Ashmore v. Hartford Hospital
Ashmore v. Hartford Hospital
Opinion of the Court
*258**779In this wrongful death action alleging medical malpractice, the named defendant, Hartford Hospital,
The following facts, which the jury reasonably could have found, and procedural history are relevant to our disposition of this appeal. In 2011, the decedent visited the defendant hospital for routine elective heart surgery. The surgery was completed successfully and without complication. During the procedure, the surgeon connected standard epicardial pacing electrodes to the decedent's heart to assist with heart rate and rhythm management in the event that he should experience any postoperative complications. In the case of an abnormal rhythm, such wires can be quickly and easily connected to a system that provides a small electrical stimulation to return the heartbeat to its normal rhythm.
The decedent initially recovered well, but, during the second night at the hospital following the operation, he began to experience atrial fibrillation, a common postoperative condition. Over the course of the next hour, his heart rate dropped precipitously, he displayed various signs of serious distress, and alarms repeatedly sounded. Although this was precisely the condition for which the epicardial wires had been installed, hospital staff failed to connect the wires or to contact the decedent's surgeon until after the decedent had experienced cardiac arrest. Hospital staff ultimately were able to **781restart his heart using electrical shock, but the lack of a heartbeat for seventeen minutes resulted in oxygen deprivation so severe that the decedent had to be placed on life support. He never regained consciousness. Several days later, with no reasonable possibility that her husband of forty-five years would recover, the plaintiff was forced to make the agonizing decision to terminate the decedent's life support. He died moments later.
The plaintiff filed the present action, alleging wrongful death in her capacity as executor of the decedent's estate, and loss of spousal consortium in her individual capacity. The case was tried to a jury, which returned a verdict for the plaintiff. The jury found that the negligence of the defendant's employees was the proximate cause of the decedent's death and awarded the decedent's estate approximately $ 75,000 in economic damages and $ 1.2 million in noneconomic damages. The jury also *259awarded the plaintiff $ 4.5 million in damages for loss of consortium.
The defendant then filed a motion seeking a remittitur of the loss of consortium award pursuant to General Statutes §§ 52-216a and 52-228c, and Practice Book § 16-35. The trial court denied the motion and rendered judgment in accordance with the jury verdict. The defendant appealed from the judgment of the trial court to the Appellate Court, and we transferred the appeal to this court pursuant to General Statutes § 51-199 (c) and Practice Book § 65-1. Additional facts will be set forth as necessary.
I
As an initial matter, we address the parties' disagreement as to the standard that governs appellate review of a trial court's decision to grant or deny a motion for remittitur. The plaintiff, relying on cases such as Munn v. Hotchkiss School ,
A
As we explained in Saleh v. Ribeiro Trucking, LLC ,
Also relevant to our review is § 52-216a, which provides the general statutory authority for remittitur. That statute provides in relevant part that, "[i]f the court at the conclusion of the trial concludes that the verdict is excessive as a matter of law , it shall order a remittitur and, upon failure of the party so ordered to remit the *260amount ordered by the court, it shall set aside the verdict and order a new trial...." (Emphasis added.) General Statutes § 52-216a.
With respect to appellate review, in Saleh , we explained that "our review of the trial court's decision [to grant or deny remittitur] requires careful balancing." Saleh v. Ribeiro Trucking, LLC , supra,
**784Even under this deferential standard of review, however, we have not shied away from ordering remittitur when the record failed to support the jury's award of damages. Indeed, "[t]his court has a long history of ordering plaintiffs to accept a remittitur or [to] submit to a new trial." Earlington v. Anastasi ,
B
The defendant does not dispute that we have, in most instances, reviewed decisions to grant or deny remittitur according to this deferential standard of review. Nevertheless, the defendant emphasizes that the legislature has determined that remittitur should be granted only when a verdict is deemed to be "excessive as a matter of law"; General Statutes § 52-216a ; accord General Statutes § 52-228c ;
For the following reasons, we reject the defendant's argument that the use of the phrase "excessive as a matter of law" in §§ 52-216a and 52-228c evinces a legislative intent to abrogate the common law and to prescribe a de novo standard of review of remittitur decisions. First, the defendant's argument reflects a misunderstanding of the concept of a "matter of law" or "question of law," as those expressions are used in the context of appellate review. This court is authorized to find facts only under a few limited circumstances in which we have original jurisdiction, such as in cases challenging the reapportionment of state electoral districts; see Conn. Const. amend. XXVI (d); and challenges to the rulings of election officials in connection with certain federal elections. See General Statutes § 9-323. In all other matters, our authority is limited to the correction of alleged legal errors. See, e.g., General Statutes § 52-263 ; Morgan v. Morgan ,
Indeed, long before the enactment of § 52-216a, this court explained that, although the question of whether an award of damages is excessive is one of law, we will review a trial court's determination thereof only for an abuse of discretion. E.g., Nash v. Hunt ,
*262("[i]t cannot be held, as a matter of law, that the jury's award does not fall within the necessarily uncertain limits of just damages or that the court abused its discretion in refusing to set aside the verdict as inadequate"). Accordingly, because § 52-216a merely codified the pre-existing common-law standards; see, e.g., Wichers v. Hatch ,
**787("[although] the legislature's authority to abrogate the common law is undeniable, we will not lightly impute such an intent to the legislature" [internal quotation marks omitted] ).
