Champeau v. Blitzer ( 2015 )

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AMY CHAMPEAU, ADMINISTRATOR (ESTATE
OF BRIAN HASKELL) v. MARK
BLITZER, M.D., ET AL.
(AC 36431)
Gruendel, Prescott and Harper, Js.
Argued January 15—officially released May 12, 2015
(Appeal from Superior Court, judicial district of New
Haven, Wilson, J.)
Charles R. Douthat, for the appellant (plaintiff).
James B. Rosenblum, with whom, on the brief, was
Diana M. Carlino, for the appellees (defendants).
Opinion
HARPER, J. In this medical malpractice action, the
plaintiff, Amy Champeau, the administrator of the estate
of Brian Haskell (decedent), appeals from the judgment
of the trial court rendered in favor of the defendants,
Mark Blitzer and Arrhythmia Center of Connecticut,
following a jury trial.1 On appeal, the plaintiff claims
that the court improperly (1) charged the jury on the
doctrine of causation, and (2) provided a legally incor-
rect interrogatory to the jury that affected the jury’s
verdict. We agree with the plaintiff and, therefore,
reverse the judgment of the trial court and remand the
case for a new trial.2
The following facts and procedural history are rele-
vant to this appeal. The decedent died on June 25,
2007, from an episode of ventricular tachycardia.3 The
decedent was found by his roommate, Fred Scandale,
in his home next to a treadmill. Prior to his death, the
decedent was very engaged in athletics including tennis,
running, and skiing.
The decedent’s health issues came to a physician’s
attention for the first time during an emergency room
visit on April 5, 2007, the day after an incident in which
he passed out when running. In the emergency room,
the decedent relayed his health history to the physician,
which included that he had had prior episodes of pass-
ing out after running. Upon leaving the emergency
room, the decedent was instructed that he should not
partake in physical activity, particularly running. The
decedent was referred to Henry Ward, a cardiologist,
who diagnosed him with ventricular tachycardia. Ward
referred the decedent to the defendant, a cardiologist
and electrophysiologist, and the decedent became his
patient on April 16, 2007. As noted by the trial court:
‘‘Following diagnostic testing, [the defendant] deter-
mined that [the decedent] was likely experiencing one
of two possible arrhythmias. The first, known as cate-
cholaminergic polymorphic ventricular tachycardia
(CPVT), is caused by physical exertion and stress, and
carries with it a high potential for sudden death if left
untreated. The second, known as left posterior fascicu-
lar ventricular tachycardia, presents with a low risk of
death and is not triggered by physical exertion or
stress.’’ Left posterior fascicular ventricular tachycardia
is a variant of idiopathic ventricular tachycardia (IVT).
The defendant treated the decedent for this type of IVT.
From April 17, 2007, to April 20, 2007, the decedent
was admitted to the Hospital of St. Raphael for exten-
sive testing. The defendant’s partner, Mark Marieb, an
electrophysiologist, surgically implanted into the dece-
dent’s chest a cardiac defibrillator (defibrillator), a pro-
grammable device that was designed to pace the heart
and shock it when an arrhythmia occurred. The defen-
dant also prescribed the medication Toprol, a beta-
blocker.4 Upon discharge from the Hospital of St.
Raphael, the decedent received oral instructions not
to engage in vigorous activity, although there was no
written documentation either in the progress notes or
in the April 20, 2007 discharge summary regarding any
restriction on the types of activities or exercise in which
he could participate.
Prior to his death, the decedent had numerous inter-
actions with medical professionals, particularly after
he received shocks from his defibrillator. These events
occurred after the decedent engaged in various types
of activity or exercise. None of the physicians placed
any documentation in the decedent’s medical record
indicating that he was to refrain from or restrict his
exercise regimen. The first such incident occurred on
April 30, 2007, and resulted in the defendant ordering
a stress test to be completed in one to two weeks and
an increase of his Toprol dosage. The second incident
occurred on May 28, 2007, after which the decedent
was taken to Elmhurst Hospital in New York and exam-
ined by Artie Shah, an electrophysiologist. Shah was
told that the decedent suffered from IVT, and changed
his medication from Toprol to Sotalol, a potassium
channel blocker that has weak beta-blocking effects
and is not known to be effective in preventing the risk
of sudden cardiac death. The defendant was notified
of this incident in New York and the resulting hospital-
ization, and approved of the medication change.
