Cavallaro v. Hospital of Saint Raphael

• Decision Date: 18 October 2005
• Docket Number: (AC 25495).
• Citation: 882 A.2d 1254,92 Conn.App. 59
• Court: Connecticut Court of Appeals
• Parties: REGINA CAVALLARO, ADMINISTATRIX (ESTATE OF PETER CAVALLARO) v. HOSPITAL OF SAINT RAPHAEL ET AL.

92 Conn.App. 59

882 A.2d 1254

REGINA CAVALLARO, ADMINISTATRIX (ESTATE OF PETER CAVALLARO) v. HOSPITAL OF SAINT RAPHAEL ET AL.

(AC 25495).

Appellate Court of Connecticut.

Argued June 3, 2005.

Officially released October 18, 2005.

Schaller, Gruendel and Harper, Js.

William F. Gallagher, with whom, on the brief, were Hugh D. Hughes, Erica W. Todd and Joseph W. Trotta, for the appellant (substitute plaintiff).

Michael D. Neubert, with whom, on the brief, was Maureen Sullivan Dinnan, for the appellees (defendants).

Opinion

SCHALLER, J.

In this medical malpractice action, the substitute plaintiff, Carol Monday,¹ appeals from the judgment of the trial court rendered in favor of the defendants² after it granted their motion for summary judgment. On appeal, the plaintiff claims that the court improperly (1) precluded the decedent's treating physician from testifying as an expert witness on the issue of causation and (2) concluded that certain notations found in the decedent's hospital records could not be introduced in lieu of expert testimony that generally is required to establish causation in a claim for medical malpractice. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to our resolution of the plaintiff's appeal. On May 7, 1997, the plaintiff's decedent, Peter Cavallaro, entered the defendant hospital to undergo bilateral knee replacement. In preparation for the procedure, the decedent had blood drawn for use in the event that a blood transfusion was necessary. After the surgery, a transfusion was necessary. A unit of blood that did not belong to the decedent was administered to him. The plaintiff, in the complaint, alleged that following the blood transfusion, the decedent exhibited "tendencies of a reaction to the transfusion, specifically feeling extreme cold; chills; severe subjective complaints of feeling unwell; anxiety; disorientation; wheezing; headache; and shortness of breath . . . ." The plaintiff further alleged that the hospital and the defendant Lynn Plourde, a nurse on the hospital staff, failed to monitor or treat that initial reaction.

During the next eleven months, the decedent allegedly suffered from "severe, permanent and disabling injuries . . . ."³ Throughout that time period, the decedent's treating physician was Brett J. Gerstenhaber, a pulmonologist. On April 22, 1998, the decedent returned to the hospital and was admitted by Gerstenhaber with a diagnosis of acute community acquired pneumonia. Two days later, the decedent died.⁴

On May 5, 1999, the decedent's wife, Regina Cavallaro, as administratrix of his estate, brought the present medical malpractice action⁵ against the defendants. Specifically, she alleged that the blood transfusion administered to the decedent resulted in a reaction to the transfusion and that the defendants' negligence in failing to monitor or to treat that reaction resulted in injuries to the decedent that culminated in death.

More than four years passed from the initiation of the lawsuit until the commencement date of the trial, which was scheduled for the beginning of September, 2003. During that time period, the plaintiff disclosed only two expert witnesses. Specifically, the plaintiff disclosed two nurses for the purpose of testifying as to "the nursing standard of care and also as to the causal relation of the same to the incident alleged in the complaint." As of September, 2003, the plaintiff had not disclosed the decedent's treating physician, Gerstenhaber, as an expert witness. In addition, the plaintiff also had failed to respond to multiple discovery requests from the defendants' counsel as well as requests for medical authorizations.⁶

In an effort to protect his position and gain access to the medical records of Gerstenhaber, the defendants' counsel disclosed Gerstenhaber as the defendants' expert on August 25, 2003. The disclosure was worded broadly and included the possibility of causation testimony. Upon receipt of Gerstenhaber's records in September, 2003, the defendants' counsel obtained a note that indicated that Gerstenhaber had informed Regina Cavallaro in August, 1998, that the question of causation was ultimately "unanswerable."

