Arroyo v. University of Connecticut Health Center

JOSE ARROYO ET AL. v. UNIVERSITY

OF CONNECTICUT HEALTH

CENTER ET AL.

(AC 38701)

Alvord, Prescott and Pellegrino, Js.

Syllabus

The plaintiffs sought to recover damages from the defendant health center

and the defendant state of Connecticut for medical malpractice for

injuries sustained by the plaintiff A during a vasectomy. The plaintiffs

claimed that the urologist employed by the defendants who performed

the surgery, P, negligently injured A’s testicular artery, resulting in the

removal of one of his testicles. Following a trial to the court, the trial

court rendered judgment for the plaintiffs and the defendants appealed

to this court. Prior to bringing this action, the plaintiffs filed a notice

of claim with the Claims Commissioner pursuant to statute (§ 4-147),

which was accompanied by a certificate of good faith, as required by

statute (§ 4-160 [b]) in medical malpractice actions against the state,

and the commissioner subsequently granted the plaintiffs permission to

bring an action against the defendants. Held:

1. The defendants could not prevail on their claim that because the trial court

rendered judgment for the plaintiffs on a theory of liability materially

different from that which was alleged in their notice of claim, and

for which they had received a waiver of sovereign immunity from the

commissioner, the court was barred, under the doctrine of sovereign

immunity, from rendering judgment for the plaintiffs on that theory of

liability: given that the plaintiffs properly filed a timely notice with

the commissioner seeking permission to pursue a medical malpractice

action against the defendants and attached a good faith certificate to

the notice, the commissioner, pursuant to § 4-160 (b), was required to

grant the plaintiffs permission to bring their action, regardless of how

precisely the plaintiffs worded the basis of their medical malpractice

claim in their notice, and the fact that the notice of claim included more

details, which were not in conflict with the theory pursued at trial, was

not fatal to the plaintiffs’ case; moreover, § 4-147 (2) expressly provides

that the claim in the notice need not be particularized and requires only

that the notice contain a concise statement of the basis of the claim,

and the defendants failed to demonstrate that the basis of the claim in

the notice filed with the commissioner was materially different from

the basis of the plaintiffs’ claim at trial.

2. This court declined to review the defendants’ claim, raised for the first

time on appeal, that the trial court improperly awarded damages to the

plaintiffs on a theory of liability that was pursued at trial but was not

alleged in their complaint, the defendants having waived their objection

to any variance between the pleadings and the evidence by failing to

object accordingly at trial.

3. The defendants’ claim that the plaintiffs presented insufficient evidence

on the issue of causation was unavailing; the testimony of the plaintiffs’

expert, B, on causation relied on substantial evidence that was largely

unchallenged by the defendants, B supported his opinion on causation

through a method of diagnosis that involved a determination of which

of a variety of possible conditions is the probable cause of an individual’s

symptoms, often by a process of elimination, and established the causal

relation between A’s injury and its later physical effects, and the court,

as the trier of fact, was free to credit B’s explanation for the cause of

A’s injury over that of the defendants’ expert, and properly determined

that the plaintiffs had satisfied their burden of proving that P injured A’s

testicular artery during the vasectomy and caused necrosis of A’s testicle.

Argued May 16—officially released August 15, 2017

Procedural History

Action to recover damages for, inter alia, the defen-

dants’ medical malpractice, and for other relief, brought

to the Superior Court in the judicial district of Hartford

and tried to the court, Scholl, J.; judgment for the plain-

tiffs; thereafter, the court granted the defendants’

motion for a collateral source reduction, and the defen-

dants appealed to this court. Affirmed.

Michael G. Rigg, for the appellants (defendants).

Michael J. Walsh, for the appellees (plaintiffs).

Opinion

PRESCOTT, J. In this action seeking damages for

medical malpractice relating to a vasectomy, the defen-

dants, the University of Connecticut Health Center

(health center) and the state of Connecticut, appeal,

following a bench trial, from the judgment of the trial

court rendered in favor of the plaintiffs, Jose Arroyo

and Marie Arroyo,1 in the amount of $386,249.81.2 The

defendants claim that the court improperly (1) rendered

judgment on a cause of action for which the plaintiffs

had not obtained a waiver of sovereign immunity from

the state’s Claims Commissioner (commissioner),3 (2)

awarded damages on a theory of liability that was not

alleged in the plaintiffs’ Superior Court complaint, and

(3) concluded that the plaintiffs had satisfied their bur-

den of proving that the defendants’ employee, Peter

Albertsen, a urologist, had negligently injured Arroyo’s

testicular artery. We disagree with the defendants’

claims and, accordingly, affirm the judgment of the

trial court.

The following facts, as found by the court, and proce-

dural history are relevant to our resolution of the defen-

dants’ claims. On April 1, 2013, Arroyo underwent a

vasectomy performed by Dr. Albertsen at the health

center. Immediately after the procedure, Arroyo suf-

fered pain that continued, unabated, for several days.

Subsequently, on April 4, 2013, he went to the emer-

gency room at Saint Francis Hospital and Medical Cen-

ter (hospital), where it was discovered that his left

testicle was necrotic4 because of a lack of blood flow

through the testicular artery. This required Arroyo to

undergo an orchiectomy, or surgical removal of the

testicle, that same day. The surgery was performed by

Dr. Marlene A. Murphy-Setzko, a urologist at the hospi-

tal. This procedure resulted in discomfort and pain for

Arroyo from protruding sutures and infection, which,

in turn, required him to undergo further treatments over

a period of five months.

Sovereign immunity generally prevents a litigant from

suing the state for money damages without its consent.

See Morneau v. State, 150 Conn. App. 237, 246, 90 A.3d

1003, cert. denied, 312 Conn. 926, 95 A.3d 522 (2014).

Thus, in order to obtain permission to sue the defen-

dants for money damages, the plaintiffs filed a notice

of claim on September 13, 2013, with the commissioner

pursuant to General Statutes § 4-147.5 The notice was

accompanied by a certificate of good faith, as required

in medical malpractice claims brought against the state

pursuant to General Statutes § 4-160 (b),6 which pro-

vides in relevant part: ‘‘In any claim alleging malpractice

against the state, a state hospital or against a physician,

surgeon . . . or other licensed health care provider

employed by the state, the attorney or party filing the

claim may submit a certificate of good faith to the

Claims Commissioner in accordance with section 52-

190a. If such a certificate is submitted, the Claims Com-

missioner shall authorize suit against the state on

such claim.’’