On June 8, 2007, the decedent experienced heart pal-
pitations at work and was taken to St. Vincent’s Hospital
in Bridgeport. The decedent was seen by a Jeffrey Ber-
man, a cardiologist. The decedent told Berman that he
was running between five and seven miles daily. Ber-
man consulted by telephone with the defendant, and
together, they decided to increase the decedent’s Sota-
lol dosage.
On June 11, 2007, the decedent visited the defendant
in his office. At that time, the defendant had the result
of the stress test that had been ordered, the records
from St. Vincent’s Hospital, and a printout of all the
recorded activity from the decedent’s defibrillator.
From the time that the defibrillator was implanted on
April 20, 2007, until June 11, 2007, the decedent had
twenty-six recorded episodes of ventricular tachycar-
dia. After this office visit, the defendant wrote a three
page report. This report detailed the decedent’s exer-
cise regime, but did not discuss any limitations on his
activity. On June 18, 2007, the defendant provided a note
to the decedent to give to his employer that released him
to work full duty and did not provide for any restriction
or limitation on his activities. On June 25, 2007, the
decedent died while exercising on a treadmill in his
home. At this point in time, the decedent was taking
Sotalol, not Toprol, and the shocks given by his defibril-
lator did not restore normal rhythm to his heart.
The plaintiff brought this action on July 10, 2009, and
a jury trial was held in June and July of 2013. The
plaintiff and the defendants each put on expert wit-
nesses, who disagreed on the proper diagnosis of the
decedent. The plaintiff’s expert witness, Heather
Bloom, a cardiologist and electrophysiologist, testified
that the decedent’s diagnosis of rapid cardiac rhythm,
caused by an electrical abnormality of the heart, can
be fatal without proper treatment and lifestyle changes.
Further, Bloom stated that, in her expert opinion, the
decedent suffered from CPVT, a rare cardiac arrhythmia
triggered by adrenaline that carries with it a high risk
of sudden cardiac death. Accordingly, Bloom testified
that the defendant’s decision not to diagnose the dece-
dent with CPVT fell below the standard of care. In
Bloom’s opinion, ‘‘the diagnosis of CPVT or the possibil-
ity of CPVT is important for anyone to understand that
this is an adrenaline-triggered arrhythmia and they need
to avoid adrenaline. What that comes down to really is
avoiding heavy activity in sports. And it seems to be
very clear that although the possibility exists for medi-
cines to control it, until it’s very clearly documented
the medicines are there, that they are functioning, that
the arrhythmia is not happening, there is a risk of sud-
den death and it’s critical to avoid exertion until that’s
under control and clarified.’’
The defendants’ expert witness, Peter Zimetbaum, a
cardiologist and electrophysiologist, testified that the
decedent did not suffer from CPVT, but, instead, he
suffered from IVT, a more benign disease. At trial, the
defendant testified that he considered the diagnosis of
CPVT, but instead came to the diagnosis of IVT without
conducting genetic testing for CPVT. Zimetbaum opined
that the defendant’s actions were within the applicable
standard of care.
On July 12, 2013, the court held a charge conference
to discuss a draft of the proposed jury charge, which
previously had been provided to the parties. Both par-
ties objected to the proposed charge and submitted
written exceptions to the charge.5 On July 15, 2013, the
charge was given to the jury and on July 16, 2013, the
jury returned a verdict in favor of the defendants. On
July 19, 2013, the plaintiff filed a motion to set aside
the verdict, which, among other things, claimed that
the jury interrogatory and instructions on proximate
cause were improper. The motion was denied by the
trial court in a December 20, 2013 memorandum of
decision. The plaintiff then filed this appeal. Additional
facts will be set forth as necessary.
The plaintiff’s claims on appeal are inextricably inter-
twined, and, therefore, we discuss them together. First,
the plaintiff claims that the court provided a legally
incorrect interrogatory to the jury that affected the
jury’s verdict. Second, she claims that the court improp-
erly charged the jury on the doctrine of causation as
applied to this case. When taken in conjunction with one
another, the plaintiff argues that the court committed
reversible error. We agree with the plaintiff.
