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*********************************************** 
LAURA KOS ET AL. v. LAWRENCE +

MEMORIAL HOSPITAL ET AL.

(SC 20256)

Robinson, C. J., and Palmer, McDonald, D’Auria,

Mullins, Kahn and Ecker, Js.

Syllabus

The plaintiffs, K and her husband, sought to recover damages from the

defendants, G, a physician, and G’s medical practice, for personal injuries

that K had suffered in connection with G’s alleged negligence in, inter

alia, failing to perform a proper and adequate episiotomy repair after

the birth of the plaintiffs’ son. G had performed an episiotomy to facilitate

the delivery of the plaintiffs’ son. After the delivery, G evaluated K

and diagnosed her with a third degree episiotomy extension, which G

repaired. After the repair was completed, G performed a digital examination of K’s rectum and determined that there were no breaks or defects

in K’s rectal mucosa. Although an exam of K’s perineum the day after

the delivery indicated no issues with the repair, K subsequently reported

complications, including pain, an infection, and a rectovaginal fistula

that required surgery. At trial, the plaintiffs’ expert witness, Y, testified

that the standard of care requires that a physician, after performing

an episiotomy, correctly diagnose and repair the episiotomy and any

extension thereof, which must involve a thorough rectal examination

before the repair. Y also testified that G failed to satisfy the standard

of care because, in failing to conduct a proper examination, G misdiagnosed and repaired the episiotomy extension as a third degree rather

than a fourth degree extension, and that this error led to the rectovaginal

fistula. According to the defendants’ expert, L, G complied with the

standard of care, which required that the rectal exam be performed

after rather than before the episiotomy repair. L also testified that G had

correctly diagnosed and repaired a third degree episiotomy extension.

Finally, another expert witness presented by the defendants testified

that K’s rectovaginal fistula was not caused by an unrepaired fourth

degree episiotomy extension but, rather, an infection. The trial court

instructed the jury that the plaintiffs had alleged that G breached the

standard of care by failing to identify a fourth degree episiotomy extension and by failing to properly examine and adequately repair a fourth

degree extension. The court also charged the jury on the acceptable

alternatives doctrine concerning the standard of care for conducting

the digital rectal examination. The jury returned a verdict in favor of

the defendants, finding that the plaintiffs had sustained their burden of

establishing the standard of care but failed to sustain their burden of

establishing that G breached the standard of care. On appeal, the plaintiffs claimed, inter alia, that the trial court improperly instructed the

jury by including a charge on the acceptable alternatives doctrine and

limiting their allegations regarding breach of the standard of care. Held:

1. Although the trial court improperly instructed the jury on the acceptable

alternatives doctrine, that charge was harmless under the circumstances

of the present case, and this court declined the plaintiffs’ request to

abolish that doctrine: the inclusion of an acceptable alternatives charge

in the court’s instructions was improper when the testimony of both

parties’ experts failed to establish that conducting a rectal examination

either before or after the episiotomy repair was an acceptable method

of diagnosing the particular degree of the extension, as Y testified that

the examination should be performed before the repair, whereas L

testified that it should be performed after the repair and that an examination prior to the repair generally was not an approved method of diagnosing the degree of the extension, and when the parties argued during

summation that there was only one proper method of examination to

properly diagnose the degree of the extension and neither party argued

that G chose between two acceptable alternatives in performing the

examination after the repair; nevertheless, the trial court’s improper

inclusion of an acceptable alternatives charge in its jury instructions

was harmless, as that error would not have confused or misled the jury
because, whether G properly performed the rectal examination mattered

only if there was a fourth degree episiotomy extension, and the jury

necessarily found that there was no fourth degree extension in finding

that G did not breach the standard of care, and the improper charge

did not otherwise interfere with the jury’s determination regarding the

credibility of the experts or exculpate G by suggesting that both methods

of examination were accepted within the medical community; moreover,

this court declined the plaintiffs’ request to abolish the acceptable alternatives doctrine, as it determined that this case, in which the doctrine

was held to be inapplicable, was not the appropriate case for deciding

whether the doctrine should be abolished.

2. The trial court’s supplemental instruction, in response to the jury’s request

for clarification, that the plaintiffs’ expert, Y, testified that an internal

rectal examination must be performed prior to an episiotomy repair as

a required component of the standard of care, did not improperly limit

the plaintiffs’ allegations regarding breach of the standard of care: the

trial court’s response to the jury’s request for clarification was consistent

with the evidence presented at trial and how the plaintiffs’ counsel had

argued the case to the jury, and nothing in the supplemental instruction

negated the plaintiffs’ allegation that, by breaching the standard of care

in failing to perform an examination before the repair, G failed to diagnose and repair a fourth degree extension; moreover, in reading the

trial court’s charge as a whole, this court determined that it was clear

that the trial court instructed the jury that the plaintiffs’ allegations

regarding breach of the standard of care included insufficient inspection,

diagnosis and repair of a fourth degree extension and, accordingly,

would not have confused and misled the jury into determining that,

even if a fourth degree extension had existed, the defendant did not

breach the standard of care; furthermore, to the extent that the court’s

supplemental instruction did limit the plaintiffs’ allegations, a second

supplemental instruction by the court, which contained language nearly

identical to the language the plaintiffs sought to include in the first

supplemental instruction, cured any error in the first supplemental

instruction.

Argued October 15, 2019—officially released March 10, 2020

Procedural History

Action to recover damages for, inter alia, medical

malpractice, brought to the Superior Court in the judicial district of New London, where the action was withdrawn as to the named defendant et al.; thereafter, the

case was tried to the jury before Bates, J.; verdict for

the defendant Elisa Marie Girard et al.; subsequently,

the court denied the plaintiffs’ motion to set aside the

verdict and rendered judgment in accordance with the

verdict, from which the plaintiffs appealed. Affirmed.

Alinor C. Sterling, with whom, on the brief, was

Kathleen L. Nastri, for the appellants (plaintiffs).

Stuart C. Johnson, with whom were M. Karen Noble

and, on the brief, Michael R. McPherson, for the appellees (defendant Elisa Marie Girard et al.).
Opinion

D’AURIA, J. In this medical malpractice case, the

plaintiffs, Laura Kos and Michael Kos,1 appeal following

the trial court’s denial of their motion to set aside the

jury’s verdict in favor of the defendants Elisa Marie

Girard and Physicians for Women’s Health, LLC,2 on

the ground that the trial court improperly instructed

the jury by (1) including a charge on the acceptable

alternatives doctrine, and (2) limiting their allegations

regarding Girard’s breach of the standard of care. Alternatively, they request that this court abolish the acceptable alternatives doctrine. Although we agree with the

plaintiffs that the trial court improperly instructed the

jury on the doctrine of acceptable alternatives, because

we find this error harmless and because we decline to

take this opportunity to abolish the acceptable alternatives doctrine, we affirm the judgment of the trial court.

Reading the record, as we must, in the light most

favorable to sustaining the verdict for the defendants,

reveals that the jury reasonably could have found that,

on August 19, 2011, the plaintiff gave birth to a son at

Lawrence + Memorial Hospital in New London. Girard,

who was employed by Physicians for Women’s Health,

LLC, in Groton, was the physician on call at the time.

During labor, after the plaintiff had been pushing for

approximately two hours, Girard decided to use a vacuum to assist in the delivery. When Girard’s use of the

vacuum was unsuccessful, Girard performed a median

episiotomy—a surgical cut made in the perineum (the

muscular area between the vagina and the anus) from

the vagina toward the rectum—to reduce the tight band

of tissue around the baby’s head that restricted his

movements. Girard testified that this episiotomy was

the equivalent of a second degree laceration. See footnote 3 of this opinion.