In their notice of claim filed with the commissioner,

the plaintiffs alleged that ‘‘[d]uring the procedure Dr.

Albertsen failed to identify, dissect and ligate the vas

deferens, but instead he incorrectly dissected and

ligated surrounding vascular structures thereby depriv-

ing, restricting and severing blood flow to [Arroyo’s]

left testicle.’’ In an order dated November 6, 2013, the

commissioner granted the plaintiffs permission to sue

the defendants.

Subsequently, the plaintiffs commenced the present

action against the defendants in Superior Court on Janu-

ary 29, 2014. The complaint, which was accompanied

by a certificate of good faith as required by General

Statutes § 52-190a,7 contained two counts, the first

sounding in medical malpractice on behalf of Arroyo

and the second sounding in loss of consortium on behalf

of Marie.

Count one mirrored the language used in the notice

of claim filed with the commissioner, alleging that ‘‘Dr.

Albertsen failed to identify, dissect and ligate the vas

deferens, but instead he incorrectly dissected and

ligated surrounding vascular structures, thereby depriv-

ing, restricting and severing blood flow to the plaintiff’s

left testicle.’’ It also alleged that Dr. Albertsen was negli-

gent in one or more of six ways, those being that he

failed ‘‘[1] to properly identify the anatomy of the testi-

cle, both before and during the procedure, by all means

available to him, including palpation and visualization,

to ensure that he adequately identified the spermatic

cord and the vas deferens prior to his attempt to dissect

the vas deferens . . . [2] to properly isolate and free

the vas deferens from the surrounding anatomical struc-

tures prior to attempts to dissect the vas deferens . . .

[3] to properly confirm that he had, in fact, identified

the vas deferens by all means available to him, including

palpation and visualization, before his attempts to dis-

sect the vas deferens . . . [4] to dissect and ligate the

vas deferens, and instead he incorrectly dissected and

ligated surrounding blood vessels and vascular struc-

tures, thereby depriving, restricting and severing blood

flow to the left testicle . . . [5] to timely and properly

realize that he had, in fact, failed to dissect the vas

deferens, but instead had dissected vascular structures

in the testicle, and proceeded to conclude the procedure

and discharge the patient from the facility; and . . .

[6] to properly respond to and investigate the patient’s

repeated complaints of unusual and inordinate pain,

both during and following the procedure in question,

which investigation in all likelihood would have led him

to the realization that he had failed to sever and dissect

the appropriate vas deferens and instead severed and

dissected vascular structures necessary for the contin-

ued viability of the left testicle.’’

The case progressed to pretrial discovery. During this

time, the plaintiffs disclosed Dr. Michael Brodherson

as their expert witness, and the defendants disclosed

Dr. Wayne Glazier as their expert witness. The parties

deposed both experts prior to trial.

Thereafter, on November 4, 2015, the trial com-

menced. The court heard testimony from several wit-

nesses, including Dr. Albertsen, Dr. Brodherson, and

Dr. Glazier. The evidence showed that during Arroyo’s

vasectomy, Dr. Albertsen failed to properly identify,

dissect, and ligate the vas deferens in the left testicle

and, instead, dissected and ligated a section of ‘‘vascular

structures.’’ There was no disagreement that the blood

flow to the left testicle had been obstructed at the time

that Arroyo was seen by Dr. Murphy-Setzko at the hospi-

tal on April 4, 2013, and that the loss of blood flow

caused the necrosis of Arroyo’s testicle. Rather, the

parties disputed the cause of the injury. The plaintiffs

argued that the injury to the testicular artery occurred

during the vasectomy on April 1, 2013, and the defen-

dants argued that testicular torsion8 caused the loss of

blood flow, meaning that the injury occurred sometime

after the vasectomy, between April 1 and 4, 2013.

In a short memorandum of decision dated November

19, 2015, the court rendered judgment in favor of the

plaintiffs. Specifically, the court concluded that the

plaintiffs had established by a fair preponderance of

the evidence that Dr. Albertsen was negligent in his

treatment of Arroyo in that he ‘‘deviated from the stan-

dard of care of a board certified urologist in not isolating

the vas deferens and [thereby] injuring the testicular

artery to the left testicle of [Arroyo] during his perfor-

mance of a vasectomy . . . .’’ This appeal followed.9

Additional facts and procedural history will be set forth

as necessary.

I

The defendants claim for the first time on appeal10

that the court improperly rendered judgment for the

plaintiffs on a theory of liability materially different

from that which was alleged in their notice of claim

filed with the commissioner and, thus, from that which

they had received a waiver of sovereign immunity. Spe-

cifically, the defendants argue that in alleging that Dr.

Albertsen ‘‘dissected and ligated . . . vascular struc-

tures, thereby . . . severing blood flow to [Arroyo’s]

left testicle,’’ the ‘‘vascular structure’’ to which the plain-

tiffs must have been referring in their notice of claim

was the testicular artery because the only ‘‘vascular

structure’’ that could have resulted in a lack of blood

flow to the testicle was the testicular artery. The defen-

dants then reason that because the plaintiffs’ theory

of liability presented at trial was that Dr. Albertsen

dissected and ligated a vein, not the testicular artery,

and injured the nearby testicular artery in turn by unin-

tentionally cauterizing11 it, the plaintiffs did not obtain

a waiver of sovereign immunity for the claim presented

to the court.12 We disagree.

‘‘The principle that the state cannot be sued without

its consent, or sovereign immunity, is well established

under our case law.’’ (Internal quotation marks omit-

ted.) Morneau v. State, supra, 150 Conn. App. 246.

