Gemme v. Goldberg
| Decision Date | 01 June 1993 |
| Docket Number | Nos. 11334,11335,s. 11334 |
| Citation | 626 A.2d 318,31 Conn.App. 527 |
| Court | Connecticut Court of Appeals |
| Parties | Karen L. GEMME v Morton H. GOLDBERG et al. |
Karen P. Blado, with whom were Medina K. Jett, Hartford, and, on the brief, Jan C. Trendowski, Cromwell, and Frank J. Mastrandrea, Hartford, for appellant (named defendant).
Philip Vernon Chabot, Hamden, for appellant (defendant Morton H. Goldberg).
R. Bartley Halloran, Hartford, for appellee (plaintiff).
Before DUPONT, C.J., and DALY and HEIMAN, JJ. HEIMAN, Judge.
The defendants each appeal from a judgment rendered on a verdict against the defendant Herbert G. Schreiber awarding the plaintiff $50,000 and against the defendant Morton H. Goldberg awarding the plaintiff $200,000, reduced by 25 percent on account of the plaintiff's own negligence, for a net verdict against Goldberg of $150,000. The action is claimed to have had its genesis in the failure of both defendants to obtain the plaintiff's informed consent to treatments rendered to her by each of them individually.
The defendant Schreiber claims that the trial court improperly (1) permitted the plaintiff to amend her complaint to add a new claim against him during trial, (2) denied his request to amend his answer and special defense based on the new claim raised by the plaintiff in her amended complaint, (3) found that there was sufficient evidence produced demonstrating that (a) feasible alternative forms of treatment existed, (b) Schreiber had a duty to advise the plaintiff of their existence, (c) he breached that duty, and (d) his breach of that duty was the proximate cause of the plaintiff's injuries, (4) permitted the plaintiff to ask questions implicating the standard of care as to Schreiber, (5) instructed the jury in its supplemental charge regarding the necessity of expert testimony for a verdict against Schreiber, and (6) denied his motions for summary judgment, for a directed verdict, to set aside the verdict or for judgment notwithstanding the verdict. We need discuss only claims (3) and (4).
The defendant Goldberg claims that the trial court incorrectly (1) denied his request to mark the original and amended complaints as full exhibits, (2) denied his motion for directed verdict when there was a failure by the plaintiff to produce evidence of the standard of practice of obtaining informed consent or that he had breached the standard, (3) denied his motion for a directed verdict when the plaintiff failed to establish by expert testimony the existence of a causal relationship between the aspect of surgery about which no alternative was allegedly discussed and the subsequent outcome of treatment, and (4) responded to a question from the jury concerning the need for expert testimony.
We reverse the judgment of the trial court insofar as it relates to Schreiber and affirm the judgment against Goldberg.
The jury could reasonably have found the following facts. In November, 1983, the plaintiff consulted the defendant, Schreiber, an orthodontist, because of the protrusion of her front teeth. She hoped to correct her overbite. Schreiber had previously treated the plaintiff's sister's teeth orthodontically. Prior to her consultation with Schreiber, the plaintiff had experienced no dental problems that required treatment other than treatment by her family dentist for cavities. She had not undergone any periodontal care, root canal therapy or teeth extractions.
On her first visit with Schreiber, the plaintiff had X rays taken and a mold of her mouth made. On the basis of her consultation with Schreiber, the plaintiff understood that her problem could be corrected orthodontically with the application of braces and that the treatment would require that she wear braces for about two years. Schreiber did not discuss oral surgery with the plaintiff on her first visit. The plaintiff knew that her sister had not required any oral surgery while she was treated by Schreiber.
In January, 1984, at the advice of Schreiber, the plaintiff had her first upper two bicuspids extracted. After a healing period, Schreiber applied braces to her teeth. After the teeth were extracted, Schreiber for the first time indicated to the plaintiff that surgery might be required. He advised her that because her jaw was out of alignment, he might not be able to correct her overbite by the application of braces alone. He explained that, if such surgery were needed, it would require that her jaws be broken and then wired shut for a period of six to eight weeks.