After performing the episiotomy, Girard successfully

delivered the plaintiffs’ son. Because Girard had used

a vacuum and had performed an episiotomy, the plaintiff was at risk of sustaining an extension of the episiotomy, requiring Girard to inspect the plaintiff’s vaginal

tissue. An extension of the episiotomy is diagnosed by

degree, with first degree involving the least amount of

tissue trauma and fourth degree involving the most

severe trauma.3

In conducting the inspection, Girard first inspected

the plaintiff’s cervix and surrounding tissue, looking for

tears, bleeding, or hematomas. Upon finding no issues,

Girard then used a laparotomy pad (gauze) to block

any bleeding from the uterus, which usually bleeds after

a vaginal birth, and to have an unobstructed view of

the lower vagina, perineal tissue, and rectum. Girard

focused on the area of the episiotomy, inspecting for

an extension. Through visual inspection and physical

manipulation by gloved hands, Girard determined that
the episiotomy had extended through the plaintiff’s anal

sphincter, which was separated. Because of the injury

to the anal sphincter, Girard was able to see the outer

aspects of the rectal mucosa and to feel that it was

intact. Because the rectal mucosa was intact but the

anal sphincter was torn, Girard diagnosed the plaintiff

with a third degree extension of the episiotomy, which

she then repaired. See footnote 3 of this opinion.

After repairing the tear, Girard inspected the repair

and conducted a digital rectal exam. Although Girard

had examined the outer aspect of the rectal mucosa

before the repair, she wanted to feel the internal side

to ensure that the perineal body and sphincter muscles

were adequately repaired, that bulk and tone were

appropriate, that thickness between the tissue was

appropriate, and that there were no breaks or defects.

There was no indication of a tear or defect in the plaintiff’s rectal mucosa. Girard did not conduct a digital

rectal exam before the repair because she was trained

to perform the exam after the repair to prevent contamination to the open wound.

The day after the delivery, prior to the plaintiff’s discharge from the hospital, the repair of the perineum

was inspected and found to be intact. The plaintiff’s

medical records do not indicate that, as of that time,

she was complaining of discharging stool or flatus (gas)

from her vagina. In a follow-up appointment, however,

on September 1, 2011, she reported vaginal discomfort

and stool coming out of her vagina. An opening in the

episiotomy site of less than half a centimeter was noted,

along with discharge that looked and smelled like stool.

In a subsequent follow-up appointment with another

physician, although the plaintiff did not bring any medical records with her, she reported that she had sustained a fourth degree extension of the episiotomy during birth and a rectovaginal fistula—an opening

between her vagina and rectum. At that time, she complained of perineal pain and was concerned about having developed an abscess. An examination did not establish the existence of a rectovaginal fistula, but the

plaintiff’s symptoms—including the discharge and the

smell—were consistent with a rectovaginal fistula. The

opening in the vagina that previously had been noted

was not detected. Additionally, the examination established that the plaintiff suffered from a sphincter separation.

The plaintiff later reported concerns that she had an

infection, complaining of drainage from a hole in her

perineum. She also complained of pain and redness,

which, along with the drainage, were signs of infection.

No rectovaginal fistula was detected. Upon further

examination, Richard Bercik, an urogynecologist, noted

that the episiotomy repair was intact but discovered

a small rectovaginal fistula just inside the posterior

fourchette and sphincter complex. John Gebhart, a uro-
gynecologist at the Mayo Clinic, also noted the existence of the rectovaginal fistula, as well as granulation

tissue (a sign of infection), and two other openings in

the vaginal wall, although neither led to the rectum.

The size of the rectovaginal fistula was described as ‘‘a

very small hole . . . .’’ The plaintiff thereafter underwent surgery to repair the rectovaginal fistula and the

sphincter separation.

The plaintiffs later filed this medical malpractice

case. In counts one and three of the operative complaint

the plaintiff alleged claims of medical malpractice

against the defendants. In counts two and four, the

plaintiffs alleged claims of loss of consortium against

the defendants on behalf of Michael Kos. Specifically,

they alleged that Girard was negligent in that she had

failed to identify a fourth degree extension of the

median episiotomy, failed to perform a proper and adequate episiotomy repair, and failed to properly examine

the episiotomy repair after it was complete. They

alleged that Physicians for Women’s Health, LLC,

Girard’s employer, was vicariously liable for Girard’s

negligence. They further alleged that, as a result of

Girard’s negligence, the plaintiff sustained serious injuries, including a rectovaginal fistula and an anal sphincter defect.

At trial, the plaintiffs presented the plaintiff’s medical

records, testimony from physicians who treated her

after the birth of her son, and expert testimony from

Brett C. Young, a maternal fetal medicine specialist,

obstetrician and gynecologist. The defendants presented expert testimony from Frank Wen-Yung Ling,

an obstetrician and gynecologist, as to the standard of

care, and from Michael K. Flynn, a urogynecologist, as

to causation.

At the close of evidence, the defendants requested

that the trial court include a charge on the acceptable

alternatives doctrine concerning the standard of care

for conducting the digital rectal exam. The plaintiffs

objected, but the trial court overruled the objection and

gave the requested charge. After requesting clarification

of the court’s instructions; see part I A of this opinion;

the jury reached a verdict in the defendants’ favor.

According to the jury interrogatories, the jury found

that the plaintiffs had sustained their burden of establishing the standard of care but had failed to sustain

their burden of establishing that Girard had breached

the standard of care. The plaintiffs then filed a motion

to set aside the verdict, arguing that the jury had been

improperly instructed on the doctrine of acceptable

alternatives. The trial court denied the motion. The

plaintiffs appealed to the Appellate Court, and the

appeal was transferred to this court pursuant to General

Statutes § 51-199 (c) and Practice Book § 65-1. Additional facts will be set forth as required.

I
The plaintiffs first claim that the trial court improperly instructed the jury by including a charge on the

acceptable alternatives doctrine because no evidence

supported the charge. The plaintiffs argue that, to give

the instruction, an expert had to testify that there was

more than one proper technique for conducting the

digital rectal exam, and that the experts’ dueling opinions about when to conduct the exam—before or after

the episiotomy repair—was not the equivalent of testimony that either option was an acceptable alternative.4

The plaintiffs further contend that this improper charge

was harmful because it was inapplicable and its inclusion interfered with the jury’s assessment of credibility

by exculpating the defendants and implying that

Girard’s actions were reasonable. Alternatively, the

plaintiffs ask this court to abolish the acceptable alternatives doctrine.

The defendants respond that the acceptable alternatives charge was proper because there was evidence

that there was more than one approved technique

within the medical community. They contend that the

evidence supports the charge as long as there is expert

testimony supporting more than one proper method,

even if an expert does not specifically state that both

methods are acceptable. Alternatively, the defendants

argue that any impropriety was harmless because it did

not affect the central issue regarding liability—whether

a third or fourth degree extension of the episiotomy

occurred. Moreover, the defendants contest the plaintiffs’ argument that the charge exculpated the defendants or interfered with the jury’s credibility determination.

We agree with the plaintiffs that the acceptable alternatives charge was improper but agree with the defendants that it was harmless. Because we determine that

any error was harmless, we decline to take this opportunity to abolish the acceptable alternatives doctrine.

A

The following additional facts and procedural history

are necessary to our review of this claim. At trial, in

addition to the plaintiff’s medical records and testimony

from her treating physicians, the plaintiffs offered

Young’s expert testimony. Young testified that the standard of care required that a doctor, after performing

an episiotomy, must correctly diagnose and repair the

episiotomy and any extension thereof. To do so, Young

testified, a doctor must conduct a thorough examination before repairing the episiotomy and any extension.

This includes a digital rectal exam, which involves placing a gloved finger into the anus and lifting up toward

the vagina to identify whether the gloved finger can be

seen from the vagina, meaning that a hole exists

between the anus and the vagina. Young testified that

the digital rectal exam must be conducted before
repairing the episiotomy because, otherwise, the extension will be repaired as a third degree extension, not

a fourth degree extension, and, once repaired, it is more

difficult to examine the rectal mucosa because the vaginal tissue is no longer ‘‘splayed’’ open.

