed from the March 10, 2006, surgery or whether these complications were caused by subsequent procedures.

The parties agreed that the specific allegations of professional negligence against Dr. McDonnell precluded a finding of liability arising from the actions and/or inactions of other health care providers, including Dr. Michaels-Bogdan and Dr. Matson.   No supervisory negligence was claimed in this case.

Thus, it was essential that the jury understand that the evaluation of Dr. McDonnell's professional negligence excluded imputing the negligence of other health care providers to her.   Even though no expert witness testified as to the standard of care with respect to other health care providers, it was certainly possible that the jury might erroneously apply the standard-of-care evidence introduced as to Dr. McDonnell to her assisting surgeon or others.   An instruction dispelling any potential misconceptions on this issue was both appropriate and necessary.

Assuming, arguendo, that such an instruction was unnecessary because no expert testified regarding the standard of care vis-a-vis other health care providers, the plaintiff has failed to demonstrate any prejudice created by the receipt of such an instruction.   The plaintiff merely makes the nebulous claim that the instruction may have served “to confuse” and “misdirected” the jury.   The court cannot conceive of how instructing the jury to focus on the allegations directly against Dr. McDonnell and not on any possible negligence of other health care providers caused a lack of attention or misguided the jury from the task before them.   Before a verdict will be set aside based on a claim of an inappropriate instruction, the movant must establish that the unwarranted instruction likely caused the movant harm.  Barrett v. Hebrew Home and Hospital, Inc., supra, 337.

For these reasons, the motion is denied.

Sferrazza, J.

Sferrazza, Samuel J., J.