Connecticut Supreme Court Lets $12 Million Medical Malpractice Verdict Stand

The state's high court upheld the multimillion-dollar verdict for Vivian Gagliano, whose hernia procedure was terribly botched.

By Robert Storace
Friday, August 17, 2018

The state Supreme Court has overturned a Connecticut Appellate Court's ruling, and affirmed a jury's $12 million medical malpractice award for a botched hernia procedure.

In its Aug. 10 ruling the state's high court disagreed with the Connecticut Appellate Court's ruling on Danbury Hospital's liability for the actions of a fourth-year surgical resident.

At trial, both sides had agreed that the surgical resident, Venkata Bodavula, accidentally perforated Vivian Gagliano's bowel with a surgical instrument, causing sepsis and other complications during a July 2008 procedure. But they disagreed on whether the hospital was liable.

In its strongly worded 5-0 ruling, Justice Andrew McDonald, writing for the court, found: "The Appellate Court incorrectly concluded that the evidence was insufficient to support the jury's finding that Bodavula was an actual agent of the hospital when he participated in performing Vivian's surgery and that the hospital, therefore, could not be held vicariously liable for Vivian's injuries. The totality of the evidence, including the hospital's house staff manual, witness testimony, and the patient consent form that Vivian signed ... provided a sufficient basis for the jury to conclude that the hospital had the general right to control Bodavula as a resident, such that he was the hospital's actual agent prior to and during the course of Vivian's surgery."

The state Supreme Court affirmed the jury's verdict and remanded the case to the Connecticut Appellate Court.

"The hospital has an appeal on a separate issue that was not addressed by the [Supreme] Court," said Alinor Sterling, one of three attorneys representing the Gagliano family. "We believe that issue is a minor one and will be resolved."

At issue, Sterling said, is a separate payment agreement between Bodavula's insurance carrier and the Gagliano family. The agreement during trial called on Gagliano to receive $1 million from Bodavula's carrier. The hospital subsequently said it should be off the hook for the remainder of the money because Gagliano had received $1 million. "My client will be getting her money," said Sterling, who is with Bridgeport's Koskoff Koskoff & Bieder.

Sterling told the Connecticut Law Tribune Friday that Gagliano, who is now 70 years old, went to the hospital for a simple outpatient hernia procedure by surgeon Joseph Gordon.

"She is expecting her surgeon to do the surgery," Sterling said. "While she is under anesthesia the hospital sends a resident to assist with the surgery. Her surgeon did not ask for the resident and did not seek the resident's assistance. But because the hospital sent the resident in, he allowed the resident to take part in the surgery."

That is when, Sterling said, Bodavula, using a bladeless optical trocar, perforated the bowel. The trocar is a screwdriver-shaped device commonly used in hernia operations.

Sterling called the hospital's initial position that it was not responsible for the actions of its resident "very dangerous."

"This decision by the Supreme Court is very important for patient safety. It says that hospitals are subject to the same rules as any other corporation," he said.

The hospital's main argument in its appeal was that there was insufficient evidence for the jury to conclude that Bodavula acted as the hospital's agent when performing the surgery. Hospital officials claimed that, even if the resident was liable, the hospital was not responsible for him because he was a joint resident who also worked at Sound Shore Medical Center in New Rochelle, New York.

"It was an interesting position to take, since he was practicing at Danbury Hospital," Sean McElligott, an attorney with the Koskoff law firm, told the Connecticut Law Tribune at the time of the appeal.

Sterling said Gagliano is pleased with the Supreme Court's ruling.

"It's important to her that this does not happen to another patient in the future," Sterrling said. "Something terrible happened to her and she is hoping, through this case, that at least there is a lesson learned from her terrible experience."

Today, Sterling said, Gagliano, a Redding resident, "can walk, but she walks slowly. Her life has been completely changed. She used to enjoy going to church, but she cannot sit comfortably anymore."

The hospital was represented by Michael Rigg of O'Brien, Tanski & Young. Rigg did not respond to a request for comment Friday. Andrea Rynn, the hospital's public relations manager, also did not respond to a request for comment.

Sterling was assisted on the case by Katherine Mesner-Hage and Josh Koskoff.

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