Dilieto v. County Obstetrics And Gynecology Group, 17471

• Court: Supreme Court of Connecticut
• Citation: 297 Conn. 105,998 A.2d 730
• Decision Date: 29 June 2010
• Docket Number: No. 17471,17744.,17471
• Parties: Michelle DiLIETO et al.v.COUNTY OBSTETRICS AND GYNECOLOGY GROUP, P.C., et al.

297 Conn. 105
998 A.2d 730

Michelle DiLIETO et al.
v.
COUNTY OBSTETRICS AND GYNECOLOGY GROUP, P.C., et al.

Nos. 17471, 17744.

Supreme Court of Connecticut.

Argued Sept. 15, 2008.
Decided June 29, 2010.

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Jeffrey R. Babbin and Erika L. Amarante, New Haven, with whom, on the briefs, were Kenneth D. Heath, Kim E. Rinehart, New Haven, Joseph M. Gillis and Seth L. Huttner, Hartford, for the cross appellants in Docket No. SC 17471 and the appellants in Docket No. SC 17744 (named defendant et al.).

William F. Gallagher, New Haven, with whom, on the brief, was Rodney S. Margol, for the appellee in Docket No. SC 17744 (substitute plaintiff).

Steven D. Ecker, Hartford, for the cross appellee in Docket No. SC 17471 (named plaintiff).

PALMER, VERTEFEUILLE, ZARELLA, SCHALLER and SULLIVAN, Js. ^*

PALMER, J.

In this medical malpractice case, which returns to us for a second time,¹ we consider two separate appeals. In the first appeal (Docket No. SC 17744), the defendant Scott Casper, a gynecologist, his employer, the named defendant, County Obstetrics and Gynecology Group, P.C. (County Obstetrics), and the defendant Yale University School of Medicine, ² appeal from the judgment of the trial court, rendered in accordance with a jury verdict in favor of the substitute plaintiff, Michael J. Daly, trustee of the bankruptcy estate of the plaintiff Robert DiLieto and his wife, the named plaintiff, Michelle DiLieto (DiLieto).³ The jury found that the defendants negligently had removed DiLieto's reproductive organs and pelvic lymph nodes and awarded Daly $5,200,000. The trial court granted Daly's motion for prejudgment interest pursuant to General Statutes (Rev. to 1997) § 52-192a ⁴ and

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rendered judgment for Daly in the amount of $11,110,045.79, including costs. On appeal,⁵ the defendants claim that the evidence was insufficient to support the findings of the jury that (1) the defendants' negligence had resulted in the unnecessary removal of DiLieto's reproductive organs and pelvic lymph nodes, (2) DiLieto suffered permanent nerve damage due to the removal of her pelvic lymph nodes, and (3) DiLieto was entitled to damages stemming from the removal of her pelvic lymph nodes. The defendants also claim that the trial court improperly (1) charged the jury on several specifications of negligence that were not supported by the evidence or time barred, or both, and (2) awarded offer of judgment interest pursuant to § 52-192a because the offers of judgment that DiLieto had filed were invalid, and the trial court improperly concluded that the substitution of Daly as the plaintiff retroactively validated them. We reject the defendants' claims of evidentiary insufficiency and instructional error. We agree with the defendants, however, that the trial court improperly concluded that the substitution of Daly retroactively validated the offers of judgment on file such that interest began to accrue on the date that the action was commenced. We conclude, rather, that the substitution of Daly validated the offers of judgment as of the date of the substitution such that interest began to accrue on that date. Accordingly, we affirm in part and reverse in part the judgment of the trial court.

In the second appeal (Docket No. SC 17471),⁶ the defendants claim that the trial court improperly concluded that certain slides containing “recuts” of DiLieto's uterine tissue, which the defendants had sent to outside experts for evaluation in preparation of trial, were part of DiLieto's

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“health record” and, therefore, were required to be disclosed to her pursuant to General Statutes § 19a-490b(a).⁷ We conclude that the defendants' claim is moot because, during the pendency of this appeal, the defendants disclosed the slides to DiLieto, and, therefore, the defendants no longer can be afforded any practical relief. Accordingly, we dismiss the second appeal.