Moreover, the fact that this court has continued to apply the traditional standard of review to remittitur decisions for more than thirty-five years since the enactment of § 52-216a, with the acquiescence of the legislature, provides further support for the conclusion that the statute was not intended to impose a de novo standard of appellate review. "[I]n evaluating the force of stare decisis, our case law dictates that we should be especially wary of overturning a decision that involves the construction of a statute.... When we construe a statute, we act not as plenary lawgivers but as surrogates for another policy maker, [that is] the legislature. In our role as surrogates, our only responsibility is to determine what the legislature, within constitutional limits, intended to do. Sometimes, when we have made such a determination, the legislature instructs us that we have misconstrued its intentions. We are bound by the instructions so provided.... More often, however, the legislature takes no further action to clarify its intentions. Time and again, we have characterized the failure of the legislature to take corrective action as manifesting the legislature's acquiescence in our construction of a statute.... Once an appropriate interval to permit legislative reconsideration has passed without corrective legislative action, the inference of legislative acquiescence places a significant jurisprudential limitation on our own authority to reconsider the merits of our earlier decision." (Internal quotation marks omitted.) Spiotti v. Wolcott ,
The argument of legislative acquiescence is especially compelling with respect to the remittitur statutes. The legislature amended § 52-216a in 1982 to include the "excessive as a matter of law" language. Public Acts **7881982, No. 82-406, § 3 (P.A. 82-406). Over the following two decades, this court decided numerous cases in which we continued to deferentially review additur and remittitur decisions governed by § 52-216a. See, e.g., Gladu v. Sousa ,
II
We turn next to the substance of the defendant's claim. For the reasons set forth hereinafter, we agree with the defendant that a spousal loss of consortium award in a wrongful death action presumptively should not be substantially greater than the wrongful death award
A
We begin by briefly reviewing the history of and modern rules governing loss of spousal consortium claims. "The loss of consortium action had its genesis in early Roman [l]aw, when the paterfamilias, or head of the household, had an action for violence committed against his wife, children or slaves on the theory they were so identified with him that the wrong was to himself. By the [t]hirteenth [c]entury, the common law had adopted the idea in part, altering it to a damage[s] action for loss of services of the servant because of violence. By the early [s]eventeenth [c]entury in England, since the station of a wife under early common law was that of a valuable servant of the husband who could not sue in her own name, the action was extended to include the loss of her domestic services. Over the years, emphasis shifted away from loss of services toward a recognition of the intangible elements of domestic relations, such as companionship and affection." Taylor v. Beard ,
*265It was not until 1950, more than one century after a majority of states had enacted married women's property acts, that the first American court held that, in view of the modern legal equality of wife and husband in the marital relationship, a woman was permitted to bring a claim against a tortfeasor for the negligent deprivation of her husband's consortium. Hitaffer v. Argonne Co. ,
**792Hopson v. St. Mary's Hospital ,
It was not until 1979, in Hopson , that we reversed course, overruled Marri , and held that either husband or wife (deprived spouse) may bring a claim for loss of consortium arising from a personal injury to the other spouse (impaired spouse) caused by the alleged negligence of a third person (tortfeasor). Hopson v. St. Mary's Hospital , supra,
First, we acknowledged in Hopson that there was a risk that recognizing a cause of action for loss of spousal consortium that was divorced from the traditional marital paradigm under which it had originated could lead to "double recover[ies]" and other "improper verdicts" grounded in the "remote and indirect nature of the consortium injury ...." Id., at 491, 494,
Second, in Hopson , this court retained the traditional taxonomy of loss of consortium damages. We recognized that recovery is possible both for loss of the household services performed by the impaired spouse and for the various "intangible" or "sentimental" blessings of marriage, including sexual relations, affection, society, companionship, and moral support. (Internal quotation marks omitted.) Hopson v. St. Mary's Hospital , supra,
