Constantine v. Schneider

• Citation: 715 A.2d 772,49 Conn.App. 378
• Decision Date: 14 July 1998
• Docket Number: No. 16454,16454
• Court: Appellate Court of Connecticut
• Parties: Traci CONSTANTINE et al. v. Loren T. SCHNEIDER.

Page 772

715 A.2d 772

49 Conn.App. 378

Traci CONSTANTINE et al. v. Loren T. SCHNEIDER.

No. 16454.

Appellate Court of Connecticut.

Argued Jan. 26, 1998.

Decided July 14, 1998.

Steven E. Arnold, Hartford, for appellants (plaintiffs).

Robert F. Kappes, Hartford, for appellee (defendant).

Before FOTI, LANDAU and HEALEY, JJ.

HEALEY, Judge.

This is a medical malpractice case instituted by the plaintiffs, Traci Constantine and her husband Michael Constantine, against the defendant, Loren J. Schneider, a podiatrist, arising out of injuries to Traci Constantine's right foot. ¹ The jury returned a plaintiffs' verdict of $114,000, ² which the trial court refused to set aside or to increase with an additur.

On appeal, the plaintiffs claim that the trial court improperly (1) refused to allow them to amend and conform their complaint to their proof of damages and (2) ruled that the defendant's surveillance videotape of Traci was inadmissible because it was a privileged work product. We affirm the judgment of the trial court.

I

A

The facts relating to the claim concerning the proposed amendment are as follows. After an accident in May, 1990, Traci consulted the defendant. His initial diagnosis in May, 1990, was tibial sesamoiditis with possible fracturing of the right foot. When he initially took X rays, the defendant showed them to Traci and with a pen circled the tibial sesamoid bone to show which bone was the problem. In August, 1990, he diagnosed her right front tibial sesamoid bone as chronically fractured. After a period of conservative treatment, the defendant recommended that Traci undergo a surgical removal of the tibial sesamoid bone of her right foot. She agreed and the defendant performed the surgery. In doing so, however, he removed the fibular sesamoid bone and not the tibial sesamoid bone. ³

After the surgery, Traci continued to have much pain. Her mobility was quite difficult even though she was receiving physiotherapy and attempting to wear an orthotic device on her right foot, as prescribed by the defendant. On September 21, 1990, she returned to the defendant's office and saw the defendant's associate. Among other things, the associate took X rays of her right foot and the X ray revealed the absence of the fibular sesamoid. She visited the defendant's office several times thereafter, including December 17, 1990, when the defendant took X rays. Some time later, Traci went to the defendant's office and picked up the rest of her file as well as the original X rays of her foot taken by the defendant. On January 1, 1991, Traci went through her file and paperwork including the consent forms and looked at the picture that the defendant had drawn of the bones of the foot. She noticed that the defendant had circled the outside bone, which was the fibular sesamoid, and he had written that this was the bone removed. She believed that the wrong bone had been removed. The next day she had an appointment for physical therapy at the defendant's office, and she planned to confront the defendant. The defendant, however, was not present and Traci spoke to the defendant's associate about her concerns. At that time, she showed the associate, inter alia, the original X rays of May, 1990. The next day the defendant telephoned Traci and acknowledged that he had made a mistake, and he apologized. At that time, he told her that if she wanted to have the correct bone removed, he would to do it free of charge. ⁴ That was the last conversation that Traci had with the defendant.

Shortly thereafter, Traci contacted Peter Barnett, ⁵ a Hartford orthopedic surgeon, to discuss her case, and she brought him her file and X rays to see if he would perform the surgery to remove the tibial sesamoid bone. Barnett performed the surgery, and, according to Barnett, after that surgery, Traci had very little pain, except at the surgical site. She still experienced difficulty with her mobility in her daily activities and she was prescribed handmade orthotics to wear in both shoes. Barnett treated Traci until January, 1992.

Traci saw two orthopedic surgeons and one podiatrist at various times after she discontinued treatment with Barnett. ⁶ From August 18, 1992, until August 31, 1995, Traci did not receive either medical or podiatric treatment. The podiatrist was treating her at the time of trial and testified as her expert witness. He testified about his treatment, her pain, her potential for future surgery, the type of employment she could expect to perform, and her mobility.

