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WASFI v. CHADDHA3/26/1991
neral nature as the foreseeable risk created or increased by the physician's negligence." (Emphasis added.) The court instructed more specifically that, "if you find that Dr. Chaddha could in 1981 reasonably foresee or anticipate that Mrs. Wasfi was likely to suffer the harm of the general nature that she did suffer as a result of his
failure to skillfully diagnose the acoustic neuroma neither physician would escape legal responsibility for those injuries or harm." (Emphasis added.)
Wasfi, in excepting to "the language dealing with foreseeability" in the third charge, also claimed "that the error that was made [in the first charge] on the subject matter is one that cannot and has not been corrected." We disagree. The first charge at some points had phrased the foreseeability element of proximate cause in terms of producing "a result which was not reasonably foreseeable" and foreseeing "the condition or conditions that Mrs. Wasfi claims to have suffered," and an appropriate exception was taken. We are convinced that the third charge did not contain these infirmities and sufficiently stated the test we have used for determining proximate cause, "whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence." Merhi v. Becker, 164 Conn. 516, 521, 325 A.2d 270 (1973); see Tetro v. Stratford, 189 Conn. 601, 605, 458 A.2d 5 (1983); Coburn v. Lenox Homes, Inc., 186 Conn. 370, 384, 441 A.2d 620 (1982).
Another claim of error in the jury instructions is that the withdrawal of the second charge, which virtually adopted Wasfi's request verbatim, deprived her of a charge on the principle that a defendant whose negligence is a substantial factor in producing an injury is liable "for damages caused by the negligence of a doctor in treating the injury which the tort-feasor caused, provided the injured party used reasonable care in selecting the doctor." Anderson & McPadden, Inc. v. Tunucci, 167 Conn. 584, 596, 356 A.2d 873 (1975). The evidence in this case, however, provided no basis for applying this principle, because it is undisputed that
Wasfi never followed the course of treatment recommended by Riccio and her condition was not made worse as a result of her contact with him. The court properly withdrew this charge because it was inapplicable to the evidence and would only have confused the jury on the issue of intervening cause, which the court purported to address. Furthermore, we must infer from the verdict in favor of Riccio, in which we have found no flaw, that the jury found that he had committed no wrongful act that resulted in any harm to Wasfi. Even if this request of the plaintiff were appropriate, therefore, its omission would have been a harmless error.
Wasfi's final claim is that the third charge did not contain language to indicate that, for an intervening force to excuse a person from being liable for harm that his negligence would otherwise be deemed a substantial factor in producing, it must entirely supersede the operation of the antecedent negligence. The third charge included the instruction that "a defendant is not liable if the plaintiff's harm was caused by an independent source which intervenes between that defendant's negligence and the plaintiff's resulting condition and produces a result which was not reasonably foreseeable by the defendant." We agree that this charge was deficient in failing to inform the jury that the "independent source" must be of such great causal significance as to attenuate the effect of the prior negligence to the extent that it can no longer be regarded as a substantial factor in producing the harm
involved. See Kiniry v. Da
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