Filippelli v. Saint Mary's Hosp.

• Citation: 61 A.3d 1198,141 Conn.App. 594
• Decision Date: 02 April 2013
• Docket Number: No. 33557.,33557.
• Parties: Philip FILIPPELLI III et al. v. SAINT MARY'S HOSPITAL et al.
• Court: Appellate Court of Connecticut

141 Conn.App. 594

61 A.3d 1198

Philip FILIPPELLI III et al.

v.SAINT MARY'S HOSPITAL et al.

No. 33557.

Appellate Court of Connecticut.

Argued Oct. 10, 2012.

Decided April 2, 2013.

Stephanie Z. Roberge, New Haven, for the appellant (named plaintiff).

Ellen M. Costello, New Haven, for the appellee (defendant Waterbury Orthopaedic Associates, P.C., et al.).

LAVINE, ESPINOSA and BORDEN, Js.^*

LAVINE, J.

In this medical malpractice action, the plaintiff Philip Filippelli III ¹ appeals from the judgment of the trial court, rendered after a jury verdict, in favor of the defendants, Dennis M. Rodin, an orthopedic surgeon,and Waterbury Orthopaedic Associates, P.C. ² On appeal, the plaintiff claims that the court abused its discretion with regard to its evidentiary rules concerning (1) a certain article from a medical journal (journal article) and (2) the deposition testimony of the defendants' expert witness. We affirm the judgment of the trial court.

The following procedural history and facts, as the jury reasonably could have found them, are relevant to this appeal. The plaintiff, then thirty-eight years old, was playing basketball on March 4, 2005, when he sustained a comminuted tibial plateau fracture.³ He was taken by ambulance to the emergency department of St. Mary's Hospital (emergency department) at approximately 10 p.m., treated and released with instructions to consult an orthopedic surgeon. The plaintiff returned to the emergency department at approximately 7:30 a.m. the next morning, March 5, 2005, complaining of severe pain in his left lower extremity. Brian J. McMahon, a physician, examined the plaintiff and then consulted Rodin. According to the medical record that McMahon created, Rodin “came in quickly, felt that the examination was somewhat equivocal and elected to admit the [plaintiff] for observation.”

Following his examination of the plaintiff, Rodin documented his impression of the plaintiff's condition as “[l]eft tibial plateau fracture with question of compartment syndrome.” ⁴ He also wrote: “[t]his may very well be an impending compartment syndrome and we will closely monitor this every two hours for neurovascular check.” At 6:45 p.m. that day, Rodin examined the plaintiff again, took compartment pressures and found them to be elevated. Rodin diagnosed the plaintiff with compartment syndrome and immediately performed a four compartment fasciectomy⁵ of the plaintiff's lower left extremity.

The plaintiff subsequently commenced this action against the defendants, alleging that Rodin was careless and negligent in his treatment of him by failing timely to diagnose compartment syndrome and perform a fasciectomy, among other things. The plaintiff further alleged that, as a result of Rodin's carelessness and negligence, he has sustained, among others things, postsurgical complications, permanent nerve and muscle damage, and additional surgeries.⁶ The defendants denied the alleged negligence. Their theory of defense was that the plaintiff's alleged injuries were a consequence of his tibial plateau fracture and the need for a four compartment fasciectomy. The action was tried to a jury in May, 2011.

At trial, the jury heard testimony as to the standard of care applicable to a board certified orthopedic surgeon when diagnosing compartment syndrome from Rodin, Andrew Bazos, the defendants' expert witness, and Ronald M. Krasnick, the plaintiff's expert witness.⁷ Bazos testified that Rodin's diagnosis of the plaintiff's compartment syndrome was timely and did not deviate from the standard of care.⁸ Rodin and Bazos testified that an orthopedic surgeon would not subject a patient to a fasciectomy unless it was mandatory due to the high risk of infection and other sequelae, including additional surgery to close the wounds, skin grafting and scarring associated with such surgery.

Krasnick agreed with the identified risks associated with a fasciectomy. He testified, however, that the plaintiff had compartment syndrome on the morning of March 5, 2005, when he returned to the emergency department and that Rodin deviated from the standard of care by failing to diagnose compartment syndromeat that time.⁹ The jury found that Rodin did not breach the standard of care ¹⁰ and returned a verdict in the defendants' favor.¹¹ Additional facts will be addressed as needed.