Therefore, ‘‘[o]ur Supreme Court expressly has stated

that a plaintiff seeking monetary damages against the

state must first obtain authorization from the Claims

Commissioner.’’ Id., 248. Section 4-147 provides in rele-

vant part: ‘‘Any person wishing to present a claim

against the state shall file with the Office of the Claims

Commissioner a notice of claim . . . containing the

following information: (1) The name and address of the

claimant; the name and address of his principal, if the

claimant is acting in a representative capacity, and the

name and address of his attorney, if the claimant is so

represented; (2) a concise statement of the basis of the

claim, including the date, time, place and circum-

stances of the act or event complained of; (3) a state-

ment of the amount requested; and (4) a request for

permission to sue the state, if such permission is sought.

. . . Such notice shall be for informational purposes

only and shall not be subject to any formal or technical

requirements, except as may be necessary for clarity

of presentation and facility of understanding.’’ (Empha-

sis added.)

In most cases, ‘‘[t]he [commissioner] may deny or

dismiss the claim, order immediate payment of a claim

not exceeding [$7500], recommend to the General

Assembly payment of a claim exceeding [$7500] or grant

permission to sue the state.’’ Morneau v. State, supra,

150 Conn. App. 248; see General Statutes (Rev. to 2013)

§ 4-158 (b). Notably, however, as previously discussed

herein, § 4-160 (b), which codified No. 98-76 of the 1998

Public Acts (P.A. 98-76), provides in relevant part that

‘‘[i]n any claim alleging malpractice against the state,

a state hospital or against a physician . . . or other

licensed health care provider employed by the state,

the attorney or party filing [a malpractice] claim may

submit a certificate of good faith to the Office of the

Claims Commissioner in accordance with section 52-

190a,’’ and ‘‘[i]f such a certificate is submitted, the [com-

missioner] shall authorize suit against the state on such

claim.’’ (Emphasis added.)

‘‘Before § 4-160 (b) was enacted, medical malpractice

claims were treated like other claims against the state

under . . . the General Statutes. . . . [T]he effect of

§ 4-160 (b) was to deprive the . . . commissioner of

his broad discretionary decision-making power to

authorize suit against the state in cases where a claim-

ant has brought a medical malpractice claim and filed

a certificate of good faith. Instead, § 4-160 (b) requires

the . . . commissioner to authorize suit in all such

cases. In other words, the effect of the statute was

to convert a limited waiver of sovereign immunity to

medical malpractice claims, subject to the discretion

of the . . . commissioner, to a more expansive waiver

subject only to the claimant’s compliance with certain

procedural requirements.’’ (Citations omitted; emphasis

altered; footnote omitted.) D’Eramo v. Smith, 273

Conn. 610, 622, 872 A.2d 408 (2005).

As a general matter, ‘‘[s]overeign immunity relates to

a court’s subject matter jurisdiction over a case, and

therefore presents a question of law over which we

exercise de novo review.’’ (Internal quotation marks

omitted.) Morneau v. State, supra, 150 Conn. App. 246.

In the present case, the defendants assert that

because the theory of liability presented in the plaintiffs’

notice of claim filed with the commissioner was differ-

ent from the ‘‘cauterization theory’’ that the plaintiffs

presented at trial, the court was barred by the doctrine

of sovereign immunity from rendering judgment for

the plaintiffs on this ‘‘new’’ theory. In doing so, the

defendants principally rely on Morneau for support.

In Morneau, the plaintiff filed a notice of claim with

the commissioner, seeking to sue the state, among other

defendants, for claims grounded in the alleged improper

conduct of state marshals. Id., 249. After the commis-

sioner dismissed the claim as untimely, the plaintiff

successfully obtained a reversal of that decision from

the legislature, which passed a resolution allowing a

waiver of sovereign immunity. Id., 249–50. Accordingly,

the plaintiff commenced an action in the Superior

Court. Id., 250. The trial court ultimately dismissed the

case, however, on the ground that ‘‘there was nothing

in the plaintiff’s initial claim to the [commissioner] that

would support the distinct legal elements for the causes

of action’’ alleged in his Superior Court complaint. Id.

On appeal, this court agreed with the trial court that

the legislature never waived sovereign immunity for the

claims at hand because ‘‘the plaintiff first raised these

particular legal theories in [his] complaint,’’ and ‘‘our

review of the materials before the [commissioner], and

then the General Assembly, reveals no allegations that

would support the elements of these distinct causes of

action.’’ Id., 251.

The defendants argue that the present case is analo-

gous to the facts of Morneau in that the plaintiffs here

did not obtain permission to sue for the cause of action

presented to the Superior Court. We are unconvinced

for several reasons.

First, Morneau involved an adjudication by the com-

missioner as to whether, in his or her opinion, a particu-

lar claim is ‘‘just and equitable’’ pursuant to § 4-160 (a).13

Such an adjudication necessarily depends on the nature

of the specific claim at hand and the facts that support

it. In contrast, the present case, being a medical mal-

practice action, is subject to § 4-160 (b), which, as pre-

viously discussed, strips the commissioner of his

discretionary decision-making power to authorize suit

for such claims against the state if a certificate of good

faith in accordance with § 52-190a has been submitted.

D’Eramo v. Smith, supra, 273 Conn. 622. That is to say,

the commissioner is obligated, without engaging in any

discovery or adjudicatory processes, to authorize suit

in all such cases. Id.

Here, the plaintiffs properly filed a timely notice with

the commissioner, sought permission from the commis-

sioner to pursue a medical malpractice action against

the defendants, and attached a certificate of good faith.

By virtue of the way in which this state’s system for

obtaining a waiver of sovereign immunity functions,

the commissioner was, therefore, required to grant the

plaintiffs’ motion for permission to sue under the cir-

cumstances, regardless of how the plaintiffs precisely

worded the basis of their medical malpractice claim in

their notice.

In fact, the plaintiffs theoretically could have alleged

more generally in their notice of claim that ‘‘Dr.

Albertsen negligently performed a vasectomy,’’ and, as

long as they submitted a good faith certificate, the com-

missioner would have been obligated to grant a waiver

of sovereign immunity to sue. The fact that the plaintiffs’

actual notice of claim here included more details,

which, as discussed further herein, did not conflict with

the theory pursued at trial, is not fatal to their case.

