Kiniry v. Danbury Hospital

• Decision Date: 14 April 1981
• Citation: Kiniry v. Danbury Hospital, 439 A.2d 408, 183 Conn. 448 (Conn. 1981)
• Court: Connecticut Supreme Court
• Parties: Mary S. KINIRY, Executrix (Estate of Richard J. Kiniry) v. DANBURY HOSPITAL et al.

Page 408

439 A.2d 408

183 Conn. 448

Mary S. KINIRY, Executrix (Estate of Richard J. Kiniry) v. DANBURY HOSPITAL et al.

Supreme Court of Connecticut.

Argued Jan. 14, 1981.

Decided April 14, 1981.

Arnold J. Bai, Bridgeport, with whom were Karen L. Karpie and, on brief, Leland S. Englebardt, Bridgeport, for appellants (defendants).

Michael P. Koskoff, Bridgeport, with whom was Brenda C. Morrissey, Bridgeport, for appellee (plaintiff).

Before BOGDANSKI, PETERS, HEALEY, ARMENTANO and WRIGHT, JJ. PETERS, Associate Justice.

This is a medical malpractice case arising out of the death of a patient at the Danbury Hospital. The plaintiff, Mary S. Kiniry, executrix of the estate of Richard J. Kiniry, brought a wrongful death action alleging medical malpractice against three defendants, the Danbury Hospital, Homer L. Fegley, M.D., and Thomas M. Malloy, M.D. Before trial, a settlement was reached with Malloy, and the case against him was withdrawn. The jury returned a plaintiff's verdict against both of the remaining defendants. In post-trial motions, the defendants asked the trial court to set the verdict aside, to arrest the judgment to order a remittitur, and to reduce the verdict of $1,800,000 by $250,000, which was the amount of the Malloy settlement. The court granted only the last of these motions, and the defendants have appealed from the judgment rendered against them.

In their appeal, the defendants claim that the trial court erred in its charge to the jury and in its refusal to set aside the verdict as to damages. Evidentiary questions noticed in the preliminary statement of issues have not been briefed and are therefore deemed to have been abandoned. Czarnecki v. Plastics Liquidating Co., 179 Conn. 261, ---, 425 A.2d 1289 (1979); Manley v. Pfeiffer, 176 Conn. 540, 541, 409 A.2d 1009 (1979); Maltbie, Conn.App.Proc. § 327.

There was evidence before the jury from which they could have found the following facts. Richard Kiniry, then thirty years old, fell down some basement stairs at his home in Danbury on November 23, 1974, at about 9 p. m. He struck his head and was unconscious for more than eight minutes. His wife called for emergency assistance and two emergency medical technicians responded promptly. They helped him up the stairs and took him in an ambulance to the Danbury Hospital. They observed that he was confused and disoriented, and that he lapsed into semiconsciousness; they applied a splint to a wrist that appeared deformed. Kiniry arrived at the Danbury Hospital's emergency room at approximately 9:42 p. m.

Upon arrival at the emergency room, Kiniry as examined by Homer L. Fegley, a full-time hospital emergency room physician in the employ of the Danbury Hospital. Fegley obtained a history from Kiniry, his wife, and the emergency technicians; he learned that Kiniry had been unconscious and had a nose bleed. A neurological examination conducted by Fegley showed normal reflexes but pupils that were small and failed to respond to light. Fegley noted the wrist deformity and ordered x-rays of the skull and wrist. While the patient was being x-rayed Fegley telephoned Thomas M. Malloy, who was the "on call" orthopedic surgeon that evening, and Malloy agreed to come in to see the patient. Fegley did not call Jesse Manlapaz, the neurosurgeon on call that night.

Kiniry was returned from the x-ray department to the orthopedic room to await Malloy's arrival. In the meantime, he continued to show signs of mental confusion and complained of a severe headache; he also became nauseated and vomited. The x-rays, which had been taken at approximately 10 p. m., were read by a hospital radiologist. The radiologist reported to Fegley, between 10:30 p. m. and 10:45 p. m., that the skull x-ray revealed a fracture over the middle meningeal artery. Fegley discussed the report with Mrs. Kiniry, advised that her husband be hospitalized for observation, and told her that an orthopedic surgeon had been called to set the fractured wrist.

Malloy saw Kiniry in the orthopedic room at about 11:15 p. m. He examined the patient, set his wrist, ordered compazine for his nausea, and admitted him to the hospital's intensive care unit for observation relating to the head injury.