Finally, we note that, with respect to the period of time over which loss of consortium damages may accrue, "[a]t common law, a spouse's right to recover damages for loss of consortium was strictly limited to the period of the marriage itself. Once the injured person died from his injuries, the right of his spouse to recover damages for loss of consortium as a result of those injuries was cut off, in the sense that no damages could be awarded for any of her postmortem losses.... With the enactment of General Statutes § 52-555a, however, the bar to recovering damages for postmortem loss of consortium was abrogated.... Under [that] statute, the surviving spouse of an injured person who dies as a result of tortiously inflicted injuries can now recover damages from the tortfeasor for any loss of consortium she has suffered or will probably suffer as a direct and proximate result of her spouse's wrongful death. Logically, the only temporal limitation [on] the surviving spouse's right to recover damages for postmortem loss of consortium is the period of time in which the plaintiff and her deceased spouse would probably have continued to live together as a married couple, enjoying each other's companionship, society and support, were it not for the defendant's tortious conduct." (Citations omitted.) Blake v. Neurological **795Specialists, P.C. , Superior Court, judicial district of Waterbury, Complex Litigation Docket, Docket No. X02-CV-94-0155265-S (May 9, 2003). In the present case, the jury reasonably could have found that, but for the defendant's negligence, the decedent would have lived as long as fifteen additional years. Accordingly, both the wrongful death and *267the loss of consortium awards may be presumed to span a fifteen year period.
B
In the present case, the defendant does not deny that the plaintiff, following the sudden and tragic loss of her husband of forty-five years, suffered a substantial loss of consortium. Rather, the challenge is to the disparity between the $ 1.2 million wrongful death award to the decedent's estate and the $ 4.5 million loss of consortium award that the jury awarded to the plaintiff. It is the defendant's position that this disparity, which implies that the plaintiff's loss of her spouse was $ 3.3 million, or 275 percent, more devastating than was his complete and total loss of all of life's enjoyments, is fundamentally irrational and must, therefore, have been the result of improper sympathy, partiality, or prejudice.
To explain why this result is irrational, the defendant posits that happy marriages are all alike, insofar as the companionship, support, intimacy, and love shared by a husband and wife
We question whether matrimonial bliss necessarily involves such parities, either as a matter of definition or of experience. One could imagine a successful marriage that nevertheless is asymmetrical in one respect or another. Still, we need not fully embrace an Anna Karenina model of marriage
*268Excessiveness and Adequacy of Damages Awarded for Noneconomic Loss Caused by Personal Injury or Death of Spouse,"
**797And, in fairness, the defendant does not ask us to adopt a rigid, bright-line rule to the effect that a loss of consortium award never can exceed the compensation for the underlying spousal injury. Rather, the proposal is simply that we apply a presumption that a direct injury to one spouse is no less harmful, everything considered, than the concomitant loss of consortium suffered by the deprived spouse, insofar as the impaired spouse ordinarily will experience more or less comparable losses of physical and emotional affection, in addition to being the one who suffers all of the direct effects of the injury itself. That presumption can be overcome, however, by evidence that the marriage was an unequal one, in which the deprived spouse relied more heavily on the support of or derived far more satisfaction than the impaired spouse, or that the impaired spouse somehow had less to lose. See, e.g., Kingman v. Dillard's, Inc. , supra,
That rule, which strikes us as eminently reasonable, has been applied by courts both in Connecticut and in other jurisdictions. See, e.g., Kingman v. Dillard's, Inc. , supra,
In adopting this rule, we recognize that loss of consortium damages, by their nature, defy any precise mathematical *269computation. See Shegog v. Zabrecky ,
C
Because the trial court in the present case did not have the benefit of the guidance that we have provided herein and, therefore, did not apply this presumption, on review, we simply consider whether there was sufficient evidence pursuant to which a reasonable jury could have found that such a disparity was justified. The evidence of the plaintiff's loss of consortium, although certainly sufficient to warrant a significant award, was relatively scant. Such evidence was limited to brief and largely conclusory testimony by the plaintiff herself and by her daughter, Sherri Capaldo, regarding the plaintiff's relationship with the decedent.