Young opined that Girard failed to satisfy this standard of care ‘‘because she failed to identify a fourth

degree laceration . . . [which] subsequently had the

complication of breaking down and opening the sphincter . . . causing [the plaintiff to experience] incontinence and pain.’’ The basis for this opinion was that,

by failing to conduct a proper exam, Girard misdiagnosed and repaired the episiotomy extension as third

degree, rather than as fourth degree. Young testified

that this error caused a rectovaginal fistula, which

allowed for the passage of fecal matter and gas through

the anus to the vagina, contaminating and weakening

the repair of the anal sphincter. Young conceded, however, that, if the plaintiff had sustained only a third

degree episiotomy extension, she had ‘‘no criticism of

how [Girard] did the repair . . . .’’

In contrast, Ling testified on behalf of the defendants

that the standard of care required that a digital rectal

exam be performed after an episiotomy repair, not

before, and that Girard had complied with this standard

of care. Specifically, he testified that, once the perineal

muscles and anal sphincter tear, the rectal mucosa must

be carefully inspected to determine whether there is

a fourth degree extension. He testified that, first, the

physician must conduct an external inspection using

gloved hands to spread open the vaginal tissue to look

at the laceration. Ling testified that a physician should

be able to make a diagnosis after this visual inspection

because, once the anal sphincter muscle is separated,

the tissue will be splayed open so that the physician

will either see the outside of the rectum (meaning there

is a third degree extension) or the inside of the rectum

and the rectal mucosa (meaning there is a fourth degree

extension). He testified that it is ‘‘almost impossible’’

not to visually diagnose a fourth degree episiotomy

extension.

Only after repairing the extension, according to Ling,

does a physician then conduct a digital rectal exam,

feeling for whether the rectal mucosa is intact and

smooth. He explained that ‘‘[p]utting a gloved finger in

the rectum before you do the repair is actually frowned

upon by a lot of folks because of how easy it is to

make a diagnosis without putting a gloved finger in

the [rectum] and the fact that doing a gloved finger

examination of the rectum is not itself innocuous, meaning there are negative consequences. . . . When you

do fix it or repair it, it would be compromised by more

bacteria or more contamination, which could cause a

breakdown and can cause more problems . . . [like] a

greater chance of infection or failure of that episiotomy
[repair]. You might even worsen a problem by creating

a hole by putting your finger in the rectum.’’ Because

of these risks, Ling opined, the standard of care does

not require a rectal exam before the episiotomy repair,

but, rather, such a procedure ‘‘goe[s] beyond’’ the standard of care by ‘‘bring[ing] . . . additional risks

. . . .’’

Although Ling testified that Girard had complied with

the standard of care regarding her inspection technique,

he further testified that his opinion as to that issue was

irrelevant because he also opined that Girard correctly

had diagnosed and repaired a third degree extension.

In other words, whether a digital rectal exam occurred

before or after the repair mattered only if there was a

fourth degree episiotomy extension because this exam

was not required to diagnose and repair a third degree

episiotomy extension. Nevertheless, Ling conceded

that, if the plaintiff had sustained a fourth degree episiotomy extension, Girard would have breached the standard of care by diagnosing and repairing it as a third

degree episiotomy extension, thereby not repairing the

torn rectal mucosa.5

As to causation, the defendants offered the testimony

of Flynn, who opined that the plaintiff’s rectovaginal

fistula was not caused by an unrepaired fourth degree

episiotomy extension but, rather, by an infection. More

specifically, Flynn explained that a fourth degree extension and a rectovaginal fistula are separate and distinct

injuries. A fourth degree extension is an ‘‘acute event’’

where there has been a tear through the rectum,

whereas a rectovaginal fistula is a ‘‘chronic condition’’

of an opening that connects the lumen of the rectum

and the lumen of the vagina, usually brought about by

infection. Even without a fourth degree extension, a

rectovaginal fistula may result after a properly repaired

third degree extension because the tissue has been

stretched and compromised.

Flynn opined that this is what occurred in the present

case: ‘‘The most likely reason she developed a fistula,

she got an infection in the perineum and the episiotomy

repair, a small infection. . . . That drained through the

posterior fourchette, which is what [was seen at her

first follow-up appointment]. As soon as that abscess

drained . . . the infection’s not gone, but that little

pocket of pus is gone, it closed up. That’s why on subsequent examinations it [was not discovered by any other

physicians]. But the problem is, you still have that bacteria, you still have that pocket. . . . That infection

hasn’t resolved, and as that part closes off on the perineum, now it’s tracking toward the rectum where you’ve

got an area of weakened mucosa . . . where an infection can tract and it tract[s] right down to the anus

where it opens up into the anus to create the fistula

tract.’’ He also opined that the anal sphincter separation

was not a result of a fourth degree episiotomy extension
but, rather, occurred because the anal sphincter is a

muscle that is difficult to repair as the muscle causes

the sutures to stretch and fail over time.

Flynn further opined that it was very unlikely that

an undiagnosed fourth degree extension would have

caused the plaintiff’s rectovaginal fistula. First, the fistula did not occur in the area of the episiotomy repair

but, rather, in the posterior fourchette. Second, if there

had been a fourth degree laceration, it would have been

difficult not to diagnose the rectovaginal fistula by

visual inspection once the sphincter was separated,

splaying the vagina open. Third, because the hole in

the rectal mucosa was so small, if it had been present

right after the delivery, it would have healed on its

own once the other layers of the laceration had been

repaired. Fourth, due to the small size of the hole in

the rectal mucosa, only liquid stool, but not solid stool,

would have been able to pass through it—contrary to

the plaintiffs’ allegations. If liquid stool had been passing through this hole since the day of delivery, the

bacteria would have permeated the entire repair, and

the repair would have opened up completely within two

to five days. Additionally, the hole would have grown

in size over time. Instead, the episiotomy repair was

found to be intact.

During closing argument, neither party referred to

the acceptable alternatives doctrine, despite the fact

that the defendants had requested an acceptable alternatives charge. Rather, both parties argued that there

was only one proper method of conducting the digital

rectal exam—the plaintiffs argued that it had to occur

prior to the repair, and the defendants argued that it

had to occur after the repair. Moreover, although both

parties discussed Girard’s inspection technique, both

argued that the crux of the case came down to whether

there was a third degree or a fourth degree episiotomy

extension. The plaintiffs’ counsel described the case as

follows: ‘‘So, the issue in this case is, was there a fourth

degree laceration, right? That’s the whole issue.

Because if it’s there, we know she missed it. . . . Third

degree is the defendants’ case. . . . Fourth degree is

the plaintiffs’ case.’’ Similarly, the defendants’ counsel

summarized the case as ‘‘revolv[ing] around [whether

there was] a third degree laceration that was properly

repaired or a fourth degree laceration . . . .’’

The trial court then instructed the jury that the plaintiffs had alleged that Girard breached the standard of

care by failing to identify a fourth degree extension

of the median episiotomy, and by failing to properly

examine and to adequately repair a fourth degree extension. The trial court also charged the jury on the acceptable alternatives doctrine.6

After being instructed, the jury sought clarification

as to whether it could ‘‘use the total testimony of all

witnesses to ascertain the plaintiffs’ definition of [the]
standard of care or only Dr. Young’s testimony . . . .’’

The trial court responded by instructing the jury that

it was ‘‘permitted to look at all of the evidence, including

testimony, to determine the standard of care, and it is

your obligation to determine the standard of care.’’ The

trial court then reread the standard charge on medical

malpractice and the charge on reasonable alternatives.

The plaintiffs’ counsel again objected to the inclusion

of the reasonable alternatives charge.

B

‘‘The standard of review for claims of instructional

impropriety is well established. [I]ndividual jury

instructions should not be judged in artificial isolation

. . . . The pertinent test is whether the charge, read

in its entirety, fairly presents the case to the jury in

such a way that injustice is not done to either party

under the established rules of law. . . . Thus, [t]he

whole charge must be considered from the standpoint

of its effect on the [jurors] in guiding them to the proper

verdict . . . and not critically dissected in a microscopic search for possible error.’’ (Internal quotation

marks omitted.) State v. Flores, 301 Conn. 77, 93, 17

A.3d 1025 (2011).