Furthermore, in our view, the defendants’ reading of

Morneau is overly broad. Specifically, the defendants

point to language in Morneau that provides that the

plaintiff ‘‘needed to include information that would clar-

ify the nature of the waiver sought and ensure that the

[commissioner] . . . would have an understanding of

the nature of that waiver.’’ (Emphasis added.) Morneau

v. State, supra, 150 Conn. App. 252. In the present case,

this concern about apprising the commissioner of ‘‘the

nature of the waiver’’ has no applicability because of

the mandatory obligation of the commissioner to grant

the waiver in all medical malpractice actions that are

accompanied by a good faith certificate.

Finally, putting aside any comparisons with Morneau,

we simply do not agree with the defendants’ argument

that the basis of the claim contained in the notice filed

with the commissioner is materially different from the

basis of their claim at trial. As previously stated, the

plaintiffs’ notice of claim alleged that ‘‘Dr. Albertsen

failed to identify, dissect and ligate the vas deferens, but

instead he incorrectly dissected and ligated surrounding

vascular structures thereby depriving, restricting and

severing blood flow to [Arroyo’s] left testicle.’’

At trial, the court admitted the pathology reports from

the health center and the hospital that showed that

Dr. Albertsen definitively had dissected and ligated a

‘‘section of muscular structure consistent with sections

of a medium size vein’’/‘‘[p]ortion of [b]enign [v]ascular

[c]onnective [t]issue’’ instead of the vas deferens.14

Therefore, that portion of the notice alleging that Dr.

Albertsen incorrectly dissected and ligated ‘‘vascular

structures’’ was, in fact, presented to the court. More-

over, the plaintiffs argued at trial that ‘‘[Dr. Albertsen]

proceeded to cut around [the vascular] structures with

blunt and sharp dissection and cauterization,’’ and ‘‘[i]n

so doing, he injured the testicular artery with the cau-

tery,’’ thereby cutting off the blood flow to the left

testicle. In other words, they argued that Albertsen’s

act of mistakenly dissecting and ligating the vascular

structures eventually resulted in the loss of blood flow

to Arroyo’s left testicle, as they also alleged in the

notice. Accordingly, the plaintiffs’ theory of liability in

their notice accurately sums up the theory of liability

presented at trial, albeit in a truncated manner that

omits any express mention of cauterization in the

causal chain.

Admittedly, the basis of the claim in the notice to

the commissioner was not as particularized as it might

have been, but this fact is unsurprising because the

plaintiffs did not have the benefit of months of discovery

prior to drafting it. In other words, because discovery

had not yet been allowed, the plaintiffs were essentially

hamstrung at the outset with how detailed they could

be in setting forth their medical malpractice claim. Cf.

Briere v. Greater Hartford Orthopedic Group, P.C.,

158 Conn. App. 66, 83, 118 A.3d 596 (2015) (‘‘Medical

malpractice actions present a conundrum in that there

is typically unequal access to the underlying facts and

conditions of the claim at the time a complaint is served.

. . . [W]e conclude that a better reading of the plead-

ings is a broad but pragmatic one that promotes sub-

stantial justice . . . .’’ [Citation omitted.]), aff’d, 325

Conn. 198, 157 A.3d 70 (2017). Moreover, § 4-147 (2)

expressly provides that the claim in the notice need

not be particularized, as all that is statutorily required is

‘‘a concise statement of the basis of the claim’’; (internal

quotation marks omitted) Morneau v. State, supra, 150

Conn. App. 249 n.16; as opposed to ‘‘a formal declaration

of the particular causes of action [the claimants seek]

to bring against the state . . . .’’ Id., 252. The permis-

sive language of § 4-147—‘‘[s]uch notice shall be for

informational purposes only and shall not be subject

to any formal or technical requirements’’—appears to

acknowledge that attaching any binding significance to

this document at such an early stage of the proceeding

would be unfair to a potential plaintiff. Therefore, we

decline to do so in the present case.

For the foregoing reasons, we reject the defendants’

assertion that the court improperly rendered judgment

for the plaintiffs on a claim for which the commissioner

had not granted a waiver of sovereign immunity.

II

We next address the defendants’ claim, raised for the

first time on appeal, that the court improperly awarded

damages to the plaintiffs on a theory of liability that

was pursued at trial, but was not alleged in their Supe-

rior Court complaint. Because the defendants waived

their objection to any variance between the pleadings

and the evidence by failing to object accordingly at trial,

we decline to address this argument on its merits.

In determining whether a judgment against a defen-

dant should be set aside because of defects in a plain-

tiff’s pleading of his cause of action, our Supreme Court

has stated that ‘‘[t]he proper way to attack a variance

between pleadings and proof is by objection at the trial

to the admissibility of that evidence which varies from

the pleadings, and failure to do so at the trial constitutes

a waiver of any objection to such variance. . . . A vari-

ance is a departure of the proof from the facts as alleged.

. . . Only material variances, those which disclose a

departure from the allegations in some matter essential

to the charge or claim, warrant the reversal of a judg-

ment. . . . Where a case has been litigated wholly upon

the merits a party is not permitted after judgment to take

advantage of defects in procedure which, had attention

been called to them at the trial, could readily have been

amended.’’ (Citations omitted; internal quotation marks

omitted.) Tedesco v. Stamford, 215 Conn. 450, 461–62,

576 A.2d 1273 (1990).

In the present case, the defendants never objected

during trial to the introduction of testimony elicited

from Dr. Brodherson that the injury to Arroyo’s left

testicle was due to the cauterization of the testicular

artery, on the ground that it was not properly pleaded

in the complaint. If the defendants had believed that

there was a material variance between the pleadings

and the evidence introduced at trial and had raised the

issue at that time, ‘‘the plaintiff[s] might have been

permitted to amend [their] complaint and any prejudice

could have been cured by a request for a continuance.’’

Id., 462. Because they never raised such an objection,

however, any variance between the pleadings and proof

at trial was clearly waived, and we, therefore, decline

to address the merits of this argument.

III

The defendants next claim that the court improperly

concluded that the plaintiffs satisfied their burden of

proving that Dr. Albertsen injured Arroyo’s testicular

artery. More specifically, they argue that the judgment

should be reversed on the ground that the plaintiffs

offered insufficient evidence on the issue of causation,

being that the evidence they did offer of the cauteriza-

tion theory was merely ‘‘ ‘surmise or conjecture’ . . . .’’