The record reveals the following facts, which the jury reasonably could have found, and the following procedural history. In February, 1995, DiLieto sought treatment from Casper for prolonged menstrual bleeding and cramping in her pelvic region. After a noninvasive mode of treatment proved to be ineffective, Casper recommended that DiLieto, who was forty-three years old at the time, undergo a diagnostic dilation and curettage (D & C) ⁸ to obtain samples of tissue from the endometrial lining of her uterus. Casper performed the D & C in early April, 1995, and sent the tissue samples to Thomas P. Anderson, a pathologist at Waterbury Hospital, who diagnosed DiLieto's condition as a “florid endometrial stromal proliferation consistent with low grade endometrial stromal sarcoma.” Endometrial stromal sarcoma is a rare and potentially deadly malignancy. See, e.g., A. Blaustein, Pathology of the Female Genital Tract (5th Ed. 2002) pp. 586, 592. Although Anderson's diagnosis was not definitive,⁹ Casper mistakenly believed that it was conclusive. Consequently, Casper informed DiLieto that she was suffering from a rare and potentially fatal disease, and that the only treatment for it was surgery, that is, a total abdominal hysterectomy to remove her uterus, and a bilateral salpingo-oophorectomy to remove her fallopian tubes and ovaries. Casper also explained to DiLieto that, during the surgery, while she was still under anesthesia, her uterus, after being removed, would be sent to the Yale ¹⁰ pathology department (pathology department) where it would be examined to determine whether

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the cancer had spread more than 50 percent through the uterine wall. If the cancer had spread to a depth of more than 50 percent, DiLieto then would undergo a pelvic lymphadenectomy, or dissection of the pelvic lymph nodes, for the purpose of determining whether the cancer had spread to other parts of her body. In addition, DiLieto most likely would require postoperative chemotherapy. DiLieto asked Casper whether, in light of the rarity of the disease, she should obtain a second opinion. Casper assured her that it would not be necessary to do so because he intended to send the pathology slides containing her tissue samples for review by the pathology department and the Yale tumor board (tumor board).¹¹ He also assured her that Peter E. Schwartz, who Casper characterized as one of the best gynecologic oncologists at Yale,¹² would be involved in the management of her case going forward. Finally, Casper informed DiLieto that, if it was determined that she required a pelvic lymph node dissection, Schwartz would perform that portion of the surgery.

DiLieto's pathology slides were sent to the pathology department for a second opinion, as promised, where they were examined by Vinita Parkash, a pathologist employed by Yale. On the basis of her examination of the slides, Parkash advised the tumor board at its April 13, 1995 meeting that she had expanded DiLieto's differential diagnosis ¹³ to include two benign conditions, namely, a leiomyoma, also known as a fibroid tumor; see, e.g., J. Berek & E. Novak, Gynecology (14th Ed. 2007) p. 469; and a stromal nodule. See, e.g., A. Blaustein, supra, p. at 585. Schwartz, however, was not present at the tumor board meeting when DiLieto's case was discussed. Schwartz later reviewed Parkash's notes from the meeting, but he misread them and did not realize prior to DiLieto's surgery that two benign conditions had been added to her differential diagnosis. Casper also did not attend the tumor board meeting and never inquired either of the pathology department as to the results of its analysis of DiLieto's pathology slides or of the tumor board with respect to its interpretation of those results. Consequently, Casper, too, did not know prior to surgery that two benign conditions had been added to the differential diagnosis. If Casper had known of the differential diagnosis prior to surgery, he would have informed DiLieto that her condition could be benign, and his approach to her treatment would have been different.

Casper performed the hysterectomy and bilateral salpingo-oophorectomy on DiLieto at Yale-New Haven Hospital on May 3, 1995. After DiLieto's uterus was removed, it was sent to the hospital's pathology laboratory for a frozen section analysis.¹⁴ While the frozen section analysis

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was being performed, Casper called Schwartz' office to inform him that they were ready for him in the operating room. Babak Edraki, a first year gynecologic oncology fellow ¹⁵ who had been assigned to perform the surgery with Schwartz, also was contacted. Edraki's understanding was that he and Schwartz were to perform a pelvic lymph node dissection on a patient who just had undergone a hysterectomy and bilateral salpingo-oophorectomy for a confirmed case of endometrial stromal sarcoma. Edraki never had met DiLieto, and he had not reviewed her medical records prior to surgery. Upon being contacted, Edraki paged Schwartz to notify him that Casper was ready for them. Schwartz told Edraki to “go ahead and start” and that “he would be there shortly....” In his March 5, 1998 deposition testimony, which was entered into evidence and read to the jury, Schwartz testified that, by the time he arrived in the operating room, the pelvic lymph node dissection already was under way. Schwartz further testified that, as he was entering the room, the pathologist who had performed the frozen section analysis, Jose Costa, reported over the intercom that there was no evidence of endometrial stromal sarcoma in DiLieto's uterus. ¹⁶ By that time, however, Edraki, who was performing his first unsupervised pelvic lymph node dissection, already had removed two of DiLieto's lymph nodes.¹⁷ In doing so, he had made deep incisions into DiLieto's pelvic region and had inserted between thirty and forty metal surgical clips ¹⁸ to control...