As we noted, loss of consortium damages may be broadly segmented into household services and the more intangible or sentimental aspects of a marriage. See, e.g., 3 Restatement (Second), Torts § 693 (1), p. 495 (1977). With respect to household services, the plaintiff and Capaldo testified that the decedent performed all of the repairs on their home, maintained the boat that they kept at their vacation cottage, and made annual improvements to the cottage, such as adding a hearth, fireplace, and bar. The plaintiff also indicated that the decedent was able to fix the refrigerator and stove, and was skilled at mechanical, plumbing, electrical, concrete, and wood work, but that she "took care of the **800house." She further testified that, following the decedent's death, she had to plow the snow. Beyond that, there was no evidence by which the jury could have assessed and quantified what specific chores and household services the decedent performed, how much time he spent performing such chores, the financial or replacement value of his contributions, or the burden that the plaintiff now faces in having either to perform the chores herself or to hire someone else to perform them. It has been suggested that, to recover for such losses, "the [deprived spouse] must demonstrate the reasonable cost of hiring help to perform those household services formerly contributed by [the impaired spouse]. It is not enough to merely state that the [impaired spouse's] services have been diminished ...." (Footnote omitted.) M. McLaughlin, supra, 10 Am. Jur. Proof of Facts 3d 125, § 14; see also id., 126 (market value of lost services may be proved by expert testimony). In the present case, no evidence was presented from which the jury could have concluded that the plaintiff's loss was somehow atypical, let alone to support a multimillion dollar verdict that was well in excess of the underlying wrongful death award.
Turning next to the intangible, sentimental side of the ledger, we note that no *270evidence was presented at trial regarding several of the most fundamental aspects of married life. For example, several courts have indicated that a predominant element of a loss of spousal consortium claim is the diminution or loss of the sexual relationship and/or physical affection. See, e.g., Ossenfort v. Associated Milk Producers, Inc. ,
When the plaintiff did open a broader window into her life with her late husband, her testimony raised more questions than it answered, calling into question not only the couple's intimacy but also the quantity, if not the quality, of the time they spent together. There was extensive testimony, for example, suggesting that the decedent had been a workaholic. The plaintiff testified that the garage where he worked "meant everything to [him]," that he worked seven days per week and rarely took family vacations, and that, most days, he rose early, went straight to work, worked until between 8 and 11 p.m., and then, upon returning home, often proceeded to eat, shower, and go to bed. When asked to list the decedent's two or three favorite places to spend his time, the plaintiff responded "Two or three? ... The garage, the cottage ... [and] home."
Capaldo's testimony was consistent with that of the plaintiff. She indicated that her father had been a very hard worker who spent a lot of time at the garage and was constantly tinkering or working on projects, even when on vacation at the family cottage.
When asked about the decedent's hobbies, the plaintiff indicated that he enjoyed attending car shows with **802his friends, cutting wood, and snow and jet skiing. Although the jury might reasonably have understood her testimony to mean that she had joined the decedent in his boating and jet skiing activities and had once accompanied him to an auto race, the plaintiff testified that she was not a snow skier, and there was no indication that she attended the car shows, chopped wood with him, or shared in his other projects and pastimes.
Finally, there was undisputed evidence that the decedent was a quiet, private man who did not often express his feelings and did not confide in his wife with respect to important personal issues, such as his health problems. In fact, the plaintiff was not aware of several of the medical conditions from which the decedent suffered, or of the various medications that he was taking for those conditions.
In short, although there is no reason to doubt that the plaintiff and the decedent enjoyed a long, happy life together, and that his loss left her feeling lonely and isolated, the record is largely devoid of any specific evidence from which the jury reasonably could have determined that the decedent met her needs for romance, affection, *271companionship, and intimacy to such a degree as to justify an award for consortium so much greater than her husband's compensatory award.
D
The plaintiff's primary response to the defendant's arguments on appeal is that the jury reasonably could have found that the fifteen years of suffering that she will endure as a result of the loss of the decedent's consortium far exceeds his loss of all of life's enjoyments during that same period of time because she lost various things that he did not.