Although the plaintiff's counsel had been informed of that information by Regina Cavallaro well before it was discovered by the defense, the plaintiff's counsel still did not contact Gerstenhaber until after the defendants had disclosed him as an expert witness. Upon speaking to Gerstenhaber in advance of trial, however, the plaintiff's counsel learned that Gerstenhaber had altered his opinion regarding causation, and now believed that there was a direct causal link between the improper transfusion and the resulting deterioration and death of the decedent.

On August 7, 2003, the defendants filed a motion for summary judgment, claiming that the two nurses disclosed by the plaintiff were not qualified to testify as to causation and that the plaintiff, therefore, had failed to disclose any experts to testify regarding causation. Subsequently, on September 10, 2003, the plaintiff disclosed Gerstenhaber and indicated that he would offer testimony as to the element of causation.⁷ In response, on September 16, 2003, the defendants filed a motion to preclude Gerstenhaber from testifying for the plaintiff on the element of causation. The defendants argued that a disclosure made "approximately four years after the case [had] been filed, three years after defendant[s] filed interrogatories and eight days after the case [had] been called in for jury selection" was a violation of the requirements of Practice Book § 13-4.

After hearing argument, the court granted the defendants' motion to preclude Gerstenhaber from testifying. Nevertheless, recognizing the effect the ruling would have on the plaintiff's case, the court asked the defendants' counsel if it would be a fair resolution to allow a short delay to give them the opportunity to depose Gerstenhaber. The defendants' counsel responded that because Gerstenhaber, unlike the experts counsel already had retained, was a pulmonologist, counsel would require at least two months to retain his own expert in that specialty. The court then vacated its order on the motion to preclude and instructed counsel to request the necessary two month continuance from the presiding judge.⁸ The presiding judge, however, was not willing to grant such a lengthy continuance and, consequently, the court precluded the testimony of the nurses as well as Gerstenhaber on the issue of causation. Subsequently, the defendants renewed their motion for summary judgment on the ground that the plaintiff had disclosed no medical expert who would be able to testify regarding causation.

The plaintiff's repeated attempts to have the court reconsider the preclusion of Gerstenhaber's expert testimony failed. The court, in a memorandum of decision filed March 9, 2004, determined that in light of the preclusion of the testimony of two nurses and Gerstenhaber, the plaintiff could not prove the essential element of causation. The court, therefore, granted the defendants' motion for summary judgment. This appeal followed. Additional facts will be set forth as necessary.

I

We first consider the plaintiff's claim that the court improperly granted the defendants' motion to preclude the expert testimony of Gerstenhaber on the issue of causation. The plaintiff argues that despite the late disclosure, she should have been permitted to call Gerstenhaber as an expert witness because he already had been disclosed as an expert by the defendant. We disagree.

As a preliminary matter, we set forth the legal principles that guide our resolution of the plaintiff's claim and identify the applicable standard of review. "[T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury." (Internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005). Generally, because the requirements for proper medical diagnosis and treatment are not within the common knowledge of laypersons, "the plaintiff must present expert testimony in support of a medical malpractice claim . . . ." Id.

Practice Book § 13-4 (4), which governs the disclosure of experts, "allows a court to preclude expert testimony if the proponent of the testimony has made a late disclosure of the expert and the late disclosure will cause undue prejudice to the moving party . . . . The moving party bears the burden of showing that it was prejudiced." Menna v. Jaiman, 80 Conn. App. 131, 138, 832 A.2d 1219 (2003). Practice Book § 13-4 (4) states in relevant part: "[A]ny plaintiff expecting to call an expert witness at trial shall disclose the name of that expert, the subject matter on which the expert is expected to testify, the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion, to all other parties within a reasonable time prior to trial. . . . If disclosure of the name of any expert expected to testify at trial is not made in accordance with this subdivision, or if an expert witness who is expected to testify is retained or specially employed after a reasonable time prior to trial, such expert shall not testify if, upon motion to preclude such testimony, the judicial authority determines that the late disclosure (A) will cause undue prejudice to the moving party; or (B) will cause undue interference with the orderly progress of trial in the case; or (C) involved bad faith delay of disclosure by the disclosing party. . . ." (Emphasis added.)

"The court's decision on whether to impose the sanction of excluding the expert's testimony concerning causation rests within the sound discretion of the court.. . . The action of the...