The following additional facts are relevant to the
discussion of the plaintiff’s claims. On July 12, 2013,
the court held a lengthy charge conference to discuss
the draft jury charge, which previously had been pro-
vided to the parties, as well as proposed interrogatories.
The proposed interrogatories, as read out loud during
the charge conference, were as follows: ‘‘[N]umber one,
did the defendants . . . breach the standard of care
in one or more of the pleas alleged in the plaintiff’s
complaint, yes or no? If you answer—if your answer is
no you will proceed no further and enter verdict for
the defendants. If your answer [is] yes then proceed to
question two. Two, was the [defendants’] deviation from
the standard of care a proximate cause of [the dece-
dent’s] death, yes or no? If [your] answer is no you will
proceed no further and enter verdict for the defendants.
If your answer is yes then you would enter verdict for
the plaintiff and determine the amount of damages.’’
(Emphasis added.) The court stated that a copy of these
interrogatories would be given to the parties ‘‘in actual
interrogatory form’’ at the conclusion of the court ses-
sion on that day.
During the charge to the jury on July 15, 2013, the
court vacillated between stating (1) that the plaintiff
had the burden to prove that the defendant was ‘‘the
proximate cause’’ of the decedent’s death, and (2) that
the plaintiff had the burden to prove that the defendant
was ‘‘a proximate cause’’ of the decedent’s death. At
one point during the charge, the court used the terms
‘‘the proximate cause’’ and ‘‘a proximate cause’’ in suc-
cessive sentences.6
The court charged the jury in relevant part: ‘‘If you
find, by a fair preponderance of the evidence, that the
negligence—that the alleged negligence of the defen-
dants . . . was the proximate cause of the death of
[the decedent], you must then go on to consider the
issue of damages. Please remember that if you find that
the plaintiff has failed to prove that the defendants
were negligent or that their negligence was a proximate
cause of the death of [the decedent], you do not need
to reach the issue of damages.’’ (Emphasis added.)
Moreover, on July 15, 2013, before closing arguments,
the court stated that it provided copies of the verdict
form and interrogatories to counsel.7 Counsel for both
parties were told by the court that the interrogatories
were the same as those read aloud at the Friday, July
12, 2013 charge conference. The final interrogatories
given to the jury, however, differed from the ones dis-
cussed at the charge conference because ‘‘the proxi-
mate cause’’ was substituted for ‘‘a proximate cause’’
in the second interrogatory. This change, by its use of
the definite article ‘‘the’’ rather than the indefinite arti-
cle ‘‘a,’’ effectively required the jury to answer whether
the defendant’s breach of the standard of care was the
proximate cause of the decedent’s death, meaning sole
or only cause of the decedent’s death, rather than a
proximate cause, meaning one of the several contribut-
ing causes. The jury’s responses to the interrogatories
reveal that it found the defendants to have breached
the standard of care, but did not find that the defendants
were the sole proximate cause of the decedent’s death.
Next, we set forth the appropriate standard of review.
‘‘The power of the trial court to submit proper interroga-
tories 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
mandatory enactment, it is within the reasonable discre-
tion 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.) Sola v. Wal-Mart Stores, Inc., 152 Conn. App.
732, 750, 100 A.3d 864, cert. denied, 314 Conn. 941, 103
A.3d 165 (2014).
‘‘Our standard of review concerning claims of instruc-
tional error is well settled. [J]ury instructions must be
read as a whole and . . . are not to be judged in artifi-
cial isolation from the overall charge. . . . The whole
charge must be considered from the standpoint of its
effect on the jurors in guiding them to a proper verdict
. . . . The trial court must adapt its instructions to the
issues raised in order to give the [jurors] reasonable
guidance in reaching a verdict and not mislead them.’’
(Internal quotation marks omitted.) Stratek Plastic Ltd.
v. Ibar, 145 Conn. App. 414, 417, 74 A.3d 577, cert.
denied, 310 Conn. 937, 79 A.3d 890 (2013).