1
With respect to the services performed by the decedent, we already have observed that, although the decedent **804undoubtedly performed various household repair and maintenance services, the plaintiff presented no evidence on the basis of which the jury could have quantified the value of those services. There certainly was no basis for concluding that the annual costs associated with maintaining and repairing the couple's home and their vacation cottage, or the noneconomic value to the plaintiff in having the decedent reliably perform those tasks, amounted to more than a tiny fraction of the $ 4.5 million loss of consortium award.
Equally important, the undisputed testimony was that the decedent did not consider repairs and home improvement projects to be chores. Rather, his daughter testified that he was a man who loved tinkering with things and always needed to be busy working on projects and helping others. Indeed, in his closing argument to *272the jury, the plaintiff's counsel emphasized how the decedent "lost his work, his family garage, all the creation, all the problem solving, the building, the rebuilding, the restoring, the fixing, the helping others, the pride, the sense of satisfaction and accomplishment." Accordingly, we must assume that much of the value of the household services that the plaintiff lost also would have counted as losses from the decedent's perspective, in that he lost the opportunity to engage in one of his favorite leisure activities while serving his family. There is no basis, then, for concluding that lost household services account for the substantial differential between the loss of consortium and wrongful death awards in this case.
2
Much the same can be said of companionship. Although companionship undoubtedly is a core aspect of marital consortium, and although the plaintiff's permanent loss of her life partner justifies a sizable award of damages, there is no evidence in the record that **805would support a loss of consortium award that is multiples greater than the corresponding wrongful death award. All of the time the decedent spent together with the plaintiff she likewise spent with him, and there is nothing to suggest that he was any more affectionate or supportive than was she.
In order to explain why the plaintiff's loss of the decedent was somehow much worse than his loss of his wife, the plaintiff appears to make the philosophical argument that it is better to be dead, and presumably unable to miss one's spouse, than to remain alive and to suffer the pangs of loss. Although common experience would seem to belie the plaintiff's theory, we need not grapple with such metaphysical questions in the present case because the plaintiff never claimed at trial that her relationship with the decedent was an unequal one or that his losses were somehow minimized because he is now in a better place. Quite the contrary; in his closing argument, the plaintiff's counsel focused his discussion of damages almost exclusively on the harms suffered by the decedent . In cataloging the decedent's losses, counsel began by emphasizing that the decedent "lost his family; he lost [his wife] ...." Primarily, though, counsel focused on the fact that the decedent had suffered the ultimate deprivation: loss of his life. "[T]he biggest loss of all," he informed the jury, "[is] the loss of a human life.... [T]he loss of life is massive." Counsel repeatedly asked the jury to award wrongful death damages in the neighborhood of $ 5.5 to $ 5.7 million because the decedent had lost his life rather than merely suffer a disabling injury. Counsel even rhetorically asked the jury, "[h]ow much would you give up for the loss of your life? What's that worth? It's substantial."
In explaining the magnitude of the decedent's loss, counsel particularly sought to focus the jury's attention on all of life's countless small pleasures that the decedent **806had lost, beyond his family, his work, his home, and his leisure time: "[H]e lost so much more than that. He lost all the things that you and I take for granted every single day. The smell of coffee in the morning, putting on your favorite pair of blue jeans, what it feels like when your dog curls up next to you at night and watches [television] with you, anticipating what the holidays are [going to] feel like, the feeling that you get when somebody you know takes the time to wish you happy birthday on your birthday. He missed hearing, thank you for helping me, thank you for solving my problem; no one else has been able to do that. The pride, the satisfaction, all of those pleasures that come from family relationships, relationships *273with friends, teaching others, learning from others, experiencing new things, experiencing old things, again, loving others and being loved by others. He lost the opportunity to experience all things, physical, spiritual, mental and emotional, that our culture and the world ... provide for him."
By contrast, counsel's sole reference to the plaintiff's loss of the decedent's consortium was the following: "Whatever amount you decide to compensate [the plaintiff] for the pain and the loneliness and all of her personal losses from being without her husband for the next nine and [one-half] years, I'll leave that to you ...." The plaintiff having tried the case in this manner, we find little to commend her theory on appeal that her losses were somehow more profound than those of the decedent.
