Dimmock v. Lawrence & Memorial Hospital, No. X04 MMX CV 03 0104510 S (CT 1/19/2006), X04 MMX CV 03 0104510 S
| Decision Date | 19 January 2006 |
| Docket Number | No. X04 MMX CV 03 0104510 S,X04 MMX CV 03 0104510 S |
| Court | Connecticut Supreme Court |
| Parties | Susan Dimmock v. Lawrence & Memorial Hospital et al. Opinion No.: 91824 |
The plaintiff Susan Dimmock brought this case by summons and complaint dated February 6, 2003, against two physicians and their groups and the Lawrence and Memorial Hospital. The complaint alleged, in general, that back surgery which she underwent on November 9, 2000, was complicated by infections which resulted in a number of additional painful and expensive procedures. The complaint alleged that the infections were caused by professional negligence on the part of the defendants. The current dispute centers on motions by the three groups of defendants to preclude testimony by one of the expert witnesses disclosed by the plaintiff on the ground that nothing in the disclosure is relevant to the issues framed by the complaint.
The disclosure under consideration is that concerning a Dr. Sanford Davne. Some background may be useful. A scheduling order dated January 7, 2004 required the disclosure of the plaintiff's experts by no later than December 31, 2004. That date came and went with no disclosure, and on March 3, 2005, defendant Doherty and his medical group and the defendant hospital filed motions for orders to preclude any plaintiff's expert witness from testifying or, in the alternative, to compel disclosure quickly. The plaintiff countered with a request to modify the scheduling order so that plaintiff's expert witnesses would be disclosed by September 15, 2005; the original trial date of May 30, 2006, would be maintained. There was no objection to the request and the court (Quinn, J.) approved the request.
The disclosure of experts was accomplished on September 15, 2005. Of the six names disclosed, five were treating physicians and nurses who were not intended to testify about standard of care, deviations therefrom or causation. Only Dr. Sanford Davne was disclosed as an expert as to those matters, which of course are critical to an action sounding in professional negligence.
The current difficulty is that Dr. Davne apparently has nothing to say about infection. The disclosure discusses, in appropriate detail, a claimed deviation from the standard of care because "instrumentation" was not implemented in the spinal fusion. (The fusion at least initially was accomplished through the use of a bone graft, and "instrumentation" refers to the use of non-organic devices such as rods, plates or the like.) The disclosure does not say that the failure to use instrumentation resulted in any increased susceptibility to infection, nor does the disclosure have anything to say about the monitoring for and treatment of infection. The disclosure had nothing at all to say about the conduct of the hospital.
The defendants all moved to preclude the proposed expert testimony and to preclude the plaintiff from disclosing any additional experts in light of the various scheduling orders (##152, 153, 163). On the day of oral argument on the motion to preclude, October 25, 2005, the plaintiff requested permission to file an amended complaint, which alleged as additional grounds of negligence the failure to accomplish the spinal fusion with instrumentation. Everyone agreed that it made sense to resolve the question of the amended complaint before addressing the motions to preclude. If the amended complaint became operative, then there would be no question but that the disclosed opinions would be relevant to issues formed by the pleadings. Oral argument was held on November 29, 2005, and on December 2, 2005, I issued a decision sustaining the objection to the request to amend, on the ground that the new allegations did not relate back to the prior complaint. See "Rulings," #173. The statute of repose, of course, has long expired. The issue now presented is whether any of the opinions disclosed could be relevant to the issues raised in the complaint and whether any such opinions are adequately disclosed.
First, and almost parenthetically, the motion filed by the defendant Lawrence and Memorial Hospital is granted. Nothing in the disclosure has anything to do with the hospital, and no request has been made to extend the period of time in which to disclose opinions. It is unlikely that I would grant such a request were it to be made. This ruling is not by agreement, but there has not been a serious objection to the granting of the motion.
The issue as to the doctors is more troublesome. As noted above, the disclosure of Dr. Davne's opinions is mostly devoted to the failure to use "instrumentation" in the performance of the spinal fusion. Every sentence but one includes the word "instrumentation" or "instruments" and there is nothing in the complaint mentioning instruments nor anything from which instrumentation could logically be inferred. The exception is a sentence in the middle of the disclosure which reads, "He will further testify that the doctors failed to adequately monitor Ms. Dimmock's ongoing back condition post surgery and make the necessary recommendations for additional care and treatment, including additional attempts at surgical repair." When I asked at oral argument what that sentence meant that is, what should have been done differently and in what way would the outcome be different, there was no specific response.
Meanwhile, the operative complaint is concerned with infection. There are approximately seventeen allegations of what the doctors did wrong and almost all of those specifically refer to infection in various ways, from training about and evaluation of infection, to not...
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