Kiniry remained in the intensive care unit on November 24, 1974, from approximately 12:45 a. m. until 3:15 a. m. when he was taken to surgery. Although the patient had previously been lethargic, after his arrival on the floor he became restless, agitated and combative. He was incoherent and delusional, and had to be restrained. The nursing staff in the intensive care unit checked the patient's vital signs upon his arrival on the floor, at 12:45 a. m., again at 1 a. m., and again at 2 a. m. By 2 a. m., the patient's condition had deteriorated markedly. There was first a difference in the size of his pupils and then his pupils became fixed and dilated. He moved one side of his body more freely than the other. Malloy was called at about 2:15 a. m., and he in turn then, for the first time, contacted the "on call" neurosurgeon, Manlapaz. Manlapaz found the patient in a deep coma when he arrived at 3:10 a. m.

Manlapaz performed surgery upon Kiniry in the early hours of November 24, 1974. He removed a large epidural hematoma on the right side of his brain which had resulted from the fracture of the temporal bone and resultant laceration of the middle meningeal artery. He also found and removed a small subdural hematoma on the left side of the brain. Kiniry never regained consciousness after the surgery and died on November 30, 1974.

The plaintiff presented expert testimony that the defendant Danbury Hospital had failed to comply with the standards of care applicable in 1974 to similar cases in Connecticut hospitals. The witnesses testified, and the jury could have found, that the Danbury Hospital departed from the applicable standard in two major respects in its treatment of Kiniry on November 24 and 25, 1974. The hospital failed to implement adequate rules to provide for immediate consultation of a neurosurgeon when a patient in Kiniry's condition arrived at the hospital. The hospital's nursing staff failed to monitor and record with sufficient frequency the condition of a patient such as Kiniry, and failed to call the attending physicians soon enough when a patient in Kiniry's condition began to deteriorate.

There was similar expert testimony about the defendant Fegley's departure from the standard of care applicable to emergency room physicians in Connecticut in 1974. That testimony indicated departure from established standards in Fegley's failure to call a neurosurgeon immediately upon learning of Kiniry's skull fracture, in his failure to perform an adequate neurological examination and to order adequate neurological nursing care, and in his referral of the patient to a specialist who was known, or should have been known, to be unqualified to treat head injuries.

The expert witnesses agreed that the departure from the established standards of care by each of the defendants was a substantial factor in causing the death of Kiniry. If the jury believed this testimony, and found the requisite underlying facts to have been established, they were entitled to find the defendants negligent. The jury returned a general verdict for the plaintiff against the defendants in the amount of $1,800,000. ¹

I

The defendants, on this appeal, do not contest the sufficiency of the evidence to support a finding that they were negligent. Although they do not concede their negligence, their principal argument focuses on the conduct of the orthopedist Malloy. They maintain that Kiniry died because of Malloy's failure to obtain a prompt neurosurgical consultation after he had agreed to see Kiniry as his patient. The defendants thus claim that their negligence, if any, was not the proximate cause of Kiniry's death and that Malloy's conduct constituted an intervening or superseding cause sufficient to break the causal connection between any negligence on their part and Kiniry's death. This argument was vigorously presented to the jury at the trial. The defendants' first claim of error is that the court erred in its instructions to the jury on causation, so that this defense argument was not accurately before the jury in their deliberations.

We will, in the interest of justice; Practice Book § 3164; review this claim of error although it is by no means clear that the defendants have properly presented it. In the trial court, after having taken exception to the charge as given, they failed to except to the court's corrected charge. This was not a case in which the trial court refused to correct its charge. If the defendants believed that the supplemental charge was still incorrect, they should have alerted the court to their continuing objection. See Practice Book § 315; Enlund v. Buske, 160 Conn. 327, 332, 278 A.2d 815 (1971); Terrazzano v. Sporna, 157 Conn. 39, 43, 244 A.2d 599 (1968). In this court, in claiming error, the defendants have failed to comply with the requirement that their brief "shall include a verbatim statement of all relevant portions of the charge and all relevant exceptions to the charge." Practice Book § 3060F(c) (2). Experienced counsel should recognize that the requirement of "a verbatim statement" calls for something more than references to pages of a transcript. The verbatim statement should have been included in the defendants' initial brief, rather than in the reply brief responding to the plaintiff's objection to the form in which the claim of error was raised.

We turn now to the merits of the claimed error in the charge concerning causation. The trial court instructed the jury that the conduct of the orthopedist Malloy might have discharged the defendant Fegley from liability in one of three ways. The jury were told that they might find that Malloy's conduct was an independent intervening cause, the sole proximate cause, or a...