The plaintiff next argues that a greater loss of consortium award was necessary to compensate her for the loss of the decedent's financial support. As a general matter, we agree with the defendant that, when a person injured by another's negligence loses the capacity to financially support his or her family, compensation for that loss should be awarded directly to the impaired spouse and-to avoid double recovery-not to the deprived spouse bringing a derivative consortium claim. See, e.g., 3 Restatement (Second), supra, § 693, comment (f), p. 497; W. Keeton et al., Prosser and Keeton on the Law of Torts (5th Ed. 1984) § 125, p. 933; J. Litwin, annot., " Measure and Elements of Damages in Wife's Action for Loss of Consortium,"
The plaintiff's argument appears to be that the present case is unique insofar as the only way to preserve **808the sale equity in the decedent's automotive repair business was for the plaintiff to shutter her *274own greenhouse businesses and temporarily manage the repair garage until various environmental issues had been resolved and a sale could be completed. Even if we were to assume, for the sake of argument, that those circumstances justify compensating the plaintiff, rather than the decedent's estate, for any financial losses resulting from his death, her argument would fail for at least two additional reasons.
First, the jury was never charged that loss of consortium encompasses financial losses. Rather, the court defined the claim as follows: "Loss of [c]onsortium is a suit by a spouse for the loss of affection, dependence and companionship .... The term 'consortium' encompasses the services of the spouse and the variety of intangible relations which exist between spouses, including affection, society, companionship and physical intimacies ...." Accordingly, there is no reason to believe that the jury's $ 4.5 million loss of consortium award included financial damages.
Second, no evidence was presented at trial pursuant to which the jury could have quantified the plaintiff's financial losses. There was no evidence as to how much income she lost as a result of having to close her green-houses; nor was there evidence establishing how long the repair garage was likely to require her presence. Although it is true that the more intangible types of loss of consortium damages are not readily quantified; see, e.g., Hopson v. St. Mary's Hospital , supra,
4
Finally, the plaintiff contends that the disproportionate loss of consortium award was justified by virtue of the fact that she experienced and will continue to experience suffering relating to the loss of her husband in general and, specifically, from having to make the painful choice to terminate his life support. The trial court appears to have embraced this argument in denying the defendant's motion for remittitur. The court justified its decision by explaining that "[the decedent's] unexpected death brought to a painful and tragic end a union [that] had endured [one] half century. Their last days together were defined by the difficult decisions [the plaintiff] had to make in connection with the termination of life support ...."
a
As we previously discussed, there is no doubt that the plaintiff may recover for the loss of the decedent's companionship. To the extent that a meaningful distinction can be drawn, we also agree with the plaintiff that she may recover not only for the deprivation of the happiness and other positive feelings that she would have derived from the decedent's company, but also for having to endure the sadness, loneliness, and other negative feelings that his loss evoked. See Hopson v. St. Mary's Hospital , supra,
b
A different question is posed by the fact that it fell to the plaintiff to make the heart wrenching decision to remove the decedent from life support and allow him to die. At trial, the plaintiff described this choice as "unimaginable" and "probably the worst decision any human being could make for another human being." It apparently was the view of the trial court that, although the jury was never expressly instructed that it could consider the hospital experience and life support decision when awarding damages, the resulting trauma that the plaintiff experienced did legitimately enter into the jury's calculations. The defendant contends, and we agree, that, although the outer boundaries of lost consortium may be uncertain, the cause of action is not so expansive as to encompass harms of this sort. We reach this conclusion for two reasons.
First, the trauma associated with having to make a difficult, end of life decision for a loved one is a harm that differs in kind from the types of injuries traditionally associated with loss of consortium. At common law, the principal marital rights of the husband and, by extension, the core components of a loss of consortium claim, were (1) the household services of the wife, and (2) her sexual relations. See, e.g., E. Holbrook, "The Change in the Meaning of Consortium,"
The reason for this, presumably, is that all of the harms traditionally associated with loss of spousal consortium involve the actual loss of some benefit or component of the marital relationship. The deprived spouse is denied the impaired spouse's services, sexual partnership, companionship, and/or emotional support over a significant period of time. Such losses may evoke emotional suffering, and the intensity and duration of that suffering may be factors in assessing the scope of the injury, but, at its core, the compensable injury is the prolonged deprivation itself.