We disagree.

The following additional facts and procedural history

guide our resolution of this claim. As previously dis-

cussed, a substantial part of the evidence presented by

both parties at trial came in the form of expert testimony

from Dr. Brodherson, the plaintiffs’ expert, and Dr. Gla-

zier, the defendants’ expert. Both experts testified on

the issue of causation.

Dr. Brodherson began his testimony by explaining

how a vasectomy is performed. In general, the surgery

is designed to prevent the flow of sperm through the

vas deferens, which is the duct that conveys the sperm,

produced in the testis, from the epididymis to the ure-

thra. First, the physician must locate and identify the

vas deferens through the skin of the testicle by manual

palpation. Once he or she has done so, the physician

makes a small incision in the skin to access the struc-

ture. Before the physician can dissect and ligate15 the

vas deferens, however, he must isolate, or ‘‘strip,’’ the

vas deferens from all of the surrounding structures,

such as the veins and the testicular artery.16 This occa-

sionally results in bleeding, which the physician con-

trols through either cauterizing or tying the vas

deferens. Once the vas deferens is successfully isolated,

the physician then dissects, or cuts, the vas deferens

in two places, while at the same time removing a small

sample to send to pathology for testing to confirm that

the correct anatomical structure was cut. Thereafter,

the physician will ligate each of the cut ends of the vas

deferens, that is, either ‘‘tie it, clip it, however the doctor

wants to do it, just to make sure that it’s permanent,’’

before placing it back into the testicle and closing up

the incision.

The parties’ experts generally agreed that during

Arroyo’s vasectomy, Dr. Albertsen engaged in the pre-

viously mentioned procedure, except that instead of

isolating, dissecting, and ligating the vas deferens, he

performed these procedures on a portion of ‘‘vascular

structures,’’ i.e., a vein. Dr. Brodherson testified that,

generally speaking, if blood flow to one of the multiple

veins in the testicle becomes impeded, the testicle is

not at risk of necrosis because of the many other veins

that are still able to carry blood from the testicle. In

contrast, if the blood flow through the testicular artery

becomes impeded, the testicle will eventually die

because this artery provides the organ with all of its

essential nutrients.

Despite their agreement on the foregoing principles,

the parties’ experts disagreed on a critical point: how

the lack of blood flow to Arroyo’s left testicle, as

reflected in the hospital’s April 4, 2013 ultrasound

results, occurred. On this issue, Dr. Brodherson testi-

fied: ‘‘[W]hen you’re getting the vas [deferens] isolated,

you’ve got to do some damage.17 And when you cut it,

you have to clean up the damage. . . . [B]ut [Dr.

Albertsen] wasn’t isolating the vas [deferens]; he was

isolating a medium-sized vein. And that is where he got

into trouble. . . . [T]he vein and the arteries certainly

run together [in the same sheath]. And in the process of

isolating a vein, I’m sure some bleeding was provoked,

which we expect. . . . And in the process of that, I’m

sure anything bleeding in the area was cauterized to

prevent—to effect hemostasis, which he says he did at

the end of the procedure. And in one of the cauterization

procedures, I’m sure the [testicular] artery was cauter-

ized. . . . And there would have been no reason in his

mind to think that was the testicular artery because

he believed he was working on the vas [deferens].’’

(Footnote added.)

Dr. Brodherson explained that the testicular artery

is more at risk if the physician is working on a vein

instead of the vas deferens, stating: ‘‘When we do varico-

cele surgery and we remove veins, which is a procedure

done for infertility, we use a dopplar in the operating

room to make sure that it’s a vein and not an artery.

That’s how delicate these things are. You can’t really

see them. And it’s very possible to cut an artery or to

sever an artery. . . . [W]e use the dopplar to identify

the [testicular artery]. So, of course, if he had a dop-

plar—but he didn’t know he was on a vein. He was

dissecting a vein. He wasn’t dissecting a vas [deferens].

Completely different structure.’’ Because of Dr.

Albertsen’s wrong assumption about the structure he

was working on, Dr. Brodherson reasoned that ‘‘he

destroyed vital tissue because he was in the wrong part

of that tiny area. . . . [T]he vas [deferens], well, that’s

a different neighborhood. And the artery unfortunately

took a hit.’’

On the other hand, Dr. Glazier testified that the injury

to Arroyo’s testicular artery could not have occurred

during the vasectomy on April 1, 2013, because the

reported blood loss was too small and that the injury

was the result of torsion that had occurred ‘‘a day or

two following his vasectomy.’’ Specifically, he testified

that if Dr. Albertsen had destroyed the testicular artery

during the vasectomy, there would have been ‘‘[s]ignifi-

cantly more’’ blood loss than the estimated ‘‘less than

one milliliter’’ that he reported in his notes, because

although the testicular artery is ‘‘not a huge artery,’’

‘‘[i]t’s big enough. And if the patient had normal blood

pressure, the pulsatile nature of the artery would break

through the cautery seal and the patient will continue

to bleed; if not at that moment, certainly within a short

period of time.’’ In contrast, Dr. Brodherson testified

regarding the blood loss that a physician might not

know if he had cauterized or otherwise injured an artery

because of its small size and the fact that it may go

into spasm, or ‘‘close down [its blood flow] for a sec-

ond,’’ upon any slight manipulation by the physician.

Dr. Glazier further opined that the necrosis of the

left testicle must have been the result of torsion, which

‘‘is a sudden loss of blood supply to the testicles usually

by [the] twisting of the cord structures right above the

testicle so that the blood flow is progressively dimin-

ished and subsequently cut off,’’ that must have

occurred sometime after the vasectomy on April 1, 2013,

and before Arroyo went to the hospital on April 4, 2013.

Dr. Brodherson testified, however, that he was ‘‘[a]bso-

lutely 100 percent’’ sure that this theory was not

accurate.