It is well established that it is error to instruct the

jury on a doctrine or issue not supported by the evidence offered at trial. See, e.g., Stokes v. Norwich Taxi,

LLC, 289 Conn. 465, 484–85, 958 A.2d 1195 (2008); Vertex, Inc. v. Waterbury, 278 Conn. 557, 575 and n.13, 898

A.2d 178 (2006); Mack v. Perzanowski, 172 Conn. 310,

312–13, 374 A.2d 236 (1977). ‘‘Jury instructions should

be confined to matters in issue by virtue of the pleadings

and evidence in the case.’’ Mack v. Perzanowski, supra,

313. ‘‘[W]e review the evidence presented at trial in the

light most favorable to supporting the proposed charge.

. . . If . . . the evidence would not reasonably support a finding of the particular issue, the trial court has

a duty not to submit it to the jury.’’ (Internal quotation

marks omitted.) Stokes v. Norwich Taxi, LLC, supra,

484–85.

This court addressed the propriety of an acceptable

alternatives instruction in Wasfi v. Chaddha, 218 Conn.

200, 588 A.2d 204 (1991). In Wasfi, a medical malpractice case, the central issue was whether a computerized

axial tomography (CAT) scan should have been ordered

before or after attempting to treat the plaintiff with

carbogen inhalation therapy. Id., 202–203. ‘‘At the trial,

experts on both sides testified concerning, inter alia,

the propriety of [the defendant physician’s] prescription

of carbogen [inhalation] therapy prior to ordering a

CAT scan. . . . [The physician’s] counsel elicited

expert testimony to the effect that the timing of the

CAT scan—before . . . or after carbogen [inhalation]

therapy—was a matter of professional opinion as to

which physicians differed.’’ Id., 203. On the basis of this

testimony, this court held that the trial court properly
instructed the jury on the acceptable alternatives doctrine, which we described as ‘‘the settled principle that

where the treatment or procedure is one of choice

among competent physicians, a physician cannot be

held guilty of malpractice in selecting the one which,

according to his best judgment, is best suited to the

patient’s needs.’’ (Internal quotation marks omitted.)

Id., 208.

Unlike the present case, Wasfi did not involve two

experts with dueling opinions regarding the proper procedure, with neither expert agreeing that the alternative

procedure was acceptable in the medical community.

This court in Wasfi, therefore, did not address whether

the acceptable alternatives charge could be supported

by experts with differing opinions. Rather, in Wasfi,

an expert specifically testified that both procedures—

ordering the CAT scan before or after the carbogen

inhalation therapy—were acceptable in the medical

community. Id., 210–11.

Since Wasfi, this court has not addressed this issue.

We find instructive, however, this court’s decisions

regarding the schools of thought doctrine. Although that

doctrine is separate and distinct from the acceptable

alternatives doctrine, it is similar in that both doctrines

recognize that there may be more than one acceptable

approach to treating a patient. Under this doctrine, ‘‘the

law will not judge between different medical schools

of thought so long as a physician acts according to the

standards within that school. . . . [This charge is

proper only if there is evidence that the practitioner]

adhered to a recognized school of good standing, which

has established rules and principles of practice for the

guidance of all its members, as respects diagnosis and

remedies, which each member is supposed to observe

in any given case.’’ (Citation omitted; internal quotation

marks omitted.) Id., 207–208.

In determining whether there is sufficient evidence

to support a schools of thought instruction, this court

has held that ‘‘a conflict in the evidence of the experts,

as is to be expected in [medical malpractice] cases,’’ is

not sufficient to support the charge. Geraty v. Kaufman, 115 Conn. 563, 571, 162 A. 33 (1932); see also

Katsetos v. Nolan, 170 Conn. 637, 653, 368 A.2d 172

(1976) (schools of thought instruction is proper when

there is evidence of more than one school of thought

recognized in medical community and defendant followed different school of thought than plaintiff’s

expert). Rather, there must be testimony that different

schools of thought exist and what each school of

thought requires regarding procedure and treatment.

Geraty v. Kaufman, supra, 571; see also Savoie v.

Daoud, 101 Conn. App. 27, 38–39, 919 A.2d 1080 (2007)

(proper to instruct on schools of thought doctrine when

expert testified about existence of two schools of

thought).
It is the nature of medical malpractice cases that there

often will be conflicting expert testimony regarding the

standard of care. Wasfi makes clear that, similar to the

schools of thought doctrine, the acceptable alternatives

doctrine does not apply in every medical malpractice

case but, rather, applies only when there is evidence

of more than one acceptable method of inspection, diagnosis, or treatment. See Wasfi v. Chaddha, supra, 218

Conn. 211 (‘‘the defendant physician who claims that he

employed one of several alternative methods accepted

within his profession has no less a task than any defendant physician: to offer credible expert evidence that

his conduct was accepted within the profession, and

to persuade the jury to believe that evidence’’ (emphasis omitted)).

Consequently, as with the schools of thought doctrine, competing expert testimony by itself is not sufficient to support the acceptable alternatives charge. For

example, if expert A testifies that the standard of care

requires diagnosis to be made using the X method, and

expert B testifies that the standard of care requires

diagnosis to be made using the Y method, the jury must

decide between the two alternatives, with only one

option satisfying the standard of care. There would be

no evidence that both methods were acceptable alternatives because both experts testified that only one

method would satisfy the standard of care. Rather, to

justify the charge, a qualified expert must testify that

there is more than one acceptable method of inspection,

treatment, or diagnosis.

The evidence in the present case played out like the

hypothetical just described: no expert testimony established that conducting the digital rectal exam either

before the episiotomy repair or after the episiotomy

repair was an acceptable method of diagnosing the level

of degree of extension. Rather, the plaintiff’s expert,

Young, testified that the only acceptable method was to

conduct this examination prior to the repair. In contrast,

one of the defendants’ experts, Ling, testified that this

examination should be performed after the repair, to

prevent contamination and infection. Additionally,

Girard herself never testified that she made a choice

regarding when to conduct the digital rectal exam but,

rather, testified that she was trained to conduct this

exam only after the episiotomy repair.

The defendants respond that there was evidence that

both methods were acceptable alternatives because

Ling never testified that a prerepair examination was

a deviation from the standard of care; he merely testified

that a prerepair examination was not required. The

defendants focus on Ling’s testimony that a prerepair

digital rectal examination was ‘‘going beyond what the

standard of care would require . . . .’’ The defendants

take Ling’s statement out of context, however. Ling did

not testify that a prerepair examination went beyond
the standard of care in that it satisfied the standard of

care by doing more than the standard of care required

and, thereby, was an acceptable alternative to a postrepair examination. Rather, Ling testified that the standard of care does not require a prerepair examination

because it ‘‘is actually frowned upon’’ and ‘‘discourage[d]’’ due to the increased likelihood of contamination and infection. Ling further testified that, because

a prerepair examination can even create an opening in

the rectum, ‘‘we don’t encourage doing it unless it’s

absolutely necessary.’’ Ling disagreed with Young that

the standard of care required a prerepair examination,

explaining that ‘‘[t]hat’s going beyond what the standard of care would require, and it brings in the additional

risks [of infection and creating an opening] by examining [the plaintiff] before the repair is done . . . .’’

Ling never opined that a prerepair examination was

an acceptable alternative to a postrepair examination

approved by the medical community. Rather, Ling testified that prerepair examination was a disapproved

method of diagnosis unless ‘‘absolutely necessary.’’

Additionally, the defendants rely on Young’s testimony to support the acceptable alternatives charge.

Specifically, they point to Young’s testimony that,

although she opined that the standard of care required a

prerepair examination, a postrepair examination could

identify a fourth degree episiotomy extension. Again,

the defendants take this testimony out of context. On

cross-examination, Young testified that, in a previous

deposition, she had testified that, after a repair is performed, a digital rectal exam can establish the existence

of a fourth degree extension. Young clarified at trial

that a tear of the rectum would be noticeable only

during a digital rectal examination postrepair if the

repair had been done improperly so that the three layers

above the rectal mucosa remained torn, allowing the

physician to see from the vagina through the tear to

the rectal mucosa. In essence, Young’s testimony was

that a postrepair digital rectal exam was an acceptable

alternative only if the physician was negligent in performing the repair. Accordingly, this record did not

support an acceptable alternatives charge.