Although the plaintiff's decision to terminate life support played a tragic and unavoidable role in the loss of the decedent, it is not that loss that is now at issue. The defendant acknowledges that the plaintiff is entitled to compensation for the permanent loss of all of the decedent's services and support, but merely observes that her losses are no greater than his *276own. The question we must resolve, however, concerns the plaintiff's need to make a sudden, emotionally wrenching decision, and the trauma that she presumably experienced as a result. It is difficult to characterize that decision as a loss of consortium, insofar as it did not involve the deprivation of any of the benefits or blessings of marriage. Rather, **812we agree with the defendant that the experience is more properly classified under the rubric of extreme emotional distress. Cf. Squeo v. Norwalk Hospital Assn. ,
At least two cases support the conclusion that having to terminate the decedent's life support, while undoubtedly traumatizing, is not the sort of harm that falls within the ambit of loss of consortium and, therefore, cannot justify the sizable disparity between the two awards in this case. See Santa v. United States ,
Second, and relatedly, our bystander distress cases, while allowing a family member to recover for the **813extreme emotional distress experienced upon perceiving an injury inflicted by gross medical negligence; see Squeo v. Norwalk Hospital Assn. , supra,
In the present case, the plaintiff did not assert a claim for bystander emotional distress, and there was no finding either by the jury or by the trial court that any of these conditions were satisfied. On the record before us, it is by no means clear-indeed, it appears unlikely-that the plaintiff could establish that (1) the defendant's conduct in failing to connect the decedent's epicardial **814pacing electrodes constituted the sort of gross negligence of which a layperson would have been aware, (2) the plaintiff perceived the injury to the decedent more or less contemporaneously with the infliction of that injury, or (3) the plaintiff suffered severe and debilitating emotional distress as a result. As the cited cases indicate, the anguish and trauma that the plaintiff experienced upon discovering her husband's condition and having to terminate his life support are quintessential bystander emotional distress injuries. If we were to allow a plaintiff to recover for those injuries under the distinct rubric of loss of consortium, under circumstances in which she is unable to satisfy our carefully crafted standards for bringing a bystander liability claim, then those standards would cease to serve a meaningful function, and the delicate balance that was struck when we recognized a limited cause of action for bystander distress in the medical malpractice context would be upended. This we decline to do.
For the aforementioned reasons, we conclude that the jury could not reasonably have found on this record that the plaintiff's lost consortium was substantially more damaging than the decedent's loss of life and all of its enjoyments. We therefore remand the case to the trial court for reconsideration of the defendant's motion for remittitur in accordance with the foregoing principles. See footnote 17 of this opinion.
The denial of the motion for remittitur of the loss of consortium award is reversed and the case is remanded for reconsideration of that motion in accordance with this opinion.
In this opinion the other justices concurred.
Although Hartford Healthcare Corporation also was named as a defendant, the complaint subsequently was withdrawn as to Hartford Healthcare Corporation. Hereinafter, we refer to Hartford Hospital as the defendant.
Marjorie Ashmore also brought the present action in her individual capacity. Hereinafter, all references to the plaintiff are to Marjorie Ashmore in her individual capacity seeking loss of consortium damages.
General Statutes § 52-228c provides in relevant part: "Whenever in a civil action to recover damages resulting from personal injury or wrongful death, whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, the jury renders a verdict specifying noneconomic damages ... in an amount exceeding one million dollars, the court shall review the evidence presented to the jury to determine if the amount of noneconomic damages specified in the verdict is excessive as a matter of law in that it so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption. If the court so concludes, it shall order a remittitur and, upon failure of the party so ordered to remit the amount ordered by the court, it shall set aside the verdict and order a new trial...."
Although we frequently state, as a form of shorthand, that we review questions of law de novo, it would be more accurate to say that we review de novo pure questions of law, as well as certain mixed questions involving the application of legal rules or principles to factual circumstances.
See, e.g., Edmands v. CUNO, Inc. ,
To the extent that it is relevant, the legislative history of the 1982 amendment to § 52-216a presents something of a mixed bag. On the one hand, there is reason to believe that the legislature inserted the "excessive as a matter of law" language primarily to ensure that the amended statute satisfied the constitutional standards set forth in our previous decisions. In March, 1982, this court decided Seals v. Hickey ,
The following month, in April, 1982, in response to this court's decision in Seals ; see Peck v. Jacquemin ,
On the other hand, during the House debates, a cosponsor of the legislation indicated that, in his opinion, the addition of the "matter of law" language was intended to eliminate the discretionary aspects of the trial court's decision to grant or deny remittitur. 25 H.R. Proc., Pt. 19, 1982 Sess., pp. 6178, remarks of Representative Alfred J. Onorato. His only explanation for that comment was that the amendment would bring Connecticut law in line with the law of other states and federal courts.
