Amsden v. Fischer, (AC 19452)

• Court: Appellate Court of Connecticut
• Writing for the Court: SCHALLER, J.
• Citation: 771 A.2d 233,62 Conn. App. 323
• Parties: LOOMIS AMSDEN v. RICHARD FISCHER
• Docket Number: (AC 19452)
• Decision Date: 20 March 2001

62 Conn. App. 323
771 A.2d 233

LOOMIS AMSDEN
v.
RICHARD FISCHER

(AC 19452)

Appellate Court of Connecticut.

Argued June 6, 2000.

Officially released March 20, 2001.

Schaller, Zarella and Peters, Js.

Karen K. Clark, with whom, on the brief, was Maria S. Spalding, for the appellant (defendant).

62 Conn. App. 324

Neil Johnson, for the appellee (plaintiff)

Opinion

SCHALLER, J.

The defendant, Richard Fischer, appeals from the judgment of the trial court in favor of the plaintiff, Loomis Amsden, rendered after a jury trial in this medical malpractice action. The defendant claims on appeal that the court improperly (1) excluded the testimony of his expert witness on the issue of causation, (2) refused to instruct the jury on intervening cause and (3) failed to direct a verdict in his favor or to set aside the jury's verdict for the plaintiff. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our disposition of this appeal. This action arose out of a surgical procedure that the defendant performed on the plaintiff to alleviate carpal tunnel entrapment on March 2, 1993. The plaintiff claimed that as a result of the procedure, he suffered median nerve damage in his right hand, resulting in permanent disability.

After postoperative treatment with the defendant, the plaintiff consulted Duffield Ashmead on November 23, 1993. Ashmead is a physician who specializes in reconstructive surgery and microsurgery. His examination of the plaintiffs symptoms, which included diminished sensation in the fingers and virtually no sensation in the thumb, led him to conclude that the plaintiffs median nerve had been damaged during his earlier carpal tunnel release surgery. Ashmead performed two separate reconstructive surgeries on the plaintiffs median nerve, which involved use of the plaintiff's healthy nerve to bridge a gap in the damaged median nerve. Ashmead rated the plaintiffs condition as 44 percent permanently impaired.

At trial, the plaintiff offered the testimony of his expert witness, Gerald Sava, a surgeon who performed

62 Conn. App. 325

no more than six carpal tunnel surgeries per year. Sava had difficulty discerning from the defendant's surgical notes what the defendant had done. He testified that the numbness in the plaintiffs fingers and thumb indicated median nerve damage, and was not a risk associated with carpal tunnel release surgery. Sava further testified that the defendant breached the standard of care because an "injury with consequent significant deficit is an unacceptable consequence of surgery."

The defendant offered the testimony of his expert witness, Richard Eaton, a physician who testified that the nerves appeared to be regenerating and showing signs of improvement following the defendant's surgical procedure. Eaton stated that nerve damage is a risk of the surgery and that the defendant complied with good medical standards in caring for the plaintiff. Eaton concluded that the plaintiffs condition was not the result of the defendant's surgery and agreed with the defendant's approach.

On January 22, 1999, the plaintiff filed a motion in limine to exclude a portion of Eaton's testimony in which he stated that the plaintiffs injuries were the result of Ashmead's subsequent surgical procedures. The plaintiff asserted that the testimony was inadmissible because the defendant had not filed a special defense alleging a superseding cause of the injuries and that under the defendant's general denial, the admission of the testimony would serve only to confuse the jury. The court granted the motion. Additional facts and procedural history will be set forth as necessary.

I

The defendant claims first that the court improperly excluded the testimony of his expert witness on the issue of causation. We disagree.

"The decision to preclude a party from introducing expert testimony is within the discretion of the trial

62 Conn. App. 326

court. Sturdivant v. Yale-New Haven Hospital, [2 Conn. App. 103, 107, 476 A.2d 1074 (1984)]. On appeal, that decision is subject only to the test of abuse of discretion. Kemp v. Ellington Purchasing Corporation, 9 Conn. App. 400, 405, 519 A.2d 95 (1986). The salient inquiry is whether the court could have reasonably concluded as it did. Sturdivant v. Yale-New Haven Hospital, supra, 108." Yale University School of Medicine v. McCarthy, 26 Conn. App. 497, 500-501, 602 A.2d 1040 (1992)

The defendant argues that the testimony of his expert was admissible to establish a set of facts inconsistent with the plaintiffs claim that he proximately caused the plaintiffs injuries. The trial court refused to admit the portion of Eaton's testimony that purported to establish that the plaintiffs condition had improved through the physical therapy regimen under the defendant, but declined following the surgical procedures performed by Ashmead.

The defendant asserts that the argument is appropriately framed as the trial court's failure to admit evidence tending to negate proof of causation under the standard set forth in Pawlinski v. Allstate Ins. Co., 165 Conn. 1, 327 A.2d 583 (1973),¹ rather than the application of the well-established rule that a negligent actor is responsible for all the foreseeable consequences of his negligence. See Wasfi v. Chaddha, 218 Conn. 200, 216, 588

62 Conn. App. 327

A.2d 204 (1991). In the absence of impleading a third party based on a claim of negligence, the defendant cannot attempt to prove that another nonnegligent party is responsible. In Bradford v. Herzig, 33 Conn. App. 714, 724, 638 A.2d 608, cert. denied, 229 Conn. 920, 642 A.2d 1212 (1994), this court stated that "[i]t is axiomatic that where the negligence of two persons concurs to produce a single result, a plaintiff can elect to sue either or both.... The plaintiff had the right to choose either or both of two defendants to sue. If the defendant believed that a nonparty was responsible for some or all of the plaintiff's injuries, it was his responsibility to implead that nonparty." (Citations omitted; internal quotation marks omitted.) Since the defendant makes no claim that negligence on the part of Ashmead was the cause of the plaintiffs condition, the defendant cannot attempt to reduce his own responsibility for the foreseeable consequences of his negligence. The trial court, accordingly, did not abuse its discretion in granting the motion in limine, thereby excluding evidence relating to a subsequent physician's treatment

Although the focus of the appeal extensively attacks the trial court's decision as failure to...