More specifically, Dr. Brodherson testified that if tor-

sion had occurred, the twisting of the cord would have

killed ‘‘everything, the whole scrotal contents’’ of the

left testicle, including the blood supply to the epididy-

mis, a coiled structure on the top of the testicle that is

a conduit for sperm. Because Dr. Murphy-Setzko, the

physician who performed the orchiectomy on Arroyo,

noted in her surgical pathology report and testified dur-

ing her deposition that she observed Arroyo’s epididy-

mis as appearing ‘‘tan to pink and soft’’ and, thus,

healthy on April 4, 2013, Dr. Brodherson reasoned that

the blood supply to the epididymis was not affected by

the injury, and, therefore, torsion could be ruled out as

a potential cause of the necrosis.

Dr. Brodherson also pointed to several other factors

that informed this opinion, including (1) Dr. Murphy-

Setzko’s operating notes expressly stating that the ultra-

sound suggested ‘‘lack of blood flow versus torsion,’’

(2) her deposition testimony that she ‘‘did not see tor-

sion’’ in the testicle,18 and (3) the age of Arroyo. With

regard to Arroyo’s age, she stated that torsion is ‘‘out

of the age group. I mean, it would be very unusual

for a thirty-eight year old man, or forty, thirty-nine,

whatever he was at the time. They don’t get torsion.

. . . I mean, you may get one in a million with torsion,

but then you’re just assuming this is the guy [who] just

had a vasectomy and got torsion. And, you know, it’s

pretty coincidental. As you say, counselor, it stresses

credulity. It’s just ridiculous. Maybe one in—say, one

in twenty, thirty, 40,000. So, you’re telling us that this

guy, poor gentleman not only just had a vasectomy, but

then he—they’re trotting out this diagnosis that doesn’t

even happen as a second coincidence? It just doesn’t

fit.’’

We next set forth the applicable standard of review

and guiding principles of law for this claim. ‘‘Because

the . . . claim challenges the sufficiency of the evi-

dence, which is based on the court’s factual findings,

the proper standard of review is whether, on the basis

of the evidence, the court’s finding . . . was clearly

erroneous. . . . In other words, a court’s finding of

fact is clearly erroneous and its conclusions drawn from

that finding lack sufficiency when there is no evidence

in the record to support it . . . or when although there

is evidence to support it, the reviewing court on the

entire evidence is left with the definite and firm convic-

tion that a mistake has been committed. . . . More-

over, we repeatedly have held that [i]n a [proceeding]

tried before a court, the trial judge is the sole arbiter

of the credibility of the witnesses and the weight to be

given specific testimony. . . . Where there is conflict-

ing evidence . . . we do not retry the facts or pass on

the credibility of the witnesses. . . . The probative

force of conflicting evidence is for the trier to deter-

mine.’’ (Citations omitted; internal quotation marks

omitted.) State v. Trotman, 68 Conn. App. 437, 441, 791

A.2d 700 (2002).

‘‘[T]o prevail in a medical malpractice action, the

plaintiff must prove (1) the requisite standard of care

for treatment, (2) a deviation from that standard of

care, and (3) a causal connection between the deviation

and the claimed injury.’’ (Internal quotation marks omit-

ted.) Gold v. Greenwich Hospital Assn., 262 Conn. 248,

254–55, 811 A.2d 1266 (2002). ‘‘Generally, expert testi-

mony is required to establish both the standard of care

to which the defendant is held and the breach of that

standard.’’ (Internal quotation marks omitted.) Id., 255.

Likewise, ‘‘[e]xpert medical opinion evidence is usually

required to show the cause of an injury or disease

because the medical effect on the human system of the

infliction of injuries is generally not within the sphere

of the common knowledge of the lay person.’’ Milliun

v. New Milford Hospital, 310 Conn. 711, 725, 80 A.3d

887 (2013).

The defendants do not claim that there is insufficient

evidence supporting the court’s findings regarding the

appropriate standard of care and Dr. Albertsen’s devia-

tion from that standard of care. Thus, we focus on the

principles pertaining to causation. ‘‘All medical mal-

practice claims, whether involving acts or inactions of

a defendant physician, require that a defendant physi-

cian’s conduct proximately cause the plaintiff’s injuries.

The question is whether the conduct of the defendant

was a substantial factor in causing the plaintiff’s injury.

. . . This causal connection must rest upon more than

surmise or conjecture. . . . A trier is not concerned

with possibilities but with reasonable probabilities.

. . . The causal relation between an injury and its later

physical effects may be established by the direct opin-

ion of a physician, by his deduction by the process of

eliminating causes other than the traumatic agency, or

by his opinion based upon a hypothetical question. . . .

‘‘To be reasonably probable, a conclusion must be

more likely than not. . . . Whether an expert’s testi-

mony is expressed in terms of a reasonable probability

that an event has occurred does not depend upon the

semantics of the expert or his use of any particular

term or phrase, but rather, is determined by looking at

the entire substance of the expert’s testimony.’’ (Cita-

tion omitted; internal quotation marks omitted.) Sargis

v. Donahue, 142 Conn. App. 505, 513, 65 A.3d 20, cert.

denied, 309 Conn. 914, 70 A.3d 38 (2013).

‘‘[I]t is the plaintiff who bears the burden to prove

an unbroken sequence of events that tied his injuries

to the [defendants’ conduct]. . . . This causal connec-

tion must be based upon more than conjecture and

surmise.’’ (Citations omitted; internal quotation marks

omitted.) Paige v. St. Andrew’s Roman Catholic Church

Corp., 250 Conn. 14, 25–26, 734 A.2d 85 (1999). A plain-

tiff, however, ‘‘is not required to disprove all other possi-

ble explanations for the accident but, rather, must

demonstrate that it is more likely than not that the

defendant’s negligence was the cause of the accident.’’

(Emphasis added.) Rawls v. Progressive Northern Ins.

Co., 310 Conn. 768, 782, 83 A.3d 576 (2014). ‘‘[T]he issue

of causation in a negligence action is a question of fact

for the trier . . . .’’ (Internal quotation marks omitted.)

Burton v. Stamford, 115 Conn. App. 47, 87, 971 A.2d

739, cert. denied, 293 Conn. 912, 978 A.2d 1108 (2009).

