DiLieto v. County Obstetrics & Gynecology Group, PC

• Decision Date: 29 July 2003
• Docket Number: (SC 16698).
• Citation: 265 Conn. 79,828 A.2d 31
• Court: Connecticut Supreme Court
• Parties: MICHELLE DILIETO ET AL. v. COUNTY OBSTETRICS AND GYNECOLOGY GROUP, P.C., ET AL.

265 Conn. 79

828 A.2d 31

MICHELLE DILIETO ET AL. v. COUNTY OBSTETRICS AND GYNECOLOGY GROUP, P.C., ET AL.

(SC 16698).

Supreme Court of Connecticut.

Argued October 24, 2002.

Officially released July 29, 2003.

Sullivan, C. J., and Borden, Palmer, Vertefeuille and Zarella, Js. William F. Gallagher, with whom was Hugh D. Hughes, for the appellant (substitute plaintiff).

Frank H. Santoro, with whom, on the brief, were Paul T. Edwards and Joyce A. Lagnese, for the appellee (defendant Thomas P. Anderson).

Jeffrey R. Babbin, with whom was Victor A. Bolden, for the appellee (defendant Yale University School of Medicine).

Opinion

VERTEFEUILLE, J.

The dispositive issue in this appeal is whether the trial court improperly interpreted General Statutes § 52-184c to require the exclusion of the testimony of an expert witness proffered by the plaintiff trustee in bankruptcy, Michael J. Daly.¹ The plaintiff appeals from the judgment of the trial court in favor of the defendants Yale University School of Medicine (Yale) and Thomas P. Anderson, a physician, after a jury trial in this medical malpractice action.²

On appeal, the plaintiff claims that the trial court improperly: (1) determined that the plaintiff was not entitled under General Statutes § 20-7c to obtain Michelle DiLieto's pathology slides; (2) instructed the jury that the plaintiff had judicially admitted certain facts alleged in both the initial complaint and a subsequent amended complaint; (3) excluded the testimony of the plaintiff's expert witness because the proffered witness was not a "health care provider" licensed in Connecticut; and (4) precluded DiLieto from testifying as to what course of treatment she might have chosen had she been informed that her condition was possibly benign. We conclude that the trial court's exclusion of the testimony of the plaintiff's expert witness was improper, and, accordingly, we reverse the judgment of the trial court and order a new trial against Yale.³ We address the plaintiff's three remaining issues on appeal because they are likely to arise again in the new trial.

The jury reasonably could have found the following facts. In February, 1995, DiLieto sought medical attention because of intense and prolonged bleeding during her menstrual period. DiLieto consulted the defendant Scott Casper, an obstetrician-gynecologist employed by the named defendant, County Obstetrics and Gynecology Group, P.C. (County Obstetrics). After a noninvasive mode of treatment proved ineffective, Casper recommended that DiLieto undergo a diagnostic dilation and curettage (D & C).

After the D & C was performed, a sample of DiLieto's uterine tissue was sent to Anderson, a pathologist, at Waterbury Hospital. Anderson examined the tissue grossly and microscopically, and consulted with his colleagues. He diagnosed the specimen as a "florid endometrial stromal proliferation consistent with a low grade endometrial stromal sarcoma."⁴ (Emphasis added.) Endometrial stromal sarcoma is a rare and potentially deadly malignancy. Anderson, who had no contact with DiLieto and had no involvement in the case beyond his review and analysis of the tissue, signed a written report containing his diagnosis and submitted a copy of the report to Casper.⁵

After Casper received the diagnosis over the telephone from another pathologist in Anderson's group, Casper contacted DiLieto and asked that she come to his office to discuss the diagnosis with him in person. Casper, who characterized Anderson's diagnosis as being a definitive finding of malignancy, explained to DiLieto that the pathologist report indicated that she had a stromal sarcoma, a rare uterine malignancy. Casper further explained that the general treatment for the malignancy involved total hysterectomy and bilateral salpingo-oophorectomy, which consists of the removal of the uterus, ovaries and fallopian tubes. Additionally, Casper told DiLieto that her pathology slides would be sent to Yale-New Haven Hospital for further review.

Casper consulted with Peter E. Schwartz, a professor of obstetrics and gynecology at Yale, who asked Yale's pathologists to review DiLieto's slides. Yale professors Maria Luisa Carcangiu and Vinita Parkash, both of whom were pathologists, reviewed the slides and agreed that they evidenced endometrial stromal proliferation consistent with endometrial sarcoma. Parkash subsequently presented DiLieto's case to the Yale tumor board, which met once a week and was made up of attending physicians from the divisions of gynecologic oncology, gynecologic pathology and radiation oncology. The tumor board generally attempts to reach a consensus and make recommendations for the appropriate treatment in each case presented to the board.