For purposes of this discussion, unless otherwise noted, all references to wrongful death awards and loss of consortium awards should be understood to refer only to noneconomic damages awards.
We note that closer scrutiny is also warranted in the present case because it involves an award of noneconomic damages in excess of $ 1 million arising from medical malpractice. The text and the legislative history of § 52-228c suggest that legislators were of the view that such awards are permissible only in exceptional cases, such as when a young, stay-at-home mother sustains injuries that, while not resulting in significant economic damages, can be expected to seriously impair her family's ability to function and flourish. See, e.g., 48 H.R. Proc., supra, pp. 9458, 9520-22, remarks of Representative Lawlor; see also Conn. Joint Standing Committee Hearings, Judiciary, Pt. 19, 2005 Sess., p. 5838, written testimony of Professor Neil Vidmar (stating that outlier medical malpractice awards frequently are reduced upon appellate review).
All of the principles and analysis contained in this opinion apply with equal force to same-sex married couples. See Mueller v. Tepler ,
See L. Tolstoy, Anna Karenina (R. Pevear & L. Volokhonsky trans., Penguin Books 2000) p. 1 ("[a]ll happy families are alike; each unhappy family is unhappy in its own way").
If a party so requests, it would be appropriate to instruct the jury regarding this presumption.
We note that the trial court, in denying the motion for remittitur, relied on the fact that "[t]he couple spent much of their free time together ...." It is unclear on what basis the trial court made this finding, as it does not appear to have direct support in the record.
We note that, although the defendant has not challenged the overall size of the $ 4.5 million loss of consortium award, in very few instances have loss of consortium awards of this magnitude been sustained. See, e.g., Caldarera v. Eastern Airlines, Inc. ,
The jury was specifically instructed, with respect to the wrongful death award, that it could award damages to compensate the decedent's estate for the destruction of the decedent's capacity to enjoy life's activities, "including family, work, recreation and other aspects of life."
The plaintiff does not deny, however, that the decedent lost many things that she did not; nor does she attempt to weigh the value or diminish the severity of those losses.
The defendant also contends that certain of these arguments are not preserved and, therefore, are not properly before this court. In light of our resolution of the appeal, we need not resolve those claims.
We further observe in this respect that, during his closing argument, the plaintiff's counsel repeatedly opined that an award of between $ 5.5 and $ 5.7 million would represent fair compensation for the decedent's injuries. The trial court then instructed the jury that "[a]ny damages awarded in this case relating to the harm suffered by [the decedent] would go to the estate and not simply to [the plaintiff]. Any damages awarded on [the plaintiff's] loss of consortium claim will be awarded directly to her." Ultimately, the jury awarded $ 5.7 million in damages, consistent with counsel's request but allotted the majority of that sum directly to the plaintiff rather than to the decedent's estate.
We cannot speculate as to the jury's rationale for allocating the awards as it did. See Champagne v. Raybestos-Manhattan, Inc. , supra,
We note that one legal source purports to offer a comprehensive list of the various factors that may be considered in connection with a loss of spousal consortium claim. See M. McLaughlin, supra, 10 Am. Jur. Proof of Facts 3d 158-61, § 39. Although numerous types of mental anguish and emotional strain are identified, none is even remotely akin to the harm claimed in the present case. See generally id., 159-61.
Concurring Opinion
In Munn v. Hotchkiss School ,
The present case is a prime example of how objective guideposts result in more logical, consistent outcomes. By adopting the common sense presumption that a loss of consortium award ordinarily should not substantially exceed the corresponding wrongful death award to the directly injured spouse, this court was able to limit its review to considering whether the evidence demonstrated exceptional or unusual circumstances to justify a loss of consortium award almost four times as great as *278the wrongful death award. After we applied this standard, the result was clear.
I join the majority opinion but write separately to note that, under the current state of our law, the unpredictability of noneconomic damages awards will continue to exist in other circumstances. It appears that the abuse of discretion standard of review that we utilize to consider whether a trial court's order as to whether a verdict is excessive as a matter of law will remain a legal oxymoron in our jurisprudence unless and until the legislature clarifies its intent in General Statutes § 52-216a. Without restating it here, I continue to maintain my view on the subject as articulated in Munn .
Reference
- Full Case Name
- Marjorie ASHMORE, Administratrix (Estate of William Ashmore ), Et Al. v. HARTFORD HOSPITAL Et Al.
- Cited By
- 14 cases
- Status
- Published