Buckley v. Lovallo

• Decision Date: 18 September 1984
• Docket Number: No. 2372,2372
• Citation: 481 A.2d 1286,2 Conn.App. 579
• Court: Connecticut Court of Appeals
• Parties: Ann BUCKLEY v. Frank LOVALLO et al.

Page 1286

481 A.2d 1286

2 Conn.App. 579

Ann BUCKLEY v. Frank LOVALLO et al.

No. 2372.

Appellate Court of Connecticut.

Argued May 1, 1984.

Decided Sept. 18, 1984.

Richard Fuchs, Bridgeport, with whom, on the brief, was Brenda C. Morrissey, Bridgeport, for appellant-cross appellee (plaintiff).

Thomas L. Brayton, Waterbury, for appellee-cross appellant (defendant Frank Lovallo).

Herbert J. Shepardson, Rocky Hill, with whom, on the brief, was Joseph Adinolfi, Jr., Hartford, for appellee (defendant Sharon Hosp., Inc.).

Before DANNEHY, C.P.J., and DUPONT and BORDEN, JJ.

BORDEN, Judge.

This is a medical malpractice action brought by the plaintiff against Frank Lovallo, a general surgeon, and Sharon Hospital. The plaintiff appeals ¹ from the judgment, claiming error in the direction of the verdict for the hospital, and in an evidentiary ruling and the jury charge affecting damages. Lovallo cross appeals, claiming insufficiency of the evidence against him. We find error only on the plaintiff's appeal regarding the issue of damages.

The jury could reasonably have found the following facts. The plaintiff sought a breast reduction operation after losing approximately seventy pounds. Her breasts, even after the weight loss, remained heavy and pendulous. She suffered pain and had deep ridges on her back where her brassiere straps cut into her shoulders. She had difficulty finding clothes that fit, and felt topheavy.

The plaintiff sought the advice of Robert I. Scileppi, a plastic surgeon in Poughkeepsie, New York, who told her that an operation was medically indicated but recommended that she see her regular physician before going forward with the operation. She went to see her regular physician who recommended that a local doctor, Lovallo, perform an operation. After an examination by Lovallo and a discussion of the operation and fees with him, the plaintiff decided to have Lovallo perform the operation. Lovallo told the plaintiff he had performed this operation many times, that her breasts would be "contoured fine" and that her nipples would be reduced in size to conform to the new size of her breasts. Lovallo performed a bilateral reduction mammoplasty using a Conway-type procedure, which resulted in visible welt-like scars above the inframammary crease, flat and misshapen breasts, and overlarge nipples which were insensate and misplaced. The plaintiff suffered adverse psychological reactions to these physical conditions.

The trial court directed a verdict for the hospital and denied the plaintiff's motion to set aside this verdict. The claim against Lovallo was submitted to the jury which returned a plaintiff's verdict for $30,000. The plaintiff moved for an additur and to set the verdict aside as to damages only. These motions were denied. Lovallo moved for a judgment notwithstanding the verdict, which the court denied.

I

The court correctly granted the hospital's motion for a directed verdict. The plaintiff's claim against the hospital was based on the theory of corporate negligence. Her claim was in essence that the hospital was negligent in failing to promulgate rules and regulations, in granting surgical privileges to Lovallo which permitted him to perform a procedure which he was unqualified to perform, and in failing to evaluate and monitor his professional competence. She argues that she produced sufficient evidence to permit these claims to go to the jury. We disagree.

Corporate negligence is the failure of the officers or directors who constitute the governing board of a corporation, acting as a board, to maintain the standard of conduct required of the particular corporation, rather than the personal negligence of the corporation's ordinary employees. Bader v. United Orthodox Synagogue, 148 Conn. 449, 452-53, 172 A.2d 192 (1961); Tocchetti v. Johnson Memorial Hospital, 130 Conn. 623, 627-28, 36 A.2d 381 (1944). Pursuant to her complaint, the plaintiff was required to produce expert testimony of the standard of care applicable to similar hospitals similarly located, and expert testimony that the hospital's conduct did not measure up to that standard. Pisel v. Stamford Hospital, 180 Conn. 314, 334-35, 430 A.2d 1 (1980); Parowski v. Bridgeport Hospital, 144 Conn. 531, 534, 134 A.2d 834 (1957); McDermott v. St. Mary's Hospital Corporation, 144 Conn. 417, 422, 133 A.2d 608 (1957). The failure of a hospital to have written rules for its conduct is insufficient to establish a violation of the standard of care in the absence of a proper showing that having such rules is the standard practice. Evans v. Lawrence & Memorial Associated Hospitals, Inc., 133 Conn. 311, 316, 50 A.2d 443 (1946). ²