In the present case, the defendants argue that

because the only expert opinion supporting the plain-

tiffs’ cauterization theory was from Dr. Brodherson, and

because Dr. Brodherson’s opinion that Dr. Albertsen

cauterized the testicular artery was ‘‘rank speculation,’’

the plaintiffs did not meet their burden of proving causa-

tion. We are unpersuaded by this argument.

First, Dr. Brodherson’s testimony on causation relied

on substantial evidence that was largely unchallenged

by the defendants. Specifically, it was undisputed that

Dr. Albertsen mistook a vein for the vas deferens during

the vasectomy, as proven by the results of the two

separate pathology reports admitted at trial. It was also

uncontroverted by the results of the ultrasound per-

formed at the hospital on April 4, 2013, that there was no

blood supply to the left testicle, which is ‘‘tantamount to

testicular death,’’ and, as Dr. Brodherson testified, the

testicle’s main source of nutrients via blood supply is

the testicular artery.

Furthermore, the plaintiffs showed that as a result

of Dr. Albertsen’s misidentification of the vas deferens,

he was working perilously close to the testicular artery.

The defendants assert in their brief that Dr. Brodherson

‘‘provided no explanation as to why mere proximity to

the veins was sufficient to conclude that the artery was

injured.’’ To the contrary, Dr. Brodherson explained

several times during his testimony why the testicular

artery is significantly more at risk if one is performing

surgery on a vein as opposed to the vas deferens,

emphasizing that the veins and artery run close together

in the same sheath in the spermatic cord. He testified

that the artery is extremely delicate and that it is so

small, ‘‘[y]ou can’t really see [it].’’ He also described in

detail the highly specialized piece of equipment, i.e., a

dopplar, that physicians utilize when they are operating

on the veins near the artery for other types of urologic

procedures, such as a varicocelectomy. Dr. Brodherson

explained how the dopplar helps physicians to identify

and visualize the artery so that they are able to protect

it from dissection and cauterization during these proce-

dures, and stated that Dr. Albertsen, in the present case,

essentially ‘‘[performed] a varicocelectomy without

having a dopplar,’’ a very precarious act because of the

risk of loss of blood flow posed to the testicle.

Ultimately, Dr. Brodherson supported his opinion on

causation through the process of ‘‘differential diagno-

sis,’’ which is ‘‘a method of diagnosis that involves a

determination of which of a variety of possible condi-

tions is the probable cause of an individual’s symptoms,

often by a process of elimination.’’ DiLieto v. County

Obstetrics & Gynecology Group, P.C., 297 Conn. 105,

114 n.13, 998 A.2d 730 (2010). The only two possible

causes of Arroyo’s necrotic left testicle that were

offered by the experts at trial were the cauterization

theory testified to by Dr. Brodherson and the torsion

theory. As previously discussed herein, Dr. Brodherson

considered and rejected the latter as a possible cause

of the injury based soundly on the evidence that the

epidydimis contained blood flow at the time Dr. Mur-

phy-Setzko performed the orchiectomy on April 4, 2013.

As Dr. Brodherson testified, Arroyo’s healthy epidyd-

imis ‘‘is the nail that . . . shuts the coffin. Because the

epididymis would have been dead had it been torsion.’’

In other words, Dr. Brodherson established the causal

relation between the injury and its later physical effects

‘‘by his deduction by the process of eliminating causes

other than the traumatic agency,’’ as is permitted by our

case law. (Internal quotation marks omitted.) Sargis v.

Donahue, supra, 142 Conn. App. 513; see also Ward v.

Ramsey, 146 Conn. App. 485, 490–91, 77 A.3d 935, cert.

denied, 310 Conn. 965, 83 A.3d 345 (2013).

In contrast, Dr. Glazier’s expert opinion on why

Arroyo’s necrotic left testicle must have been caused

by torsion was based largely on the fact that Dr.

Albertsen did not report that there was any significant

bleeding during the vasectomy. Dr. Brodherson’s testi-

mony, however, refuted that there always will be signifi-

cant bleeding if the artery is injured because, in some

cases, the artery will be in spasm, and, thus, less blood

will be flowing through it. The court was free to credit

Dr. Brodherson’s explanation.

Dr. Glazier also opined that the most likely explana-

tion was torsion because there was no indication during

the orchiectomy that the artery was severed, as there

was no indication that Dr. Murphy-Setzko had observed

the testicular artery at all.19 In contrast to this, however,

Dr. Brodherson testified that the fact that Dr. Murphy-

Setzko stated that she could not find the artery during

the procedure is ‘‘a complete diversion’’ and did not

surprise him ‘‘[b]ecause it had been previously injured,

cauterized. And—first of all, why would you look for

it? And second of all, you’re never going to find it. The

thing died four days ago. It’s retracted in. It’s black like

everything else. So, it’s completely irrelevant. There’s

no need to find the artery. I mean, you couldn’t find it.’’

As this court has held many times over, ‘‘[c]onflicting

expert testimony does not necessarily equate to insuffi-

cient evidence.’’ (Internal quotation marks omitted.)

Dallaire v. Hsu, 130 Conn. App. 599, 603, 23 A.3d 792

(2011). Rather, ‘‘[w]here expert testimony conflicts, it

becomes the function of the trier of fact to determine

credibility and, in doing so, it could believe all, some

or none of the testimony of either expert.’’ (Internal

quotation marks omitted.) DelBuono v. Brown Boat

Works, Inc., 45 Conn. App. 524, 541, 696 A.2d 1271, cert.

denied, 243 Conn. 906, 701 A.2d 328 (1997). Thus, in

the present case, the court, as the trier of fact, certainly

was free to reject the defendants’ theory of torsion and

to credit the opinion of the plaintiffs’ expert that the

testicular artery was cauterized during Dr. Albertsen’s

dissection and ligation of the vein.

In sum, we highlight that in order to prove causation,

a plaintiff ‘‘must demonstrate that it is more likely than

not that the defendant’s negligence was the cause of

the accident.’’ Rawls v. Progressive Northern Ins. Co.,

supra, 310 Conn. 782. ‘‘[T]he issue of causation in a

negligence action is a question of fact for the trier

. . . .’’ (Internal quotation marks omitted.) Burton v.

