Fitzmaurice v. Flynn
| Decision Date | 11 February 1975 |
| Parties | Patricia A. FITZMAURICE et al. v. Edward J. FLYNN. |
| Court | Connecticut Supreme Court |
A. Reynolds Gordon, Bridgeport, with whom, on the brief, was Arthur A. Hiller, Bridgeport, for appellant (named plaintiff).
Arnold J. Bai, Trumbull, with whom, on the brief, was Paul E. Pollock, Bridgeport, for appellee (defendant).
Before HOUSE, C.J., and LOISELLE, MacDONALD, BOGDANSKI and LONGO, JJ.
This appeal is from the judgment rendered upon a verdict for the defendant in a malpractice action. The defendant, Edward J. Flynn, is a physician licensed to practice in the state of Connecticut, specializing in obstetrics and gynecology in the Norwalk area. In April of 1969, the plaintiff Patricia A. Fitzmaurice was a patient of the defendant. The issue on appeal is limited to a question concerning the qualifications for an expert witness in malpractice cases, and thus a lengthy recitation of the facts involved is not necessary.
Those portions of the finding relative to the limited issue presented may be summarized as follows: On April 21, 1969, the plaintiff saw the defendant for a regular six-month checkup, at which time there appeared no evidence of a lump in the plaintiff's breast. On April 28, 1969, the plaintiff discovered a lump in her right breast and called the defendant. He examined the lump the following day and told the plaintiff he was sure the lump was nothing to worry about. He did not make an appointment for a reexamination of the lump, nor did he advise her to watch the lump. At her next secheduled checkup, in October, 1969, the plaintiff informed the defendant that the lump appeared larger and gave her discomfort. After examining the lump the defendant once again assured the plaintiff not to be concerned with it, and did not schedule a reexamination nor refer her for further testing. At the text regular checkup, on May 11, 1970, the lump was larger and the defendant referred the plaintiff to a surgeon who examined the lump and scheduled a biopsy. The biopsy was performed on May 20, 1970, the lump was found to be malignant, and a radical mastectomy was performed. The plaintiff subsequently brought an action against the defendant, charging malpractice in his diagnosis and alleging a failure to take proper and immediate steps to determine the true nature of the lump in the plaintiff's breast.
During the trial of the case to the jury the plaintiff called Ira S. Goldenberg, a physician, to testify as an expert as to the proper medical standards of practice among obsterician-gynecologists concerning breast examinations. The plaintiff clicited the following testimony from Goldenberg to establish his qualifications to testify as an expert in this situation: He is, and has been a New Haven practicing surgeon specializing in breast cancer surgery, a professor of clinical surgery at Yale-New Haven Hospital, a member of the breast cancer tast force of the National Cancer Institute, and the principal investigator of the Cooperative Breast Cancer Study Group. He teaches medical students and also other physicians, and lectures to Connecticut obstetricians and gynecologists on breast cancer problems. An important part of his practice consists of breast examinations on patients referred to him by obstetrician-gynecologists. Obstetrician-gynecologists do not do breast surgery in Connecticut and therefore they consult with surgeons on the disagnosis of breast lumps. His referrals come from all over Connecticut. The plaintiff's counsel then asked the following question: 'And from talking with obstetricians and gynecologists and from lecturing and from teaching and from the referrals that you get on breast lumps, can you tell us whether or not you are familiar with the proper medical standards of practice among obstetricians-gynecologists concerning breast examinations?'
Counsel for the defendant objected, and the plaintiff's counsel claimed the question on the basis that it was preliminary, that it went to the question of whether the witness knows the standard of practice in question, that a physician does not have to be in the same specialty to testify concerning standards as long as he knows the standards of the specialty involved, that the general neighborhood is Connecticut, and that a physician may testify concerning standards if he practices anywhere in Connecticut. The record does not reflect the court's ruling with regard to the previous question. 1 The plaintiff, however, then sought to ask the following questions: 'Doctor, the standard for obstetricians, not your personal standard, but the standard for obstetricians and gynecologists with regard to breast examination, is there one standard in the State of Connecticut?'
The defendant's counsel objected on the ground that this physician should not testify to the standards for obstetrician-gynecologists for breast examinations, anywhere, because it is out of his specialty. Out of the presence of the jury, by way of an offer of proof, the plaintiff further sought to examine Goldenberg as to the extent of his knowledge. The court, however, sustained the objection and an exception was noted.