B

We turn now to the plaintiffs' request to amend their original complaint (1992 complaint) on July 16, 1996, the first day of trial. The 1992 complaint alleged, inter alia, that the causes of Traci's postsurgical right foot pain and discomfort and the February 8, 1991 surgical removal of the tibial sesamoid bone by an orthopedic surgeon were the defendant's (1) diagnosis that Traci was suffering from tibial sesamoiditis with a possible fracture of the right foot, (2) recommendation after a period of conservative treatment that she undergo a surgical procedure known as a tibial sesamoidectomy, (3) performance of surgery on September 18, 1990, (4) informing her on January 3, 1991, that he had mistakenly removed the fibular sesamoid bone instead of the tibial sesamoid bone and (5) improper removal of the fibular sesamoid bone. The original complaint specifically alleged the following in paragraph nine: "The Plaintiff's injuries, losses and damages were proximately caused by the carelessness and negligence of the Defendant, Loren J. Schneider, in one or more of the following ways:

"a. In that he removed the fibular sesamoid instead of the tibial sesamoid from the Plaintiff's right foot which necessitated a second surgical procedure resulting in the complete removal of both sesamoid bones;

"b. In that he failed to perform an adequate and thorough inspection of the operative site during surgery to ensure that the correct bone would be removed;

"c. In that he failed in his continuing duty as a podiatrist to advise the Plaintiff in a timely fashion of the cause of the Plaintiff's persistent post-surgical complaints of right foot pain and discomfort." The complaint then alleged her claims as to the damages sustained as the result of the carelessness and negligence of the defendant. ⁷

The proposed amended complaint (1996 complaint) ⁸ substantially tracked the negligence allegations of the 1992 complaint. ⁹ The allegations of negligence in the 1996 complaint were, however, not only greater in number but also more expansive. Those allegations were set out in paragraph ten as follows: "The Plaintiff's injuries, losses and damages were proximately caused by the carelessness and negligence of the Defendant, Loren J. Schneider, his agents, servants and/or employees, in one or more of the following ways:

"a. In that he failed to provide the Plaintiff with additional and alternative medical care and treatment to resolve or minimize her right foot pain;

"b. In that he failed to seek or obtain expert radiological and other medical opinions to assist him with determining the correct and proper diagnosis and treatment of her right foot pain;

"c. In that he failed to perform an adequate and thorough review of her medical chart and x-rays in preparation for and prior to the surgery that he had recommended be performed;

"d. In that he removed the fibular sesamoid bone instead of the tibial sesamoid bone from the Plaintiff's right foot;

"e. In that he failed to perform an adequate and thorough inspection of the operative site during and at the surgery to ensure that the correct sesamoid bone was to be removed;

"f. In that he failed to perform an adequate and thorough inspection of the post-surgical interoperative x-ray that he took of her right foot immediately after his surgery to discover that he had removed the wrong sesamoid bone from her right foot;

"g. In that he failed in his continuing duty as a podiatrist to discover and disclose to the Plaintiff in a timely fashion his surgical malpractice as being the resultant cause of the Plaintiff's persistent post-surgical problems with her right foot pain, discomfort and disability;

"h. In that after he had discovered his surgical malpractice, he failed to timely disclose to the Plaintiff that he had removed the wrong sesamoid bone from her right foot; and

"i. In that his failure to timely disclose to the Plaintiff his surgical malpractice prevented her from timely receiving the medical care and treatment required because of the further injury he had caused to her right foot." The allegations as to Traci's damages, as set out in her 1996 complaint, essentially tracked her damages allegations in the 1992 complaint.

The plaintiffs sought to file the 1996 complaint "to make their allegations more specific and more complete." The plaintiffs argued in the motion to amend that the allegations of negligence contained in the proposed paragraph ten of the 1996 complaint make more specific that which was alleged in paragraph nine of the 1992 complaint, which indicated that it was not exclusive in its allegations. The plaintiffs maintain that it was only during voir dire that defense counsel acknowledged that the defendant unintentionally took out the incorrect bone and that, therefore, there was no prejudice to the defendant from the proposed amendment. ¹⁰

Defense counsel objected to the amendment and argued "I'm going to admit liability. I'm going to admit that ... in the original complaint the first allegation of negligence, that my client is responsible for removing the wrong bone. And for that wrong bone. And on that basis I'd ask that the motion be denied."

At the outset of the trial, the court denied the motion to amend and said that "since [the defendant was] admitting liability ... I do not think it is necessary to allege any more about negligence" and "insofar as any of these statements made in your amended...