Providing a classic illustration of the important distinction between permitted inference versus improper speculation, the Connecticut Appellate Court reversed a directed verdict for a primary care physician in an informed consent case where there was no direct evidence that the doctor failed to warn a deceased patient about the danger that an oral contraceptive could cause blood clots.
Forty-five year old Leeann Curran died from bilateral pulmonary emboli, caused by deep vein thrombosis, four-weeks after her primary care physician, Dr. Kroll, prescribed an oral contraceptive for menopausal symptoms.
Because Curran was dead, there was no direct evidence that the doctor failed to give Curran proper warnings about the danger of blood clots. Instead, the administrator of Curran’s estate relied on evidence that Curran began complaining of intense pain in her legs and groin; told her family that she did not know what could be causing the pain; and failed to seek medical help for the condition.
According to Dr. Kroll, though, she warned Curran about the danger that the oral contraceptive could cause an increased risk of deadly blood clots – and also told Curran that the symptoms to watch out for included pain in the legs. However, Curran’s medical chart did not say that Dr. Kroll provided these warnings.
Granting a defense request for a directed verdict, the trial judge concluded that “a failure to warn claim could not be based solely on an inference that might be drawn from the decedent’s failure to seek help.” Curran v. Kroll, 118 Conn.App. 401 (2009).
Here are highlights of the Appellate Court’s opinion (with omissions not noted in the quoted text):
Although it is the jury’s right to draw logical deductions and make reasonable inferences from the facts proven, it may not resort to mere conjecture and speculation.
In this case, in which the court directed a verdict after concluding that the plaintiff had failed to provide any evidence, either direct or circumstantial, from which the jury reasonably could have concluded that Dr. Kroll had breached the standard of care by failing to advise the decedent of the signs and symptoms associated with the risks of birth control pills, we need only determine whether the court properly concluded that such evidence was absent from the case.
We agree that there was no direct evidence that Dr. Kroll breached the standard of care; this was so because the person who could have provided such evidence was dead.
We disagree, however, that there was no circumstantial evidence that could have led to a reasonable inference if the jury had chosen to credit such evidence.
There is no distinction between direct and circumstantial evidence so far as probative force is concerned. In fact, circumstantial evidence may be more certain, satisfying and persuasive than direct evidence.
After thoroughly reviewing the record, we conclude that there was evidence to support a reasonable inference that Dr. Kroll had not advised the decedent in accordance with the proper standard of care.
Unlike Aristotelian and Thomistic logic, law does not demand metaphysical certainty in its proofs. In law, we recognize three principal proofs: beyond a reasonable doubt, which is the very high burden in a criminal case; clear and convincing evidence, required to prove fraud and certain other claims, which equates to a very high probability; and preponderance of the evidence, applied to civil claims generally, which means it is more probable than not. None of these varying proofs require absolute certainty.
To meet one’s burden of proof, evidence is necessary. This evidence comes in two forms, direct and circumstantial.
“The basic distinction between direct and circumstantial evidence is that in the former instance the witnesses testify directly of their own knowledge as to the main facts to be proved, while in the latter case proof is given of facts and circumstances from which the jury may infer other connected facts which reasonably follow, according to common experience.” 29 Am.Jur.2d 329, Evidence § 313 (1994).
Proof of a fact by the use of circumstantial evidence usually involves a two-step process. A fact is first established by direct evidence, which is ordinarily eyewitness or other direct testimony. That direct evidence can serve as a basis from which the jury infers another fact. Thus, the direct evidence may operate as circumstantial evidence from which a fact is inferred by the jury.
“When the necessity to resort to circumstantial evidence arises either from the nature of the inquiry or the failure of direct proof, considerable latitude is allowed in its reception.” 29 Am.Jur.2d 331, Evidence § 315 (2008).
“An inference is a factual conclusion that can rationally be drawn from other facts. If fact A rationally supports the conclusion that fact B is also true, then B may be inferred from A.
“The process of drawing inferences based on a rough assessment of probabilities is what makes indirect or circumstantial evidence relevant at trial. If the inference (fact B from fact A) is strong enough, then fact A is relevant to prove fact B.
