Ardoline v. Keegan

• Decision Date: 05 January 1954
• Citation: 102 A.2d 352,140 Conn. 552
• Court: Connecticut Supreme Court
• Parties: ARDOLINE v. KEEGAN Supreme Court of Errors of Connecticut

Page 352

102 A.2d 352

140 Conn. 552

ARDOLINE v. KEEGAN

Supreme Court of Errors of Connecticut.

Jan. 5, 1954.

Cyril Coleman, Hartford, for appellant (defendant).

Harry J. Zigun, Bridgeport, with whom, on the brief, was Samuel Engelman, Bridgeport, for appellee (plaintiff).

Before INGLIS, C. J., and BALDWIN, O'SULLIVAN, QUINLAN and WYNNE, JJ.

INGLIS, Chief Justice.

This is an action for malpractice. The trial court directed a verdict for the defendant on the grounds (1) that there had been no evidence that the defendant's treatment of the plaintiff's decedent was not in accordance with the requisite standard of care, and (2) that there had been no evidence of a causal relationship between the defendant's treatment and the death of the plaintiff's decedent. After verdict the court reversed its position and granted a motion to set the verdict aside. From this action the defendant has appealed.

The defendant offered no evidence, but from that submitted by the plaintiff the jury could reasonably have found the following facts: On January 10, 1951, the plaintiff's decedent consulted the defendant, a physician and surgeon, at his office in Bridgeport, complaining of a headache and that her nose was blocked up. At that time she was forty-six years old, was overweight and at various times during the preceding five or six years had been suffering from hypertension. Upon examining her, the defendant stated that there was a polyp in her nose. He removed the polyp surgically and gave her two prescriptions, one for codeine and the other for a 1 per cent solution of pontocaine, with instructions to use the latter as a nasal spray. During the evening the pontocaine solution was sprayed into her nose on two occasions. She then became pale and sweaty and her lips began to get blue.

On the following day she continued pale and sweaty and slept a great deal of the time. The spray was used twice. At about 6 o'clock in the evening, after members of her family had attempted unsuccessfully to summon the defendant, they called Dr. Bernstein, the decedent's family physician. He found her in a stuperous condition with a high temperature. He gave her penicillin and suggested to members of her family that they continue their efforts to summon the defendant. The plaintiff's decedent died shortly after 4 o'clock the following morning.

In addition to introducing evidence as to those facts, the plaintiff produced two doctors, Dr. Moses D. Deren and Dr. Sidney D. Jacobson. Dr. Deren testified that after having been admitted to practice in 1933 he practiced in New York but, for the six years prior to the trial, he had practiced in Bridgeport, his specialty being internal medicine. He stated that the standard procedure in Connecticut in regard to the use of pontocaine is to use it in accordance with the directions issued by those who manufacture it. No evidence was offered of what those directions were. The witness did testify, however, that the standard practice in the use of the drug is the same in Connecticut as it is in New York.

So far as Dr. Jacobson's testimony is pertinent to the issues on this appeal, it was as follows: He is a physician of many years' experience in New York City but has never practiced in Connecticut. He is familiar with the drug pontocaine and it is used for 'topical application,' that is, application to the surface of the body including the mucous membranes. He was asked: 'Do you have any other source of information which would qualify you to testify as to how the drug pontocaine is administered in the State of Connecticut?' He answered: 'Yes. My source of information is sufficient to cover that.' Then followed this question: 'Do you know in what manner the drug pontocaine is administered in the State of Connecticut, Dr. Jacobson?' His reply was: 'Yes, it's never administered by spray.' This was the only expert testimony in the case bearing on the question whether the defendant had failed in his treatment of the decedent, to meet the standard of care current in the neighborhood of Bridgeport.

In reviewing a ruling of a trial court upon a motion to set aside a verdict, we are concerned primarily with whether the court has abused its legal discretion. See Hagstrom v. Sargent, 137 Conn. 556, 561, 79 A.2d 189. In determining this the unquestioned rule is that "great weight is due to the action of the trial court, and every reasonable presumption should be given in favor of its correctness." Dudas v. Ward Baking Co., 104 Conn. 516, 518, 133 A. 591, 592, Roma v. Thames River Specialties Co., 90 Conn. 18, 20, 96 A. 169. It must always be borne in mind that litigants have a constitutional right to have issues of fact decided by the jury and not by the court. Schlag v. Paffney, 103 Conn. 683, 685, 131 A. 420; Robinson v. Backes, 91 Conn. 457, 460, 99 A. 1057. In the present case this consideration tends to support the setting aside of the verdict because the verdict had been reached by the direction of the court and not by the jury passing on the questions of fact. It is proper for a trial court, using due caution, and in the exercise of its discretion, to set aside a verdict when satisfied that its instructions to the jury or its rulings on evidence were erroneous and that those erroneous instructions or rulings were consequential enough to have had a substantial effect on the verdict. Munson v. Atwood, 108 Conn. 285, 288, 142 A. 737.

Upon the trial of the present action the plaintiff presented a case in which the proof of malpractice was very tenuous and in which there was no evidence of causation. The trial court, after reviewing the evidence, came to the conclusion that the testimony of Dr. Jacobson, supplemented by that of Dr. Deren, was sufficient to carry the case to the jury. It also concluded that it had improperly excluded proffered evidence of causation and that, therefore, its direction of the verdict was erroneous. The question before us is whether in making that decision it abused its discretion.

To recover in a malpractice action against a physician the plaintiff must prove that the defendant failed to exercise that degree of care, skill or diligence ordinarily had and exercised by physicians engaged in the same line of practice in the general neighborhood where the treatment complained of was administered. Sheridan v. Quarrier, 127 Conn. 279, 281, 16 A.2d 479; Force v. Gregory, 63 Conn. 167, 169, 27 A. 1116, 22 L.R.A. 343. Ordinarily this proof must rest upon the testimony of an expert witness who is qualified to express an opinion as to the standard of care customarily exercised by physicians in the general neighborhood with reference to the diagnosis and treatment of the disease with which the plaintiff was afflicted. It is ordinarily requisite that such an expert testify that the defendant's conduct did not measure up to that standard. Haliburton v. General Hospital Society, 133 Conn. 61, 65, 48 A.2d 261; Frogge v. Shugrue, 126 Conn. 608, 612, 13 A.2d 503; Person v. Lilliendahl, 118 Conn. 693, 695, 172 A. 94; Chubb v. Holmes, 111...