The evidence presented here was insufficient to establish a standard of care applicable to the hospital or to establish that any such standard was violated. The plaintiff argues that the testimony of Paul Sternlof, the executive director of the hospital, was sufficient to establish the required standard of care. This argument is without merit. Sternlof testified to the standards of the Joint Commission on Accreditation of Hospitals (JCAH), a voluntary accrediting organization to which the hospital belonged and which had accredited the hospital, and to the regulations of the hospital and its medical staff. His testimony is bereft, however, of any suggestion that these standards and regulations constituted a standard of care applicable to similar hospitals similarly located, or that the hospital's conduct here failed to meet any such standard. Cf. Pisel v. Stamford Hospital, supra, 180 Conn. at 335-39, 430 A.2d 1. Indeed, his testimony was that the criteria of the hospital, at the time of the operation by Lovallo, for the granting of surgical privileges were usual, customary and historic.

The evidence, therefore, failed to establish the standard of care applicable to the hospital or a breach of any such standard. A directed verdict is appropriate "when the jury could not reasonably and legally have reached any other conclusion." Sestito v. Groton, 178 Conn. 520, 522, 423 A.2d 165 (1979).

II

The evidence presented against Lovallo was sufficient to be presented to the jury and thus his motion for a directed verdict was properly denied. The plaintiff was required to establish, through expert testimony, the standard of care to which this defendant was to be held and a violation of that standard. Pisel v. Stamford Hospital, supra 180 Conn. at 334, 430 A.2d 1. Lovallo claims that the evidence produced by the plaintiff was insufficient to establish the applicable standard of care or that a violation of that standard proximately caused the plaintiff's injuries. We disagree.

The duty of care to which a physician is held in a malpractice action is "that degree of care, skill and diligence which physicians in the same general neighborhood and in the same general line of practice ordinarily possess and exercise in like cases." Fitzmaurice v. Flynn, 167 Conn. 609, 616, 356 A.2d 887 (1975), quoting Snyder v. Pantaleo, 143 Conn. 290, 292, 122 A.2d 21 (1956). ³ Expert testimony to establish this standard is required; Fitzmaurice v. Flynn, supra; but the qualifications of the expert witness are not measured by whether the expert is in the same specialty as the defendant; id., 167 Conn. at 617, 356 A.2d 887; nor by whether the expert practiced in the locale where the incident occurred; Pisel v. Stamford Hospital, supra; but by whether the expert knows what the standard of care is in the locale where the defendant practices sufficiently for the witness to give an opinion as to the defendant's conformity with that standard. Fitzmaurice v. Flynn, supra, 167 Conn. at 618, 356 A.2d 887.

The plaintiff produced as expert witnesses two plastic surgeons who practice in New York in towns near Connecticut. Philip C. Bonanno testified as follows. He had performed seventy-five bilateral reduction mammoplasties prior to 1977 and was familiar with the standards for performing this operation in Connecticut as they were in 1977. Bilateral reduction mammoplasty falls into the realm of plastic surgery. He did not know of any general surgeons who performed the operation nor the standards they would use. The procedure which the defendant used to reduce the plaintiff's breasts was the Conway reduction mammoplasty with free nipple grafts, but, given the standards in Connecticut in 1977, a procedure more in keeping with the preservation of the aesthetic appearance of the breasts should have been used. The Weiss or Strombeck operative procedures with a McKissock procedure for transposition of the nipple should have been used. The procedure performed on the plaintiff was below the standard of care for performing the Conway procedure in 1977 and corrective surgery was required.

Robert I. Scileppi was the doctor whom the plaintiff initially consulted and to whom she returned after the unsatisfactory operation. He testified as follows. He had performed between fifty and sixty bilateral reduction mammoplasties from 1971 to 1981 and was familiar with the standard of care for doctors performing this operation in the general neighborhood of Sharon, Connecticut in 1977 . The standards for performing this operation were the same among specialty groups, such as plastic surgeons and general surgeons. The Conway-type operative procedure was the incorrect procedure to be used on the plaintiff, and the results of this procedure show a deviation from the standard of care. While he personally does not like the Strombeck procedure, and uses a modified version of the McKissock procedures himself, use of the Strombeck procedure or a modification of that procedure would have been acceptable by a plastic surgeon in 1977. There were twenty-five recognizably different procedures for breast reduction developed since 1923, but the plaintiff did not fall into the category of women, usually older, who require a Conway-type operation.

A verdict should be directed "only...