In Barksdale v. Harris, 30 Conn. App. 754, 622 A.2d
597, cert. denied, 225 Conn. 927, 625 A.2d 825 (1993),
the trial court, in a supplemental charge to the jury,
misread the interrogatory as ‘‘ ‘the proximate cause’ ’’
rather than ‘‘ ‘a proximate cause.’ ’’ Additionally, in that
case, the court improperly charged the jury when ‘‘with
rare exception . . . [it] referred to ‘the proximate
cause’ throughout the charge and the supplemental
charge,’’ rather than ‘‘ ‘a proximate cause.’ ’’ Id., 758.
Due to the recurrence of the error, this court held that
the jury instruction, as a whole, signified ‘‘more than a
mere technicality.’’ Id. In doing so, this court concluded
that a new trial was required because ‘‘[t]he difference
could have had a deleterious effect on the jurors’ ability
to reach a proper verdict. The jurors could have been
misled into thinking that the defendants’ negligence had
to be the sole proximate cause of the plaintiff’s injuries
in order to find the defendants liable.’’ Id.The facts of the present case warrant the same result.
Here, due to a presumed typographical error, the jury
filled out a legally incorrect interrogatory. In Barksdale,
the trial court merely misread the interrogatory during
the supplemental charge; there was a legally correct
interrogatory before the jury, and yet this court
remanded that case for a new trial. In the present case,
the error was worse: the jury had before it a legally
incorrect interrogatory. ‘‘The primary purpose of an
interrogatory is to elicit a determination of material
facts and to furnish the means of testing the correctness
of the verdict rendered.’’ Willametz v. Guida-Seibert
Dairy Co., 157 Conn. 295, 301, 254 A.2d 473 (1968).
Here, because the interrogatory was legally incorrect,
there is no way to test the correctness of the verdict.
This problem was exacerbated by the jury charge in
which the trial court alternated between references to
‘‘the’’ proximate cause and ‘‘a’’ proximate cause, which
we discuss next.
The plaintiff claims that the court improperly charged
the jury on the doctrine of causation as it applies to
this case. Specifically, the plaintiff claims that the jury
charge as to proximate cause, when read in conjunction
with the erroneous jury interrogatory, gave the jury
‘‘the misleading impression that it had to find that [the
defendants’] breach of the standard of care was the sole
proximate cause of [the decedent’s] death.’’ We agree.
In the present case, we conclude that that the jury was
misled by the charge. Reviewing the jury instructions as
a whole, we are cognizant that there were only two
instances in which the court said ‘‘the proximate cause’’
during the jury charge. The effect of those misstate-
ments, however, was compounded by the fact that the
interrogatory also misstated the legal standard as to
proximate cause. Given the potential for confusion and
uncertainty created by the court’s use of conflicting
terms, we are not convinced that the court gave the
jury reasonable guidance in reaching its verdict.
The defendant relies on Phelps v. Lankes, 74 Conn.
App. 597, 813 A.2d 100 (2003), to explain why the jury
instruction was not improper. In Phelps, this court
reviewed a single instance during the jury charge in
which the trial court improperly charged on the doctrine
of causation. Id., 600. This court in Phelps articulated
how on two occasions following the improper instruc-
tion, the court instructed the jury properly, eventually
coming to the determination that ‘‘[d]espite the chal-
lenged instruction, the court’s charge as a whole was
not improper.’’ Id., 603. We are not persuaded by the
defendants’ argument, and believe that the present case
is more akin to Barksdale than to Phelps.
Although in the present case, there were only two
instances in the charge to the jury that were improper,
as we previously indicated, those errors were exacer-
bated by an interrogatory completed by the jury that
also contained the improper standard for proximate
cause. Unlike in Phelps, which involved only one
instance of an improper instruction, the jury charge in
the present case was likely to have had a deleterious
effect, confusing the jury as to what the appropriate
standard was for proximate cause. Further, unlike in
Barksdale, where the jury had a legally correct interrog-
atory, in the present case it did not. On the basis of the
compound nature of the errors involved in the present
case, we conclude that the court committed reversible
error because it is likely that the jury was misled.
The judgment is reversed and the case is remanded
for a new trial.
In this opinion the other judges concurred.
1
For convenience, references in this opinion to the defendant in the
singular are to Mark Blitzer and references to the defendants in the plural
are to both Blitzer and Arrhythmia Center of Connecticut.