Stamford, supra, 115 Conn. App. 87. We agree with

the plaintiffs that the court’s finding was not clearly

erroneous in that regard. Accordingly, we conclude that

the court properly determined that the plaintiffs had

satisfied their burden of proving that Dr. Albertsen

injured Arroyo’s testicular artery and, thus, caused the

necrosis of Arroyo’s left testicle.

The judgment is affirmed.

In this opinion the other judges concurred.

1

In this opinion, we refer to Jose as Arroyo and to his wife, Marie Arroyo,

as Marie.

2

Specifically, the court initially awarded Arroyo $36,249.81 in economic

damages and $300,000 in noneconomic damages on his medical malpractice

claim, and awarded Marie $50,000 in damages on her loss of consortium

claim. The court thereafter granted the defendants’ motion for a collateral

source reduction and reduced Arroyo’s economic damages award to

$20,383.44.

3

The commissioner at that time was J. Paul Vance, Jr.

4

A ‘‘necrotic’’ testicle refers to the death of the tissues in the testicle,

which is tantamount to the death of the testicle itself.

5

General Statutes § 4-147 provides in relevant part: ‘‘Any person wishing

to present a claim against the state shall file with the Office of the Claims

Commissioner a notice of claim . . . .’’

6

We note that although § 4-160 has been amended since the events at

issue, those amendments are not relevant to this appeal. For convenience,

we refer in this opinion to the current revision of § 4-160.

7

General Statutes § 52-190a (a) provides in relevant part: ‘‘No civil action

or apportionment complaint shall be filed to recover damages resulting from

personal injury or wrongful death occurring on or after October 1, 1987,

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, unless the attorney

or party filing the action or apportionment complaint has made a reasonable

inquiry as permitted by the circumstances to determine that there are

grounds for a good faith belief that there has been negligence in the care

or treatment of the claimant. The complaint . . . shall contain a certificate

of the attorney or party filing the action or apportionment complaint that

such reasonable inquiry gave rise to a good faith belief that grounds exist

for an action against each named defendant. . . . To show the existence

of such good faith, the claimant or the claimant’s attorney . . . shall obtain

a written and signed opinion of a similar health care provider, as defined

in section 52-184c . . . that there appears to be evidence of medical negli-

gence and includes a detailed basis for the formation of such opinion. . . .’’

8

As Dr. Glazier testified, torsion ‘‘is a sudden loss of blood supply to the

testicles usually by [the] twisting of the cord structures right above the

testicle so that the blood flow is progressively diminished and subsequently

cut off.’’

9

The defendants filed a motion to reargue/reconsider, which the court

denied. They do not challenge that ruling on appeal.

10

Because sovereign immunity implicates the court’s subject matter juris-

diction, it may be raised at any time, including for the first time on appeal.

See Vejseli v. Pasha, 282 Conn. 561, 575 n.12, 923 A.2d 688 (2007).

11

As Dr. Brodherson testified at trial, cauterization is ‘‘the use of high

intensity heat. . . . [I]t destroys the tissue to the point—it’s a sealant, actu-

ally. If we use it on blood vessels, it will seal an artery if it’s a small artery

. . . . Or it can actually also cut . . . . If it’s a small vessel . . . it burns

it, it closes it, it seals it. It has an odor to it and you see smoke coming out

of it. But the main thing is that the bleeding will stop.’’

12

Specifically, Dr. Brodherson testified that ‘‘the vein and the arteries

certainly run together. And in the process of isolating a vein, I’m sure some

bleeding was provoked, which we expect. . . . And in the process of that,

I’m sure anything bleeding in the area was cauterized to prevent—to effect

hemostasis, which [Dr. Albertsen] says he did at the end of the procedure.

And in one of the cauterization procedures, I’m sure the artery was cau-

terized.’’

13

General Statutes § 4-160 (a) provides: ‘‘Whenever the Claims Commis-

sioner deems it just and equitable, the Claims Commissioner may authorize

suit against the state on any claim which, in the opinion of the Claims

Commissioner, presents an issue of law or fact under which the state, were

it a private person, could be liable.’’

14

We note that both experts testified at trial that the dissected section of

‘‘vascular structures’’ referred to in the pathology reports was, in fact, a vein.

15

According to Dr. Brodherson’s testimony, to ‘‘ligate’’ something is ‘‘to

bind it or to tie it up.’’

16

Dr. Brodherson testified that ‘‘[t]he point of . . . isolating the vas [defer-

ens] [is] . . . we really only want to tie off the vas [deferens]. We don’t want

to tie off other structures, especially an artery. . . . [T]he vas [deferens] has

to be isolated and it has to be on its own.’’

17

Dr. Brodherson had previously testified that the process of isolating the

vas deferens is occasionally ‘‘unpleasant’’ for the patient and ‘‘difficult’’ for

the physician because the physician has to manipulate the patient’s tissue

in order to discover the vas deferens beneath the skin, move what he believes

to be the vas deferens toward the surface of the skin, and make an incision

in order to access the structure and complete the vasectomy. He stated that

sometimes, however, after the incision is made, the structure that was

manipulated is not, in fact, the vas deferens, ‘‘[s]o then we have to go digging

around. And the skin is already open. You’re getting bleeding. And you

find—looking for it and the patient’s squirming. I mean, this is not a walk

in the park usually, often. But then we’ll dig deeper sometimes. Sometimes

it’s a snap. Sometimes the patient has very thin skin. You can almost see

it. . . . And then there’s these others—it could be on the same patient—

where it can take twenty minutes just to isolate.’’

18

We note that during her deposition testimony, Dr. Murphy-Setzko

declined to offer any opinions on the issue of standard of care.

19

The defendants also tried to make the argument that the code that Dr.

Murphy-Setzko used on her hospital reports for Arroyo, indicating that his

diagnosis was ‘‘testicle torsion,’’ lent support to their theory that torsion

was the cause. Significantly, however, Dr. Murphy-Setzko testified herself

that she merely used this code because the hospital’s record system did not

provide a code for vascular injury, and she ‘‘had to pick what’s the next

closest thing.’’