Moreover, neither party at trial argued that the expert

testimony established that Girard chose between two

acceptable alternatives in performing the digital rectal

examination postrepair. Both parties argued during

summation that there was only one proper method of

examination to properly diagnose the degree of the

episiotomy extension—the plaintiffs’ counsel argued

that the exam had to occur prerepair, whereas the

defendants’ counsel argued that the exam had to occur

postrepair. The defendants’ counsel even went so far

as to argue that she ‘‘couldn’t believe [that] . . . Young

would even suggest that [a prerepair examination] was

a good idea, much less the standard of care.’’ Similarly,

the plaintiffs’ counsel noted that there was ‘‘no agree-
ment on the alternatives. . . . Young was very clear

[that] the examination has to be done before you do

the repair; [Ling] was very clear [that] you do the examination after the repair. There is no agreement on that.’’

Although closing argument is not evidence itself, it is

noteworthy that, at trial, not even the parties thought

the evidence established that the competing inspection

methods were acceptable alternatives.

In light of the evidence presented at trial, the trial

court improperly instructed the jury on the acceptable

alternatives charge.

C

The plaintiffs contend that this instructional error

was harmful because merely injecting an inapplicable

doctrine into the case creates a ‘‘substantial’’ likelihood

of prejudice. More specifically, they argue that the

charge ‘‘ ‘exculpate[d]’ ’’ the defendants and interfered

with the jury’s assessment of credibility by suggesting

that both methods of inspection were reasonable as

long as Girard used her ‘‘best judgment.’’ The plaintiffs

argue that the harm of this charge is evident from the

jury’s request for additional guidance regarding the

standard of care, the trial court’s repetition of the

charge in response to the jury’s clarifying questions,

and the fact that this charge was the last charge the

jury heard.7

The defendants respond that the improper charge

was harmless because the dispositive issue at trial was

not whether Girard breached the standard of care by

performing the digital rectal examination after the episiotomy repair but, rather, whether a fourth degree extension of the episiotomy existed. To establish liability,8

the plaintiffs had to prove that Girard failed to identify

a fourth degree episiotomy extension and failed to properly examine and repair that fourth degree extension.

The defendants contend that, because the jury found

that Girard did not breach the standard of care, it necessarily found that no fourth degree extension existed,

and, thus, the acceptable alternatives charge did not

taint the verdict because whether Girard performed the

proper exam mattered only if there was a fourth degree

extension. The defendants contend that the instruction

did not interfere with the jury’s credibility determination or improperly exculpate Girard. We agree with

the defendants.

‘‘[N]ot every error is harmful. . . . [B]efore a party

is entitled to a new trial . . . he or she has the burden

of demonstrating that the error was harmful. . . . An

instructional impropriety is harmful if it is likely that

it affected the verdict. . . . [W]e consider not only the

nature of the error, including its natural and probable

effect on a party’s ability to place his full case before

the jury, but the likelihood of actual prejudice as

reflected in the individual trial record, taking into
account (1) the state of the evidence, (2) the effect of

other instructions, (3) the effect of counsel’s arguments,

and (4) any indications by the jury itself that it was

misled.’’ (Internal quotation marks omitted.) Allison v.

Manetta, 284 Conn. 389, 400, 933 A.2d 1197 (2007); see

also Galligan v. Blais, 170 Conn. 73, 78, 364 A.2d 164

(1976) (‘‘for an error in the charge to be a ground for

reversal, it must have been both material and prejudicial’’). ‘‘A charge must be read in its entirety and is to

be considered from the standpoint of its effect on the

jury in guiding [it] to a correct verdict.’’ (Internal quotation marks omitted.) Dinda v. Sirois, 166 Conn. 68, 74,

347 A.2d 75 (1974).

The inclusion of an inapplicable doctrine may be

harmful if it confuses and misleads the jury, which may

be evidenced by the jury’s having requested additional

guidance from the court on the doctrine; see, e.g., State

v. Torrence, 196 Conn. 430, 438, 493 A.2d 865 (1985);

Conlon v. G. Fox & Co., 165 Conn. 106, 113, 328 A.2d

708 (1973); by the inapplicable charge being the last

charge that a jury hears; State v. Torrence, supra,

437–38; Velardi v. Selwitz, 165 Conn. 635, 640–41, 345

A.2d 527 (1974); Laffin v. Apalucci, 128 Conn. 654, 658,

25 A.2d 60 (1942); or by repetition of the improper

charge. See State v. Flowers, 278 Conn. 533, 542–43,

898 A.2d 789 (2006) (twice repeated improper jury

instruction required reversal of judgment of conviction); State v. Owens, 39 Conn. App. 45, 55, 663 A.2d

1108 (twice repeated improper jury instruction required

reversal in part of judgment of conviction), cert. denied,

235 Conn. 927, 667 A.2d 554 (1995).

Despite an instructional error, if the error did not

affect the jury’s verdict, courts of this state have found

the error to be harmless. See, e.g., Burke v. Mesniaeff,

334 Conn. 100, 121–22, 220 A.3d 777 (2019) (holding

that improper instruction was harmless when it did not

taint jury’s verdict); State v. Acklin, 9 Conn. App. 656,

666, 521 A.2d 165 (1987) (holding that instructional error

was not misleading and, thus, not harmful when error

did not affect principal issue in case); see also State v.

Torrence, supra, 196 Conn. 438 (‘‘[a] faulty definition

of cognitive insanity cannot prejudice a defendant who

claims volitional insanity’’); Caron v. Adams, 33 Conn.

App. 673, 685, 638 A.2d 1073 (1994) (despite instructional error, ‘‘[a] verdict should not be set aside where

the jury reasonably could have based its verdict on the

evidence’’). Cases in which the inclusion of an inapplicable doctrine have been held harmful have involved the

submission of an issue or doctrine that affected the

jury’s determination of liability. See Faulkner v. Reid,

176 Conn. 280, 281, 407 A.2d 958 (1978) (instructing on

inapplicable special defense that affected determination of liability); Miller v. Porter, 156 Conn. 466, 470,

242 A.2d 744 (1968) (same).

In the present case, all the experts agreed that, if
there had been a fourth degree extension of the episiotomy, the standard of care would require Girard to diagnose it and to repair it as a fourth degree extension

regardless of whether the digital rectal exam was performed before or after the episiotomy repair. Additionally, Young conceded that, if there was only a third

degree extension, the repair was properly done and

Girard did not breach the standard of care. Thus, regardless of whether the jury found either or both methods

of inspection acceptable, there would be a breach of

the standard of care only if the plaintiff had sustained

a fourth degree episiotomy extension and Girard had

failed to properly repair it. In other words, even if a

prerepair exam was required for a fourth degree extension, if there was only a third degree extension, there

would be no breach. If there was a fourth degree extension, regardless of whether a digital rectal exam was

required before or after the repair, there would be a

breach of the standard of care because the fourth degree

extension was not diagnosed and repaired. The timing

of the exam was relevant to the issue of breach only

if the jury found there was a fourth degree episiotomy extension.

This is made clear by the court’s recitation of the

plaintiffs’ allegations in its jury instruction, to which

the plaintiffs did not take exception. See footnote 8 of

this opinion. The trial court instructed that the plaintiffs

had alleged that Girard breached the standard of care

by failing ‘‘to identify a fourth degree extension of the

median episiotomy’’ and by failing ‘‘to properly examine

and adequately repair a fourth degree extension of the

episiotomy.’’ The allegations were premised on the existence of a fourth degree extension. Only if there had

been a fourth degree extension would Girard have failed

to properly inspect, diagnose, and repair it. In the

absence of a fourth degree extension, there was no

breach of the standard of care.

The jury interrogatories establish that the jury found

that the plaintiffs had established the standard of care

but that there was no breach of that standard of care.