“Inferences are by their nature permissive, not mandatory: although the fact proved rationally supports the conclusion the offering party hopes will be inferred, the factfinder is free to accept or reject the inference.” 1 C. Fishman, Jones on Evidence (1992) § 4:1.
Much has been written about the jury’s ability to draw inferences, but, as explained by Professor McCormick, “in few areas of the law have so many words been spoken by the courts with so little conviction.” 2 C. McCormick, Evidence (5th Ed.1999) § 338.
Just because a jury could, but is not required to, draw an inference does not mean that it is resorting to speculation.
“Inferences are based on common experience and probability. Reasonable inferences permit the jury to find the inferred fact without direct proof of that fact. Direct evidence of a fact or facts will often give rise to circumstance evidence of other fact or facts. Such inferences, if reasonable, permit the fact finder to find the inferred fact without direct proof of that fact.
“A trier is entitled to draw all reasonable and logical inferences based on the facts proved. Inferences should be based on probabilities, not possibilities, surmise, or conjecture. To state a truism, the only kind of inference the law recognizes is a reasonable one.
“Successive inferences are permissible if justified by the facts. Thus, one inference can be founded upon facts whose determination is the result of other inferences. The only question is whether the successive inferences are rationally justified by the facts.” C. Tait & E. Prescott, Connecticut Evidence (4th Ed.2008) § 4.3.1.
In this case, the court directed a verdict on the ground that a failure to warn claim could not be based solely on an inference drawn from the decedent’s failure to seek help.
Although we agree with such a statement, we conclude that there was other evidence from which such an inference reasonably could have been drawn.
The line between permissible inference and impermissible speculation is not always easy to discern. When we infer, we derive a conclusion from proven facts because such considerations as experience, or history, or science have demonstrated that there is a likely correlation between those facts and the conclusion.
If that correlation is sufficiently compelling, the inference is reasonable. But if the correlation between the facts and the conclusion is slight, or if a different conclusion is more closely correlated with the facts than the chosen conclusion, the inference is less reasonable.
At some point, the link between the facts and the conclusion becomes so tenuous that we call it speculation. When that point is reached is, frankly, a matter of judgment.
Viewing the evidence in the light most favorable to the plaintiff, we conclude the jury reasonably could have found that the decedent did not seek help from the medical community because she had no idea what was the cause of her severe leg pain; such an inference would have been reasonable in this case because the decedent had told her husband that she could not figure out why she was experiencing pain in her groin, and she had expressed to her mother that she had no idea what was the cause of her pain, and further, this puzzlement occurred one month after her office visit with Dr. Kroll.
The jury could have inferred that the reason the decedent had no idea what was the cause of her leg pain was because Dr. Kroll had not informed her adequately of the risks associated with birth control pills and had not explained fully the signs and symptoms associated with such risks, especially that the use of the pill increased the possibility of blood clots, that blood clots could be life threatening and that severe leg pain was a symptom associated with blood clots, which must be dealt with immediately.
In the present case, the evidence, viewed in the light most favorable to the plaintiff, reasonably could have led the jury to find that Dr. Kroll prescribed the birth control pill to the decedent slightly more than four weeks before the decedent’s death, and that Dr. Kroll made no notation that she had given the decedent a proper warning of the risks and the signs and symptoms associated with such risks.
When the decedent experienced severe leg pain over the course of a couple of days, she had no idea what was the cause of that pain.
Additionally, the jury could have found that persons generally seek to follow instructions of a medical nature concerning the serious symptoms associated with the side effects of medication.
These findings could have led the jury to the reasonable inference that Dr. Kroll, four weeks before the decedent’s death, had not discussed the signs and symptoms associated with the risks of birth control pills adequately with the decedent, because, if she had discussed them adequately, the decedent would have known that this might be the cause of her pain.
The decedent’s complete lack of knowledge and puzzlement as to the cause of her pain, combined with other evidence, reasonably could have led the jury to the inference that the decedent had not been informed adequately by Dr. Kroll.
Accordingly, we conclude that the court should not have directed a verdict in favor of the defendants but should have given the jury the opportunity to weigh this evidence and decide the issue.
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