The tumor board agreed with Anderson's assessment and the independent assessments of Parkash and Carcangiu, but added a third possible condition to the differential diagnosis.⁶ The tumor board determined that special stains would be necessary in order to distinguish between stromal proliferation and a benign condition of the underlying uterine muscle tissue (myometrium) known as "highly cellular leiomyoma." The ordered stains, however, could not have distinguished between benign and malignant stromal proliferation.⁷ Parkash and Carcangiu viewed the specially stained slides and noted that the tumor fragments did not stain positively for a substance called desmin, which is typically found in smooth muscle tissue. The pathologists determined that the slides supported Anderson's original diagnosis of an endometrial stromal proliferation consistent with endometrial stromal sarcoma.⁸

Schwartz subsequently advised Casper of the pathologists' findings and recommended a hysterectomy, a bilateral salpingo-oophorectomy and a pelvic lymph node dissection⁹ because of the possible spread of the malignancy to the lymph nodes. In May, 1995, Casper performed surgery on DiLieto and removed her uterus, fallopian tubes and ovaries. Casper then ordered a frozen section analysis¹⁰ of the excised tissue. The frozen tissue analysis did not reveal any evidence of sarcoma.

Casper then had Schwartz and Babak Edraki, a surgeon, summoned to the operating room to perform the lymph node sampling, which involved the removal of two of DiLieto's lymph nodes. Parkash later examined the excised nodes along with the hysterectomy sample and concluded that the lesion was likely benign. As a result of the total hysterectomy, DiLieto experienced the symptoms of menopause, including estrogen deficiency. After DiLieto experienced other symptoms following the surgery, including pelvic discomfort and pain, she sought further treatment from a neurologist and a pathologist in the Boston, Massachusetts area. The pathologist reviewed DiLieto's pathology slides and concluded that DiLieto's uterine tissue sampled during the original D & C likely implicated a benign leiomyoma or tumor. The pathologist submitted his findings to DiLieto's family practice physician, who advised DiLieto that she had not had cancer.

DiLieto then brought this action against Casper and County Obstetrics, against Yale as the employer of Parkash, Edraki, and Schwartz, and against Anderson. See footnote 2 of this opinion. DiLieto claimed, inter alia, that: Anderson had diagnosed her condition improperly and negligently had failed to inform Casper that her condition was possibly benign; Casper and County Obstetrics negligently failed to diagnose her condition, failed to communicate adequately with Yale, and negligently allowed the lymph node surgery to continue despite the lack of evidence of malignancy; and Parkash, Schwartz and Edraki had diagnosed her condition inaccurately and that their failure to communicate with each other and DiLieto led to the unnecessary performance of the lymph node dissection. The jury returned a verdict for Anderson and Yale, finding that neither had violated the applicable standard of care. The jury was unable to reach a verdict regarding Casper and County Obstetrics. The plaintiff moved for a new trial against all of the defendants and Casper moved for judgment in his favor. The trial court denied both motions and rendered judgment for Anderson and Yale and ordered a retrial against Casper and County Obstetrics. This appeal followed.¹¹

I

The plaintiff first claims that the trial court improperly interpreted General Statutes § 52-184c¹² to exclude the testimony of the plaintiff's expert witness, John Shepherd, a physician from England who is not a licensed physician in Connecticut. Shepherd was to have testified, inter alia, that Casper and Schwartz breached the prevailing standard of care when they failed to run imaging tests and other diagnostic procedures in addition to the special stains. The defendants respond that the trial court properly precluded Shepherd from testifying because he was not "a health care provider" pursuant to § 52-184c, which incorporates by reference the definition of health care provider found in General Statutes § 52-184b.¹³ Section 52-184b defines health care provider as a person licensed to provide health care in Connecticut. We agree with the plaintiff.

The following additional facts and procedural history are relevant to the resolution of this claim. The plaintiff disclosed eleven experts in addition to DiLieto's treating physicians. Shepherd, one of these experts, was a London-based gynecological oncologist who had been trained, in part, in the United States. Prior to trial, the defendants moved to exclude Shepherd's expert testimony, contending that he did not meet the criteria required under § 52-184c. The trial court granted the motion to exclude on the basis that § 52-184c incorporates the definition of "health care provider" set forth in § 52-184b (a), which provides that a health care provider means a person "licensed by this state to provide health care or professional services...." Shepherd therefore did not testify at trial. We first set forth...