Farrell v. Bass

• Decision Date: 23 August 2005
• Docket Number: (AC 25314).
• Citation: 90 Conn. App. 804,879 A.2d 516
• Court: Connecticut Court of Appeals
• Parties: NANCY B. FARRELL, EXECUTRIX (ESTATES OF MARY D. BLAKELY AND WALTER BLAKELY) ET AL. v. DAVID M. BASS ET AL.

90 Conn. App. 804

879 A.2d 516

NANCY B. FARRELL, EXECUTRIX (ESTATES OF MARY D. BLAKELY AND WALTER BLAKELY) ET AL. v. DAVID M. BASS ET AL.

(AC 25314).

Appellate Court of Connecticut.

Argued April 20, 2005.

Officially released August 23, 2005.

DiPentima, Gruendel and Dupont, Js.

Gary J. Strickland, for the appellants (plaintiffs).

Frank H. Santoro, with whom were Andrew S. Wildstein and Joyce A. Lagnese, for the appellees (defendants).

Opinion

DUPONT, J.

In this medical malpractice action, the plaintiffs, Nancy B. Farrell and Cynthia B. Grocki,¹ appeal from the judgment of the trial court, rendered after a jury trial, in favor of the defendants, David M. Bass, a plastic surgeon, and his medical practice, David M. Bass, M.D., P.C. The verdict was based on a single interrogatory and its answer by the jury, namely, that Bass had not deviated from the standard of care for plastic surgeons in similar circumstances.²

The issues in this appeal relate to the court's rulings on the relevance of the evidence of two physicians offered by the plaintiffs to prove a deviation by Bass from the applicable standard of care. The questions for our review are whether the court abused its discretion by (1) failing to permit expert testimony on the relevant standard of care from two of the plaintiffs' expert witnesses who were not health care providers practicing in the same medical specialty as Bass and (2) prohibiting questions by the plaintiffs during the cross-examination of the defendants' expert witness and the direct examination of the plaintiffs' third expert witness on the substance of certain medical literature. We affirm the judgment of the trial court.

I FACTUAL AND PROCEDURAL BACKGROUND

The first question requires a review of the allegations of the plaintiffs' complaint, an interpretation of General Statutes § 52-184c (c) and (d), and a review of the plaintiffs' offer of proof as to the testimony of two of their three medical experts on the applicable standard of care. We also must review the testimony of the plaintiffs' third expert witness, who was allowed to testify on the standard of care governing Bass' treatment of the plaintiffs' decedent, Mary D. Blakely.

In their complaint, the plaintiffs alleged that Bass deviated from the applicable standard of care by (1) failing to contact Blakely's internist or cardiologist prior to ordering a change or interruption in her anticoagulant medication regime, (2) erroneously directing Blakely to interrupt her anticoagulation medication regime, (3) failing to explain alternative methods of changing anticoagulants, and (4) failing to explain the risks and benefits of proceeding with the incisional biopsy performed by Bass without interruption of that medication regime. The plaintiffs alleged that as a result of those deviations from the applicable standard of care, Blakely suffered a debilitating embolic stroke three days after the surgery, which diminished her ability to pursue and to enjoy her activities and which was a substantial factor in her death. There is no dispute that the anticoagulant was Coumadin and that Bass thought its use should be suspended prior to the performance of the incisional biopsy.

The defendants filed a motion in limine to preclude the plaintiffs from offering the testimony of two expert witnesses, physicians Stanley Bernstein and John Miller, as to the standard of care applicable to Bass because Bernstein and Miller were not "similar health care providers" as required by § 52-184c (c)³ and because they did not possess the training that would allow their testimony under § 52-184c (d).⁴ The plaintiffs disclosed them, along with James Shearer, a board certified plastic surgeon, as expert witnesses who would testify as to the applicable standard of care.⁵ The motion alleged that Bernstein was a board certified internist and cardiologist and that Miller was a board certified cardiologist and electrophysiologist. Bernstein testified on January 9, 2004, Shearer testified on January 13, 2004, and Miller testified on January 14, 2004.

The defendants' motion also stated that Bass had recommended that Blakely discontinue taking Coumadin, a blood thinner, for two days prior to the surgery and to resume it the evening of the surgery.⁶ Bass instructed Blakely to notify her primary care physician about the recommendation. In the motion, the defendants argued that the question presented was "whether a plastic surgeon who is to perform a facial biopsy is required to personally contact a patient's primary care physician to discuss his recommendation to discontinue blood thinning medication or whether it is within the standard of care to instruct the patient to initiate the communication with the primary care physician." The plaintiffs argued, however, that the question was whether the standard of care for any defendant health care provider, regardless of specialty, requires personal, direct communication with the physician who prescribed the medication.

