Amsden v. Fischer

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

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). 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 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 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 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 admit evidence under the Pawlinski standard, we conclude that the court reached the proper decision, notwithstanding its basis for granting the motion as a failure to implead Ashmead or to plead a special defense. "We may affirm a trial court's decision that reaches the right result, albeit for the wrong reason." State v. Albert, 50 Conn. App. 715, 728, 719 A.2d 1183 (1998), aff'd, 252 Conn. 795, 750 A.2d 1037 (2000).² We conclude, therefore, that the court did not abuse its discretion in granting the motion to exclude evidence of a subsequent physician's treatment.

II

The defendant next claims that the court improperly refused to instruct the jury on intervening cause. We are not persuaded.

The court provided the following instruction to the jury: "If you find there exists different possibilities as to the cause of the plaintiff's injury, then you may find the evidence relative to the cause of the plaintiffs injury is too conjectural or uncertain to determine if the defendant's actions were a substantial factor in causing it. If that is the case, you should find in favor of [the defendant]."³ The defendant contends that this instruction on causation was inadequate.

"Our standard of review on this claim is whether it is reasonably probable that the jury was misled.... The test of a court's charge is not whether it is as accurate upon legal principles as the opinions of a court of last resort but whether it 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.... Therefore, jury instructions need not be exhaustive, perfect, or technically accurate. Nonetheless, the trial court must correctly adapt the law to the case in question and must provide the jury with sufficient guidance in reaching a correct verdict." (Internal quotation marks omitted.) Marshall v. O'Keefe, 55 Conn. App. 801, 804-805, 740 A.2d 909 (1999), cert. denied, 252 Conn. 918, 744 A.2d 438 (2000).

As we stated in part I of this opinion, the court correctly excluded expert testimony placing Ashmead in the chain of causation. Therefore, the court's subsequent refusal to instruct the jury on intervening causation was correct in law, adapted to the issues and sufficient for the jury's guidance. See Cross v. Huttenlocher, 185 Conn. 390, 394, 440 A.2d 952 (1981).

III

The defendant's final claim is that the court improperly failed to direct a verdict in his favor or to set aside the jury's verdict for the plaintiff. The defendant argues that because the plaintiffs expert witness was not sufficiently familiar with the procedure to establish the requisite standard of care for a medical malpractice action, the defendant's motion to direct or to set aside the verdict should have been granted. We disagree.

"Our review of a trial court's decision denying a motion for a directed verdict, or refusing to set aside a verdict ... requires us to consider the evidence in the light most favorable to the prevailing party, according particular weight to the congruence of the judgment of the trial judge and the jury, who saw the witnesses and heard their testimony .... The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion.... A jury verdict should not be disturbed unless it is against [the weight of the] evidence or its manifest injustice is so plain as to justify the belief that the...