This necessarily means that the jury found that the

plaintiff sustained a third degree, not a fourth degree,

episiotomy extension. As explained, applying the plaintiffs’ alleged standard of care, there would be a breach

in the present case only if there had been a fourth

degree extension, and there would be no breach only

if there had been a third degree extension. Accordingly,

whether Girard properly conducted the digital rectal

exam did not affect the jury’s verdict. As a result, the

inapplicable acceptable alternatives charge, which was

premised on the proper inspection technique, did not

taint the jury’s verdict. Because the jury’s finding centered on whether there was a third or fourth degree

episiotomy extension, the inclusion of this charge,

which had no bearing on the degree of the extension,

would not have confused or misled the jury and, there-
fore, was harmless. See State v. Torrence, supra, 196

Conn. 438 (holding that instructional error was not misleading, and thus not harmful, when error did not affect

verdict, which was premised on different issue); State

v. Acklin, supra, 9 Conn. App. 666 (same).

The out-of-state cases on which the plaintiffs rely in

support of their argument that an inapplicable acceptable alternatives charge necessarily confuses and misleads the jury are distinguishable. In those cases, the

erroneous acceptable alternatives charge was deemed

harmful on the ground that it was reasonably probable

that it affected the jury’s verdict because the primary

issue in each case was the propriety of the defendant

physician’s decision to use a certain inspection, diagnosis, or treatment method. See Hirahara v. Tanaka, 87

Haw. 460, 464–65, 959 P.2d 830 (1998) (improper wording of acceptable alternatives charge was harmful

where charge was central to issue of liability); Rogers

v. Meridian Park Hospital, 307 Or. 612, 619–20, 772

P.2d 929 (1989) (same); Yates v. University of West

Virginia Board of Trustees, 209 W. Va. 487, 496, 549

S.E.2d 681 (2001) (‘‘[b]ecause the primary issue . . .

concerned the propriety of [the defendants’] decision

to use interventional radiology rather than immediate

surgery as the preferred method of treating [the plaintiff

patient’s] blockage, we find that there is a reasonable

probability that the jury’s verdict was influenced by the

improper instruction’’); see also Leazer v. Kiefer, 821

P.2d 957, 962 (Idaho 1991) (erroneous charge ‘‘misguided the jury in determining negligence’’).

The plaintiffs respond that harm is evident in the

present case because the improper charge was repeated

and it was the last charge presented to the jury. We have

considered these factors in determining the prejudice

of an inapplicable charge and have found them persuasive in cases in which the inapplicable charge tainted

the jury’s verdict and, thus, served to confuse and mislead the jury. See Velardi v. Selwitz, supra, 165 Conn.

639 (instructional error was harmful when it involved

jury’s determination of liability); Conlon v. G. Fox &

Co., supra, 165 Conn. 113 (‘‘[the inapplicable charge]

clearly was involved in [the jury’s] deliberations’’). As

discussed, the acceptable alternatives charge did not

taint the verdict in the present case because it did not

affect the basis of the jury’s verdict—the degree of

the episiotomy extension. See, e.g., Burke v. Mesniaeff,

supra, 334 Conn. 121–22 (holding that improper instruction was harmless when it did not taint jury’s verdict).

Additionally, although the trial court repeated the

acceptable alternatives charge in response to the jury’s

request for clarification, the court first reread the standard charge on medical malpractice, which was based

on the model medical malpractice jury instructions on

the Judicial Branch website. The court then reread the

acceptable alternatives charge. The court continued its
supplemental charge by reminding the jury that ‘‘the

plaintiffs have the burden of proving by a fair preponderance of the evidence that [Girard’s] conduct represented a breach of the standard of care. Under our law,

the plaintiffs must prove this by expert testimony. More

specifically, they must establish through expert testimony both what the standard of care is and their allegation that [Girard’s] conduct represented a breach of

that standard. . . . Specifically . . . the plaintiffs

have alleged that [Girard] . . . [breached the standard

of care] in that she failed to identify a fourth degree

extension of the median episiotomy and failed to properly examine and adequately repair a fourth degree

extension of the episiotomy.’’ Although the trial court

repeated the acceptable alternatives charge, the court

put it into context by reemphasizing that the plaintiffs’

allegations were premised on a fourth degree extension,

which must exist for the inspection technique issue to

be material, thus diminishing any harm caused by the

repetition of the inapplicable charge.9

The plaintiffs further argue that harm is evidenced by

the jury’s having sought clarification on the inapplicable

charge. Although the jury sought clarification on the

instruction, it did not seek clarification on the acceptable alternatives charge. Rather, the jury sought clarification on what evidence it could consider in determining whether the plaintiffs satisfied their burden of

establishing the standard of care. The jury also sought

clarification on whether the plaintiffs were asserting

that a digital rectal exam had to be conducted before

the repair to comply with the standard of care.

The plaintiffs argue that, although these questions

were not specifically about the acceptable alternatives

charge, they show that the jury was focused on the

method of examination—the subject of the acceptable

alternatives charge. We are not persuaded. These questions show that the jury was focused on the standard

of care. As discussed, the standard of care involved the

inspection technique only if the jury first found that a

fourth degree extension had existed, which it did not

find on the basis of its finding that there was no breach

of the standard of care. Thus, the jury’s focus on the

standard of care did not necessarily suggest a focus on

the acceptable alternatives charge.

Finally, the plaintiffs argue that the acceptable alternatives charge was harmful because it exculpated

Girard and improperly interfered with the jury’s determination of the experts’ credibility by suggesting that

both inspection methods were reasonable as long as

Girard used her ‘‘best judgment.’’ We disagree.

It is true that, if a jury finds that expert testimony

establishes that there were acceptable alternative methods for conducting an inspection and that a defendant

reasonably chooses from among those options, the

defendant avoids liability. See Wasfi v. Chaddha, supra,
218 Conn. 209 (‘‘physicians may choose between alternative acceptable methods without incurring liability

solely because that choice may have led to an unfortunate result’’). This does not mean, however, that charging the jury on the acceptable alternatives doctrine

exculpates the defendant. As this court in Wasfi

explained, the doctrine does not ‘‘[shield] a defendant

physician from liability every time experts differ concerning his choice of techniques.’’ Id., 211. Rather, the

jury still must determine whether both of the competing

methods were acceptable in the medical community

and whether the defendant’s use of a particular method

breached the standard of care.

Despite its flaws, the acceptable alternatives charge

did not require the jury to exculpate Girard. Rather, the

charge informed the jury that it must decide whether

there was more than one recognized method of inspection and, if there was, then determine whether the

‘‘method [used] was consistent with the skill, care, and

diligence ordinarily had and exercised by other specialists in her field in like cases at the time that she provided

treatment.’’ Similarly, the charge did not interfere with

the jury’s determination of credibility by suggesting that

both methods of inspection were reasonable. The

charge properly left the jury to determine whether the

expert testimony established that both methods of

inspection were accepted in the medical community.

Moreover, the jury did not need to reach this issue

unless it found that a fourth degree episiotomy extension had existed. It did not.

Accordingly, on the basis of this record, the trial

court’s improper inclusion of the acceptable alternatives charge was harmless.10

II

The plaintiffs’ final claim of instructional error is that

the trial court’s supplemental charge to the jury improperly limited their allegations of breach of the standard

of care to improper inspection, rather than more

broadly to improper inspection, diagnosis, and repair

of a fourth degree episiotomy extension.11 According

to the plaintiffs, even if Girard properly conducted the

inspection, she still could have breached the standard

of care by failing to diagnose and repair a fourth degree

episiotomy extension. The plaintiffs argue that this

improper supplemental instruction was harmful

because, by narrowing the allegations of breach to the

inspection technique, the trial court focused the jury’s

attention on the improper acceptable alternatives

charge, which was based on the inspection technique.

The defendants respond that the trial court’s supplemental instruction was proper because, although the

plaintiffs alleged that Girard improperly inspected, diagnosed, and repaired the episiotomy extension, the

improper diagnosis and repair were premised on the
improper inspection. In other words, the only evidence

of breach of the standard of care was that Girard

improperly conducted the digital rectal examination

postrepair, causing her not to be able to visualize the

tear in the rectal mucosa, and thereby causing her not

to be able to diagnose and repair that tear. We agree

with the defendants.