On appeal, the plaintiff states that the primary issue “in this case was whether the plaintiff had compartment syndrome when he returned to the emergency department at approximately 7:30 a.m. [on March 5, 2005] and required fasciectomy at that time or whether he did not have compartment syndrome until 6:00 p.m. and surgery was therefore timely performed.” He claims that the court abused its discretion by precluding him from using an article from a medical journal and deposition testimony to impeach the credibility of Rodin and Bazos. The plaintiff also claims that he is entitled to a new trial because the court's evidentiary rulings were harmful. We disagree.

We begin with the standard of review applicable to claims of evidentiary error. “The trial court's ruling on evidentiary matters will be overturned only upon a showing of a clear abuse of the court's discretion.... We will make every reasonable presumption in favor of upholding the trial court's ruling, and only upset it for a manifest abuse of discretion.... [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.... Even when a trial court's evidentiary ruling is deemed to be improper, we must determine whether that ruling was so harmful as to require a new trial.” (Internal quotation marks omitted.) Hurley v. Heart Physicians, P.C., 298 Conn. 371, 401–402, 3 A.3d 892 (2010).

“[B]efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful.... In other words, an evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful.... Moreover, an evidentiary impropriety in a civil case is harmless only if we have a fair assurance that it did not affect the jury's verdict.... A determination of harm requires us to evaluate the effect of the evidentiary impropriety in the context of the totality of the evidence adduced at trial.” (Citation omitted; internal quotation marks omitted.) Klein v. Norwalk Hospital, 299 Conn. 241, 254–55, 9 A.3d 364 (2010).

I

The plaintiff's first set of claims centers on the court's evidentiary rulings with regard to the journal article. The plaintiff claims that the court misapplied the learned treatise doctrine by precluding him from using it (1) to impeach Rodin and Bazos and (2) to confirm Krasnick's testimony. The plaintiff claims that his inability to use the journal article prevented him from presenting evidence of the character, credibility and conduct of defense witnesses. Reviewing the plaintiff's claims that the trial court improperly excluded evidence by an abuse of discretion standard; see Hurley v. Heart Physicians, P.C., supra, 298 Conn. at 401–402, 3 A.3d 892; we reject them.

The following facts are relevant to our resolution of the plaintiff's claims. Counsel for the plaintiff deposed Rodin in March, 2009. At that time, Rodin testified that, in preparation for the deposition, he had reviewed an article in the Journal of the American Academy of Orthopaedic Surgeons, but that he had not brought the journal article to the deposition. Later, the plaintiff's counsel undertook a literature search and found an article published in the subject journal that she believed to be the one Rodin reviewed. On May 6, 2011, as trial was about to begin, the plaintiff filed a supplemental list of exhibits that included, among other things, “3. J Am Academy Orthopaedic Surg, Vol. 13, No. 7, November 2005, Acute Compartment Syndrome and Lower Extremity Musculoskeletal Trauma.”

The defendants filed an objection to the plaintiff's supplemental list of exhibits, including the journal article. The defendants claimed prejudice due to the plaintiff's late disclosure of the journal article and sought to preclude its use at trial. The defendants stated in their objection to the supplemental disclosure that, at the time they took Krasnick's deposition, they asked him “if there was any literature upon which he relied to support his opinions or any literature he intended to bring to trial. He indicated that there was none.” The defendants cited Kaplan v. Mashkin Freight Lines, Inc., 146 Conn. 327, 150 A.2d 602 (1959), in support of their objection.

On May 10, 2011, the court held a hearing regarding the defendants' objection to putting the journal article into evidence at trial. The plaintiff's counsel argued that Rodin had referred to the journal article during his deposition and that she intended to use the journal article to confirm Kransnick's opinion that Rodin's care and treatment of the plaintiff had deviated from the standard of care. The defendants presented argument consistent with their objection to the plaintiff's supplemental disclosure. They also contended that Rodin had referred in general to a journal article, not to a specific journal article, and that the plaintiff had failed to demonstrate that the article found by the plaintiff's counsel was, in fact, the one Rodin had reviewed. Moreover, Rodin was a fact witness, not an expert witness, and no expert had testified that the journal article was a standard authority in accordance with § 8–3 of the Connecticut Code of Evidence. The court sustained the defendants' objection to the use of the journal article with respect to Krasnick. The court, however, conditionally overruled the defendants' objection with respect to Rodin.¹²

The plaintiff's claims are governed by the learned treatise exception to the hearsay rule, about which there is much confusion in the record and briefs....