In the absence of the jury, as part of the plaintiff's offer of proof, Goldenberg then testified that he deals with obstetrician-gynecologists almost daily concerning breast lumps, and that through his contacts with referring obstetrician-gynecologists he was familiar with their standards of practice regarding problems concerning breast lumps in New Haven and also in the rest of the state. Obstetrician-gynecologists seek consultations for further definition and specific therapy, including surgery when indicated. Both the referring obstrician-gynecologists and Goldenberg will examine the same lump, including lumps of the nature of the plaintiff's lump. They confer both before and after Goldenberg sees the patient. Goldenberg would hear the obstetrician-gynecologists' opinion and course of procedure. Goldenberg also had frequent telephone consultations with obstetrician-gynecologists without seeing the patient.
He further testified that he is considered qualified by the Yale-New Haven Hospital medical center to teach obstetrician-gynecologists concerning breast lumps even though he is a surgeon, and that he knows at least as much as they do about breast lumps. Further, Goldenberg testified that in June, 1972, he was speaking to the Yale-New Haven staff of obstetrician-gynecologists about the 'lumpy breast.'
Goldenberg specifically testified that with regard to breast lumps, he understood the distinction between his own standard of practice as a surgeon and the standard of obstetrician-gynecologists. He was able to testify as to what the obstetrician-gynecologists' standards were without imposing his own, and that he was as familiar with what their procedures were as another obstetrician-gynecologist would be.
Goldenberg further testified that he was familiar with the standard of practice of obstetrician-gynecologists regarding breast lumps in the communities served by Norwalk Hospital, i.e., Norwalk, Wilton, Westport, Darien, New Canaan, and also in New Haven, New London, Hartford, New Britain, Waterbury, Stamford, Litchfield, Torrington, Danbury, Bridgeport, Milford, Stratford, Branford and the majority of communities in Connecticut, and that there is no difference in the standards of obstetrician-gynecologists from one town to another; the standards are the same throughout Connecticut. With regard to diagnosis in the field of breast lumps, there is an overlap and close relationship between obstetrician-gynecologists and cancer surgery, according to Goldenberg. Similarly, regarding what goes on in the examining room and diagnosis, and short of actual surgery, there also is an overlap and close...
To continue reading
Request your trial
-
Gaston v. Hunter
...and not the artificial classification by title that should govern the threshold question of admissibility." Fitzmaurice v. Flynn, 167 Conn. 609, 618, 356 A.2d 887, 892 (1975). Accord Cline v. Lund, 31 Cal.App.3d 755, 107 Cal.Rptr. 629 (1973); Radman v. Harold, 279 Md. 167, 367 A.2d 472 (197......
-
Katsetos v. Nolan
...express an opinion that the treatment accorded the patient failed to meet this standard.' Snyder v. Pantaleo, supra.' Fitzmaurice v. Flynn, 167 Conn. 609, 616, 356 A.2d 887. The defendants argue that the four witnesses called by the plaintiff were not qualified to testify as experts with re......
-
Logan v. Greenwich Hosp. Ass'n
...adopted." Id. We reaffirmed the view that "the general neighborhood is the entire state of Connecticut" in Fitzmaurice v. Flynn, 167 Conn. 609, 617, 356 A.2d 887 (1975). There we recognized that "there may exist reason to disregard territorial limitations even with regard to state boundarie......
-
Grayson v. Wofsey, Rosen, Kweskin and Kuriansky
...to understand the applicable standard of care and to evaluate the defendant's actions in light of that standard. Fitzmaurice v. Flynn, 167 Conn. 609, 617, 356 A.2d 887 (1975); Decho v. Shutkin, 144 Conn. 102, 106, 127 A.2d 618 (1956); Bent v. Green, [39 Conn.Supp. 416, 420, 466 A.2d 322 (19......
-
American diagnostic radiology moves offshore: is this field riding the "Internet wave" into a regulatory abyss?
...(230) DiFranco v. Klein, 657 A.2d 145, 148 (R.I. 1995) (quoting Wilkinson v. Vesey, 295 A.2d 676 (R.I. 1972)). (231) Fitzmaurice v. Flynn, 356 A.2d 887, 891 (Conn. 1975) (quoting Snyder v. Pantaleo, 122 A.2d 21 (Conn. (232) Sheeley v. Memorial Hosp., 710 A.2d 161, 165 (R.I. 1998). (233) Id.......