The following additional procedural history is relevant to this claim. After being instructed, the jury sought

clarification on whether ‘‘the plaintiff[s] assert that an

internal rectal exam must be completed before repair

as a required component of the standard of care.’’ The

trial court proposed to respond that ‘‘[t]he plaintiffs’

expert, [Young], testified that an internal rectal exam

must be performed before a repair in order to comply

with the standard of care.’’ The plaintiffs’ counsel

objected, arguing that the jury did not ask what the

expert had testified to but what the plaintiffs were

asserting, which was broader—that the standard of care

required Girard to properly inspect, diagnose and repair

the fourth degree extension. The plaintiffs’ counsel recognized the specifics of Young’s testimony but argued

that the trial court’s response was too narrow. The trial

court disagreed and gave the supplemental instruction

that it had proposed.

‘‘In evaluating a claim that a supplemental charge is

erroneous we must examine both the main and supplemental charge as a whole to determine whether the

jury could reasonably have been misled. . . . We must

recognize, however, that [a] supplemental charge . . .

enjoy[s] special prominence in the minds of the jurors

because it is fresher in their minds when they resume

deliberation.’’ (Citation omitted; internal quotation

marks omitted.) State v. Williams, 199 Conn. 30, 41,

505 A.2d 699 (1986). Although ‘‘additional instructions

given in immediate response to a request are more

informal and expressed with less exactness than are

studiously prepared formal charges’’; (internal quotation marks omitted) id., 43; ‘‘[t]he test to be applied to

the charge is whether it fairly presents the case to the

jury.’’ State v. Edwards, 163 Conn. 527, 537, 316 A.2d

387 (1972).

The trial court’s response to the jury’s question

regarding the plaintiffs’ allegations was consistent with

the evidence presented at trial and how the plaintiffs’

counsel had argued the plaintiffs’ case to the jury. See

Blatchley v. Mintz, 81 Conn. App. 782, 787–88, 841 A.2d

1203 (‘‘court properly tailored its instructions to reflect

the issues actually before the jury’’), cert. denied, 270

Conn. 901, 853 A.2d 519 (2004); see also Stokes v. Norwich Taxi, LLC, supra, 289 Conn. 476, 485 (charge

must be supported by evidence and adapted to issues in

case). The evidence offered in support of the plaintiffs’

theory that Girard breached the standard of care came

from Young, who testified that Girard improperly failed
to conduct the digital rectal exam before the episiotomy

repair, which caused her to misdiagnose and improperly

repair the fourth degree extension as a third degree

extension because a fourth degree extension can be

identified only before the repair. The plaintiffs’ allegations that Girard breached the standard of care by failing to diagnose and repair a fourth degree extension

were premised on a failure to conduct the digital rectal

exam prior to the repair. The plaintiffs’ counsel argued

in summation that the plaintiff sustained a fourth degree

episiotomy extension and that, because there was a

fourth degree episiotomy extension, the standard of

care required a prerepair digital rectal exam, without

which Girard could not properly diagnose and repair the

degree of the extension.12 Under the plaintiffs’ theory

of the case, the jury first had to find that a fourth degree

episiotomy existed and then had to find that Girard

failed to properly diagnose and repair it, which was

caused by Girard’s failure to conduct a prerepair digital

rectal exam. In light of this and the more informal nature

of supplemental instructions, it was proper for the trial

court to instruct the jury that the plaintiffs were

asserting that a prerepair digital rectal exam was a

component of the standard of care.

The crux of the plaintiffs’ argument appears to be

that, in light of the trial court’s improper charge on

the acceptable alternatives doctrine, its supplemental

charge was improper because, when looking at those

two portions of the jury instructions together, the jury

could have improperly found that, although there was

a fourth degree episiotomy extension, insofar as both

inspection methods were reasonable, there was no

breach of the standard of care, which was limited to

the inspection technique. We are not persuaded that

the supplemental instruction improperly limited the

allegations and had this effect.

The jury asked if a prerepair exam was a component

of the plaintiffs’ alleged standard of care. The trial court

responded in the affirmative. Nothing about this

response negates the plaintiffs’ allegation that, as a

result of breaching the standard of care by failing to

perform a prerepair inspection, Girard failed to diagnose and repair a fourth degree extension. Under the

plaintiffs’ theory of the case, assuming there was a

fourth degree episiotomy extension, a failure to perform

the prerepair exam was a necessary first component

in a breach of the standard of care.

Furthermore, this charge must be read in context

as part of the entire instruction. See, e.g., Stewart v.

Federated Dept. Stores, Inc., 234 Conn. 597, 606, 662

A.2d 753 (1995). In its original charge, the trial court

stated that the plaintiffs had alleged that Girard

breached the standard of care ‘‘in that she, [a], failed

to identify a fourth degree extension of the median

episiotomy or, [b], failed to properly examine and ade-
quately repair a fourth degree extension of the episiotomy.’’ After the supplemental charge at issue, the jury

requested clarification on what evidence it could consider in determining if the plaintiffs established the

standard of care, in response to which the trial court

again stated the plaintiffs’ allegations regarding breach

of the standard of care as ‘‘[a failure] to identify a fourth

degree extension of the median episiotomy and [a failure] to properly examine and adequately repair a fourth

degree extension of the episiotomy.’’ This charge, which

was nearly identical to the language that the plaintiffs

sought to have the court include in the first supplemental charge, was the last charge the jury heard. See footnotes 9 and 11 of this opinion. Thus, to the extent that

the first supplemental charge did limit the plaintiffs’

allegations, the second supplemental charge cured any

error. See State v. Snook, 210 Conn. 244, 271, 555 A.2d

390, cert. denied, 492 U.S. 924, 109 S. Ct. 3258, 106 L.

Ed. 2d 603 (1989). When we examine the charge as a

whole, as we must, we conclude that it is clear that

the trial court instructed the jury that the plaintiffs’

allegations regarding breach of the standard of care

included insufficient inspection, diagnosis, and repair

of a fourth degree episiotomy extension. The jury

instructions as a whole would not have confused and

misled the jury into determining that, even if a fourth

degree episiotomy extension had existed, Girard did

not breach the standard of care.

Accordingly, we conclude that the trial court did not

improperly limit the plaintiffs’ allegations regarding

breach of the standard of care in responding to the

jury’s request for clarification of the jury instructions.

The judgment is affirmed.

In this opinion the other justices concurred.

1 Because Michael Kos’ loss of consortium claims are derivative of Laura

Kos’ medical malpractice claims, we refer to Laura Kos as the plaintiff, to

Michael Kos by his name, and to them collectively as the plaintiffs.

2 Lawrence + Memorial Hospital and Thameside OB/GYN Center, P.C.,

also were named as defendants, but the plaintiffs withdrew the action as

to those defendants prior to trial. We therefore refer in this opinion to Girard

and Physicians for Women’s Health, LLC, as the defendants.

3 A first degree episiotomy extension is a superficial laceration involving

the vaginal mucosa—the lining of the vagina—and the perineal body. A

second degree episiotomy extension is a deeper tear into the tissue, going

beyond the vaginal mucosa and perineal body into the bulbocavernosus

muscles, as well as extending into the perineal body—the area between the

anus and the vagina. A third degree episiotomy extension includes a second

degree extension and extends to the perineal muscles and anal sphincter

but does not include the rectal mucosa—the lining of the rectum. A fourth

degree episiotomy extension includes a third degree extension and extends

to the rectal mucosa.