The defendants' motion noted that Miller, during his deposition, testified that he had no personal familiarity with what the usual and customary practice was in April, 1999, among plastic surgeons regarding communicating with a patient's primary care physician with respect to discontinuing Coumadin prior to performing facial plastic surgery. Bernstein, during the plaintiffs' offer of proof, testified to the same thing.

During their offer of proof at the hearing on the defendants' motion in limine, the plaintiffs argued that the standard of care applicable to Bass in this case applies to all physicians, regardless of specialty, when interrupting or discontinuing another physician's medication regime currently being followed by a patient. In the alternative, the plaintiffs argued that Bass provided "treatment or diagnosis for a condition which is not within his specialty" within the purview of § 52-184c (c) and, therefore, Bernstein and Miller should be considered "similar health care providers." Specifically, the plaintiffs argued that Bass practiced outside his specialty by recommending or ordering Blakely to discontinue Coumadin because its use is within the specialty of cardiology, or within the purview of an internist and, therefore, that Bass should be treated as though he were a cardiologist or an internist for the purpose of allowing the testimony of Miller and Bernstein. The plaintiffs thus argued that this case provides an exception to the usual rule that "[t]he prevailing professional standard of care for a given health care provider shall be that . . . recognized as acceptable and appropriate by reasonably prudent similar health care providers." General Statutes § 52-184c (a). The court granted the defendants' motion in limine, and precluded Miller and Bernstein from testifying as to the standard of care that Bass should have exercised.

At the conclusion of the trial, the jury found that Bass did not deviate from the standard of care for plastic surgeons in similar circumstances and returned a verdict in the defendants' favor, which the court accepted. On February 4, 2004, the plaintiffs filed a motion to set aside the verdict, which the court denied on March 18, 2004. This appeal followed. Additional facts will be set forth as necessary.

II MOTION IN LIMINE

The plaintiffs argue that the court improperly precluded Miller and Bernstein from testifying that Coumadin should not have been discontinued under the circumstances of this case. The defendants argue that neither Bernstein nor Miller are plastic surgeons and that their proposed testimony did not fit within any exception to § 52-184c.⁷

We begin with the applicable standard of review. The court's preclusion of testimony by a properly disclosed expert witness is an evidentiary ruling. See Young v. Rutkin, 79 Conn. App. 355, 359, 830 A.2d 340, cert. denied, 266 Conn. 920, 835 A.2d 60 (2003). That decision will not be disturbed unless the court abused its discretion or unless the error is clear and involves a misconception of the law. Going v. Pagani, 172 Conn. 29, 35, 372 A.2d 516 (1976). An abuse of discretion means a ruling made on untenable grounds. Whalen v. Ives, 37 Conn. App. 7, 21, 654 A.2d 798, cert. denied, 233 Conn. 905, 657 A.2d 645 (1995). "It is well settled that the trial court's evidentiary rulings are entitled to great deference. . . . The trial court is given broad latitude in ruling on the admissibility of evidence, and we will not disturb such a ruling unless it is shown that the ruling amounted to an abuse of discretion." (Citation omitted.) Pestey v. Cushman, 259 Conn. 345, 368-69, 788 A.2d 496 (2002). "[Thus, our] review of such rulings is limited to the questions of whether the trial court correctly applied the law and reasonably could have reached the conclusion that it did." (Internal quotation marks omitted.) Wasko v. Manella, 87 Conn. App. 390, 394, 865 A.2d 1223 (2005). The test for admissibility of the opinion of an expert witness is whether the expert knows the applicable standard of care and can evaluate the defendant's conduct, given that standard. See Going v. Pagani, supra, 35. Although the admissibility of evidence is discretionary, a trial court's construction of a statute relating to admissibility of evidence is a question of law over which our review is plenary. Friedman v. Meriden Orthopaedic Group, P.C., 77 Conn. App. 307, 314, 823 A.2d 364 (2003), aff'd, 272 Conn. 57, 861 A.2d 500 (2004). Even if a court has acted improperly in connection with the introduction of evidence, reversal of a judgment is not necessarily mandated because there must not only be an evidentiary error, there also must be harm. Rokus v. Bridgeport, 191 Conn. 62, 70, 463 A.2d 252 (1983).

Certain principles are relevant in discussing whether the court abused its discretion by failing to permit the plaintiffs' proffered testimony of two of their expert witnesses. "[T]o prevail in a medical malpractice action, the plaintiff...