2
The plaintiff also claims that the court abused its discretion by failing
to set aside the verdict because it is contrary to applicable law and to the
trial evidence. Because we reverse the judgment of the trial court on the
plaintiff’s other claims and remand for a new trial, we do not reach this
additional claim.
3
Tachycardia is defined as ‘‘[r]apid beating of the heart, conventionally
applied to rates over 90 beats per minute.’’ Stedman’s Medical Dictionary
(28th Ed. 2006) p. 1931. Ventricular tachycardia is ‘‘paroxysmal [tachycardia]
originating in an ectopic focus in the ventricle.’’ Id.
4
The jury had evidence before it that beta-blockers suppress adrenaline
and are a primary treatment for preventing occurrences of ventricular
arrhythmias.
5
The defendants argue that the plaintiff waived any claim of error with
respect to the charge on causation in this appeal because the plaintiff’s
counsel explicitly agreed to the charge and the interrogatories before the
verdict. We disagree. The court, after a lengthy charge conference, was asked
by the defendants’ counsel whether it was necessary to repeat exceptions to
the charge. The court replied that the parties did not need to repeat any
exceptions to the charge that were already stated.
Throughout the charge conference, both parties took numerous excep-
tions to the charge. In particular, there was a discussion between the parties
in regards to proximate cause and multiple causes, and the court eventually
indicated on the record that she was likely to remove the charge on multiple
causes from the final charge to the jury. Moreover, the charge that was read
aloud to the jury differed from the charge discussed during the charge
conference as to proximate cause. The charge that was read to jury used
the terms ‘‘the proximate cause’’ and ‘‘a proximate cause’’ interchangeably.
Although on July 15, 2013, the plaintiff’s counsel did not object at the
conclusion of the charge, after the court had stated ‘‘the proximate cause’’
on two occasions, that omission does not amount to a waiver of instructional
error given that the plaintiff submitted a request to charge. Practice Book
§ 16-20 provides in relevant part: ‘‘An appellate court shall not be bound to
consider error as to the giving of, or the failure to give, an instruction unless
the matter is covered by a written request to charge or exception has been
taken by the party appealing immediately after the charge is delivered. . . .’’
Nevertheless, ‘‘[i]t is well settled . . . that a party may preserve for appeal
a claim that an instruction . . . was . . . defective either by: (1) submitting
a written request to charge covering the matter; or (2) taking an exception
to the charge as given. . . . Thus, the essence of the preservation require-
ment is that fair notice be given to the trial court of the party’s view of the
governing law and of any disagreement that the party may have had with
the charge actually given.’’ (Citations omitted; emphasis in original; footnote
omitted; internal quotation marks omitted.) Lin v. National Railroad Pas-
senger Corp., 277 Conn. 1, 13, 889 A.2d 798 (2006).
On July 8, 2013, the plaintiff submitted to the court a written request to
charge that relied in relevant part on the standard Connecticut Civil Jury
Instructions, including the instructions regarding: (1) proximate cause, as
set forth in instruction 3.1-3; (2) proximate cause—substantial factor, as set
forth in instruction 3.1-4; and (3) proximate cause—multiple causes, as
set forth in instruction 3.1-5. The standard civil jury instruction regarding
proximate cause states: ‘‘Negligence is a proximate cause of an injury if it
was a substantial factor in bringing the injury about.’’ (Emphasis added.)
Connecticut Civil Jury Instructions (4th Ed. 2008), instruction 3.1-3, available
at http://www.jud.ct.gov/JI/civil/part3/3.1-3.htm (last visited May 1, 2015).
Therefore, because the plaintiff submitted these requests to charge, this
claim is properly preserved for review by this court.
6
At the completion of the jury charge, neither party objected on the basis
that the court interchangeably used the terms ‘‘a proximate cause’’ and ‘‘the
proximate cause.’’
7
Specifically, the court stated: ‘‘And I did give Attorney Douthat the verdict
forms and the interrogatories. Did you see those? . . .
‘‘Take a look at them, please. . . .
‘‘[T]hose are the actual copies. It was what you all gave me and I showed
you the interrogatories also on Friday [July 12, 2013].’’