In November, 1984, Schreiber concluded that surgery was necessary in order to close the space created by the extractions and to correct the overbite. He discussed no alternative treatment plan with the plaintiff, but told her merely that she required surgery. He also explained in general terms that there is always a risk that surgery would not go well and that you would not get the result wanted. Schreiber did not, however, explain with specificity other problems that might arise. He normally leaves that explanation to the surgeon since it is not in Schreiber's field of expertise to be specific as to those problems. He referred her for a surgical consultation with the defendant Goldberg.
The plaintiff consulted with Goldberg on November 28, 1984. Goldberg noted that her deformity was obvious to him and that two teeth had been extracted. He advised her that he could not give her a definitive treatment plan until he had studied her plaster models and X rays. On that same day, he called Schreiber and his office note indicated that he discussed with Schreiber that he was thinking in terms of treatment options that included maxillary surgery, closing off the spaces surgically, and the need to push the mandible. His notes did not reflect that he discussed with the plaintiff nonsurgical options at the time of the first consultation although his practice would have been to talk with the patient as he examined her and tell her that the fact that the two teeth had been extracted opened up some options as to how to proceed.
Goldberg next saw the plaintiff on January 23, 1985. At that time, he showed the plaintiff the molds of her teeth. He displayed the molds and used them to demonstrate where her jaw would be moved back, that the upper and lower jaws would be broken, that the two spaces where the teeth had been extracted would be cut and brought together and pulled in. He also explained that her jaws would be wired shut for six to eight weeks. When discussing the risks attendant upon the surgery, he stated that he had done hundreds of these operations and that the worst things that had happened were that one person required a postoperative root canal and that another had lost a tooth. Goldberg did not discuss with the plaintiff any alternate methods of closing the spaces. On the basis of her discussion with Goldberg, Gemme consented to undergo the surgical treatment outlined by Goldberg.
The plaintiff was admitted to Hartford Hospital on January 31, 1985. On the following day, Goldberg performed surgery, a LeFort I three part maxillae with impaction and closure of the bicuspid spaces and a bilateral sagittal split of the mandible, on the plaintiff.
The plaintiff was discharged from the hospital on February 4, 1985, to be seen in follow-up care in Goldberg's office on February 6. The discharge summary from the hospital indicated that she had no fever, the swelling of her face had decreased, she was still experiencing moderate discomfort and the operative areas were clean and dry.
On February 6, 1985, the plaintiff was seen in Goldberg's office. On that date, she still had very ecchymotic cheeks and gingiva with moderate discomfort. There was also a question concerning the condition of the upper right second bicuspid root. She was given a prescription for demerol liquid and instructed to return in a week. The ecchymosis (black and blue) noted was in both the upper and lower gums, cheeks, chin and upper neck.
The plaintiff returned to see Goldberg on February 13, 1985. On that visit, he noted that the gum that would ordinarily cover the anterior segment was gone. The bone was also exposed indicative of a postoperative complication of a compromise of the blood supply to that portion of the bone.
Goldberg continued to treat the plaintiff until April 23, 1987, when she terminated the relationship. The last time that Goldberg examined the plaintiff was on December 11, 1986. At that time, he noted horizontal bone loss in the front portion of the jaw.
Subsequently, the plaintiff was required to have a number of her upper teeth subjected to root canal process and ultimately extracted. She also required additional treatment of her gums and surgery. 1
THE DEFENDANT SCHREIBER'S CLAIMS
(11335)
Schreiber asserts that the plaintiff was precluded from offering expert testimony against him by reason of the trial court's granting of his motion in limine invoking the provisions of Practice Book § 220(D). We agree. Without such testimony, there was insufficient evidence to hold the defendant Schreiber liable for any harm to the plaintiff. We hold that the plaintiff was precluded from offering any expert testimony as to the standard of care, causation, and the duty owed as to the treatment by Schreiber. The testimony of Schreiber and Goldberg on these subjects was expert testimony that was precluded by the motion in limine. Consequently, the plaintiff did not sustain her burden of proof against the defendant Schreiber and he was entitled to a directed verdict.
An understanding of the following additional facts is necessary for a resolution of this claim. On February 14, 1992, counsel for Schreiber presented a motion in limine seeking to preclude the plaintiff from presenting the testimony of any expert witnesses as to issues relating to the standard of care, causation, or duty as to the treatment rendered by Schreiber to the plain- pursuant to ...
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