4 The plaintiffs also contend that the acceptable alternatives charge was

improper because it included language regarding ‘‘schools of thought’’ and

‘‘best judgment.’’ The plaintiffs argue that the ‘‘schools of thought’’ wording

improperly conflates the acceptable alternatives doctrine with the schools

of thought doctrine, two separate and distinct doctrines. The plaintiffs also

argue that the ‘‘best judgment’’ wording improperly injects a subjective

standard into a medical malpractice action, excusing Girard from liability

and interfering with the jury’s credibility determination. The plaintiffs did

not object to the wording of the charge at the time of trial. Rather, they

took a general exception to the charge being given at all, arguing that
no evidence supported it and that it improperly interfered with the jury’s

credibility determination because this kind of charge suggested that both

methods of inspection were reasonable. At no time did the plaintiffs request

that the trial court modify the language of the charge in any way. Although

the plaintiffs mentioned the phrase, ‘‘schools of thought,’’ they did not do

so to object to the inclusion of this language in the charge but, in passing,

in summarizing the holding of Wasfi v. Chaddha, 218 Conn. 200, 588 A.2d

204 (1991).

An objection to the giving of a jury instruction does not preserve an

objection to the specific wording of the instruction. See State v. Coleman,

304 Conn. 161, 174, 37 A.3d 713 (2012); id., 173–74 (defendant failed to

preserve specific objection to wording of charge when he objected at trial

to charge on different ground); State v. Johnson, 288 Conn. 236, 287–88,

951 A.2d 1257 (2008) (same); State v. Melendez, 74 Conn. App. 215, 229, 811

A.2d 261 (2002) (‘‘although defense counsel objected to giving the jury an

instruction on consciousness of guilt, he did not object at any time to the

wording of the instruction as given and therefore failed to preserve that

issue for review’’), cert. denied, 262 Conn. 951, 817 A.2d 111 (2003).

Although we hold that the claim was not properly preserved, we note

that this court in Wasfi indicated that the phrase, ‘‘schools of thought,’’

should not be included as part of the acceptable alternatives charge; Wasfi

v. Chaddha, supra, 218 Conn. 208–209; see also id., 208 (noting ‘‘unfortunate

use’’ of schools of thought language); but nonetheless concluded that the

inclusion of this phrase in the acceptable alternatives charge, which was

otherwise substantively correct, did not constitute instructional error or

confuse the jury, which would not have been aware of the legal difference

between the two doctrines. Id., 209. We also rejected the argument that the

acceptable alternatives doctrine opened a ‘‘Pandora’s Box’’ by injecting a

subjective standard into the objective medical malpractice test. Id., 211.

Specifically, we disagreed that the doctrine would shield a defendant from

liability when experts have differing opinions or would take credibility

determinations away from the jury because the doctrine requires defendants

to offer expert evidence that acceptable alternatives exist and to persuade

the jury to credit this evidence. Id.

5 Flynn testified that, even if Girard had breached the standard of care

by diagnosing and repairing a fourth degree episiotomy extension as a third

degree extension, the plaintiff would not have necessarily sustained any

damages because such a small hole would have healed on its own.

6 The trial court instructed the jury as follows: ‘‘In this case, you have

heard testimony from different physicians as to different ways to inspect and

diagnose an episiotomy extension. Where there is more than one recognized

method of treatment and not one of them is exclusively and uniformly used

by all physicians in good standing, a health care provider is not negligent

in selecting one, which, according to his or her best judgment, is best suited

for the patient’s needs, even if it turns out to be a selection not favored by

another physician. Now, there may be more than one established system

of treatment. The law does not favor or give exclusive recognition to any

particular system of treatment over another. The law is that a physician is

not bound to use any particular method or medical school of thought in

treating a patient. When a physician of ordinary skill and learning recognizes

more than one method of treatment as proper, the physician may adopt

any such method without subjecting himself or herself to liability for an

unfortunate result, so long as such method was consistent with the skill,

care, and diligence ordinarily had and exercised by other specialists in her

field in like cases at the time that she provided the treatment. Thus, if there

was more than one established method of treatment recognized at the time,

the test is not whether the physician adopted a method someone else might

have adopted but, rather, whether the method adopted was one that was

in compliance with reasonable skill, care, and diligence required of the

particular school of thought embracing the method.’’

7 The plaintiffs further argue that the harm caused by the improper charge

was worsened by the improper wording of the charge, confusing the acceptable alternatives doctrine with the schools of thought doctrine and injecting

a subjective ‘‘best judgment’’ standard into the objective medical malpractice

standard. As explained in footnote 4 of this opinion, the merits of these

claims are unpreserved. Nevertheless, we note that, in Wasfi, we held that the

inclusion of the phrase, ‘‘schools of thought,’’ in an acceptable alternatives

charge, although incorrect, does not confuse or mislead the jury. See footnote

4 of this opinion. The charge at issue in the present case is nearly identical

to the charge in Wasfi, and, as in that case, we fail to discern how the
inclusion of this phrase would create any additional confusion for the jury.

Moreover, to the extent that the plaintiffs contend that the ‘‘best judgment’’

language was harmful, we address that argument, but, to the extent that

the plaintiffs attempt to raise their unpreserved claim regarding whether

the inclusion of the ‘‘best judgment’’ language was improper, we decline to

review that issue.

8

In the operative fifth amended complaint, the plaintiffs allege that Girard

breached the standard of care by failing ‘‘to identify a [fourth] degree extension of the median episiotomy’’; failing ‘‘to perform a proper and adequate

episiotomy repair’’; and failing ‘‘to properly examine the episiotomy repair

after it was complete.’’ To conform the allegations to the evidence presented

at trial, the plaintiffs proposed to amend the complaint to allege that Girard

breached the standard of care by failing ‘‘to identify a [fourth] degree extension of the median episiotomy’’ and by failing ‘‘to properly examine and

adequately repair the [fourth] degree extension of the episiotomy.’’ The trial

court denied the plaintiffs’ request to amend the complaint, but the trial

court’s instruction regarding the plaintiffs’ allegations nevertheless tracked

how the plaintiffs had set forth those allegations in their proposed sixth

amended complaint.

9 Additionally, contrary to the plaintiffs’ contention, the acceptable alternatives charge was not the last charge that the jury heard, but, rather, the last

charge was on the burden of proof and a summary of the plaintiffs’ allegations

centering on the disputed existence of a fourth degree extension. See State

v. Torrence, supra, 196 Conn. 437–38 (‘‘trial court’s concluding instruction

. . . refocused the jury’s attention on the key concept [at issue] . . . and,

in effect, acted as a curative instruction’’).

10 Alternatively, the plaintiffs ask this court to abolish the acceptable

alternatives doctrine because it is unnecessary in light of the standard jury

instruction regarding medical malpractice, and because it misleads the jury

and interferes with its credibility determination by suggesting that a physician is not liable if the physician’s methods were subjectively reasonable.

In light of this court’s stare decisis jurisprudence and our holding that the

acceptable alternatives charge in this case was harmless, we decline to

take this opportunity to abolish the acceptable alternatives doctrine. ‘‘The

doctrine [of stare decisis] requires a clear showing that an established rule

is incorrect and harmful before it is abandoned.’’ (Emphasis added; internal

quotation marks omitted.) Conway v. Wilton, 238 Conn. 653, 660–61, 680 A.2d

242 (1996). Moreover, because we conclude that the acceptable alternatives

doctrine was not applicable in this case, we determine that this is not the

appropriate case for deciding whether the doctrine should be abolished.

11 Specifically, after the plaintiffs’ counsel objected to the trial court’s

proposed supplemental instruction as being too narrow, counsel requested

that the trial court respond to the jury’s question that the plaintiffs’ allegations were that Girard breached the standard of care by failing to ‘‘carefully

inspect and properly diagnose a fourth degree laceration.’’

12 The plaintiffs’ counsel argued: ‘‘So, step one is, was it a fourth degree

[laceration]? . . . It was clearly a fourth degree laceration. [Step two is,

was] it properly repaired? Well, no, it wasn’t because [Girard] diagnosed

what she thought and repaired what she thought was a third degree because

she didn’t properly examine the perineum for the laceration. So, that gets

you through the standard of care. Properly examine, properly diagnose,

properly repair. She didn’t see the fourth degree because she didn’t do the

examination, [so] she didn’t repair the fourth degree because she thought

it was a third degree.’’