58 Conn. App. 731

MICHELE GILBERT v. MIDDLESEX HOSPITAL ET AL.

(AC 19172)

Mihalakos, Pellegrino and Daly, Js.

*732Submitted on briefs April 5

officially released July 11, 2000

Ikechukwu Umeugo filed a brief for the appellant (plaintiff).

Donna R. Zito filed a brief for the appellees (defendants).

Opinion

DALY, J.

The plaintiff, Michele Gilbert, appeals from the judgment rendered by the trial court following a jury verdict in favor of the defendants, Robert A. Yordan and Middlesex Obstetrical and Gynecological Associ*733ates, P.C. (Middlesex Obstetrical). The plaintiff claims that the court improperly (1) failed to instruct the jury on the doctrine of res ipsa loquitur, (2) denied her motion for summary judgment and (3) instructed the jury on the use of common sense. The plaintiff also claims that the evidence does not support the jury’s verdict. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the resolution of this appeal. The plaintiff filed a seven count complaint dated April 1, 1996, against Middlesex Hospital and Middlesex Obstetrical, and against Robert A. Yordan, Kenneth L. Eckhart, Deborah A. Mueller and Donald E. Miller, as associates and physician employees of Middlesex Obstetrical. The plaintiff claimed that on August 1, 1995, Yordan performed a procedure known as an episiotomy on the plaintiff and delivered the plaintiff’s daughter. The plaintiff alleged that Yordan left a sponge in her vagina after the delivery of her baby and that this sponge was not removed until August 16,1995. The complaint alleged negligence against all defendants and res ipsa loquitur against Mid-dlesex Hospital, Yordan and Middlesex Obstetrical. The plaintiff filed a motion for summaiy judgment dated July 11, 1996.

The plaintiff filed a revised complaint, dated August 5, 1997, containing five counts alleging negligence on the part of the aforesaid defendants. In the revised complaint, there were no allegations of res ipsa loquitur. On November 24, 1998, the plaintiff withdrew the complaint against the named defendant Middlesex Hospital. On December 10, 1998, the court denied the plaintiffs motion for summary judgment. On December 15, 1998, the plaintiff withdrew the complaint against Miller, Eck-hart and Mueller. The case proceeded to trial against the remaining defendants, Yordan and Middlesex Obstetrical. The jury returned a verdict in favor of Yor-dan and Middlesex Obstetrical. The plaintiff then filed the present appeal.

*734I

The plaintiff first claims that the court improperly failed to instruct the jury on the doctrine of res ipsa loquitur. “Whether the doctrine of res ipsa loquitur applies in a particular case is a question of law over which our review is plenary. Giles v. New Haven, 228 Conn. 441, 447, 636 A.2d 1335 (1994).” Barretta v. Otis Elevator Co., 242 Conn. 169, 171, 698 A.2d 810 (1997).

We initially note that the plaintiff has failed to comply with Practice Book § 67-4 (d) (l)1 in that she has failed to provide us with a copy of a request to charge on res ipsa loquitur or an exception to the charge given by the court. We conclude, however, that a charge on res ipsa loquitur was not warranted based on the pleadings and evidence admitted at trial.

“A complaint must fairly put the defendant on notice of the claims of negligence against him. . . . The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise. . . . Only those issues raised by the plaintiffs in the latest complaint can be tried before the jury.” (Citations omitted.) Farrell v. St. Vincent’s Hospital, 203 Conn. 554, 557-58, 525 A.2d 954 (1987). As stated previously, the plaintiffs revised complaint dated August 5, 1997, omitted any allegations concerning the doctrine of res ipsa loquitur.

At trial, the plaintiff introduced direct evidence through the testimony of Ralph Epstein, a physician, concerning Yordan’s alleged acts of negligence. “[A] res *735ipsa loquitur instruction is not appropriate where the plaintiff is not relying solely on circumstantial evidence, but instead alleges and introduces into evidence specific acts of negligence by the defendant.” Pineau v. Home Depot, Inc., 45 Conn. App. 248, 258, 695 A.2d 14 (1997), appeal dismissed, 245 Conn. 422, 713 A.2d 825 (1998) . “The doctrine of res ipsa loquitur, literally the thing speaks for itself, permits a jury to infer negligence when no direct evidence of negligence has been introduced.” (Internal quotation marks omitted.) Barretta v. Otis Elevator Co., supra, 242 Conn. 173.

Because the amended complaint contained no allegations concerning res ipsa loquitur, and because the plaintiff offered direct evidence of the defendants’ negligence at trial, an instruction on res ipsa loquitur was not warranted.

II

The plaintiff next claims that the court improperly denied her motion for summary judgment. We note, however, that “absent exceptional circumstances, a denial of a motion for summary judgment is not appeal-able where a full trial on the merits produces a verdict against the moving party.” (Internal quotation marks omitted.) Gurliacci v. Mayer, 218 Conn. 531, 541 n.7, 590 A.2d 914 (1991). From a review of the record, we conclude that this case does not represent an exceptional circumstance that would justify reviewing on appeal a denial of a motion for summary judgment.

III

The plaintiff next claims that the court improperly instructed the jury on the use of common sense. The plaintiff has failed to comply with Practice Book § 67-4 (d) (2)2 in that she has not provided us with a copy of *736the relevant portions of the charge and any exceptions taken to the charge. Because the plaintiff has failed to satisfy her burden of providing an adequate record for review, we decline to review this claim.* * 3

IV

The plaintiffs final claim is that the evidence does not reasonably support the jury’s verdict.4 We disagree.

“[I]t is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence . . . rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury’s verdict .... Purzycki *737v. Fairfield, 244 Conn. 101, 112-13, 708 A.2d 937 (1998). In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable.” (Emphasis in original; internal quotation marks omitted.) Gaudio v. Griffin Health Services Corp., 249 Conn. 523, 534, 733 A.2d 197 (1999).

Although the plaintiff presented the testimony of Epstein, a medical expert, in support of her claim of negligence, the defendants presented two medical expert witnesses, Mary Jane Minkin and Benson J. Horowitz, to counter the plaintiffs claim. Minkin and Horowitz each testified that reasonably prudent physicians can perform careful examinations following a vaginal delivery and repair of an episiotomy and nevertheless fail to detect a piece of gauze used in the surgical procedure. The trier may rely more heavily on the testimony of one expert rather than the testimony of another. 2 B. Holden & J. Daly, Connecticut Evidence (2d Ed. 1988) § 118c, p. 1146.

The judgment is affirmed.

In this opinion the other judges concurred.

Gilbert v. Middlesex Hospital
58 Conn. App. 731

Case Details

Name
Gilbert v. Middlesex Hospital
Decision Date
Jul 11, 2000
Citations

58 Conn. App. 731

Jurisdiction
Connecticut

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