Kissel v. Center for Women’s Health P.C.
| Decision Date | 03 January 2019 |
| Docket Number | FSTCV126013562S |
| Court | Connecticut Superior Court |
| Parties | Judith KISSEL v. CENTER FOR WOMEN’S HEALTH P.C. |
UNPUBLISHED OPINION
POVODATOR, J.T.R.
This action originally was commenced as a medical malpractice action, directed to the named defendant and a provider of acupuncture services at the named defendant’s facility, Dr Wang. Product liability claims were later asserted against the distributor of a device that had been used by Dr. Wang in the course of treatment— the distributor was brought into the proceeding initially by defendant Wang for indemnification and then the plaintiff amended her complaint to assert a product liability claim for her injuries. After a trial, the jury found for the plaintiff on both theories of liability.
The core events are not in dispute. It was suggested to the plaintiff that she undergo acupuncture treatments, and she went to Doctor Wang for such a treatment. Dr. Wang worked within the offices of the Center for Women’s Health, with an affiliation that was initially in dispute. (The plaintiff had been a long-time patient at the Center.) For most of the life of the case, there was an issue as to whether the Center would acknowledge that Dr. Wang had been acting as an actual or apparent agent such that there would be respondeat superior liability. Prior to submission of the case to the jury, the Center acknowledged that it would be bound by any liability determination directed to Dr. Wang.[2]
In addition to inserting acupuncture needles, Dr. Wang placed a heat lamp in some proximity to the plaintiff’s foot. After having inserted all of the needles and having placed the lamp in what he deemed to have been an appropriate location/orientation, he left the room for approximately five minutes (his standard practice). He claims that he was within earshot of the treatment room in which the plaintiff was located— he claimed to have heard nothing prior to his return to the treatment room, whereas the plaintiff claims to have called out without any response. When Dr. Wang returned to the room several minutes later, the head of the heat lamp was resting against the plaintiff’s foot, having caused serious injuries to her foot. He removed the lamp from her foot, and he (and the principal of the Center) transported the plaintiff to a hospital for treatment.
One of the core issues in this case was the precise mechanism/manner in which the head of the lamp came into contact with the plaintiff’s foot. No one observed whether the head of the lamp had descended (there was a joint allowing the head to me moved up and down) or whether the entire lamp assembly had tipped over. The plaintiff was unaware of what had happened, and when Dr. Wang entered the room, he did not notice or observe whether the lamp assembly had tipped over or whether the arm supporting the lamp head had descended. There was extensive testimony concerning the propensity of the head to descend on its own or with some level of external force having been applied (other than force intended to raise or lower the lamp head)— sometimes informally referred to as jiggling and referred to by experts as excitation or perturbation. There was substantial testimony concerning the effect of bumping or shaking the vertical post to which the pivoting support for the head of the lamp was attached.
The action was commenced in April 2012. In December of that year, defendant Wang sought to implead the distributor of the heat lamp that caused the injury to the plaintiff giving rise to this proceeding. After the motion was granted, and a third party complaint served on the product distributor, the plaintiff amended her complaint so as to assert a direct claim against the product distributor, defendant Health Body World Supply Inc. (generally referred to as WABBO). Early in the trial, defendant Wang withdrew his complaint directed to defendant WABBO.
As submitted to the jury, then, the case involved a claim of medical malpractice (acupuncture) directed to defendants Wang and Center, and a claim of product liability directed to defendant WABBO. The jury awarded the plaintiff $ 1 million as to each of the claim/theories of liability presented. With respect to the medical malpractice claim, the jury determined that the plaintiff was not comparatively negligent. With respect to the product liability claim, the jury determined that the plaintiff was not comparatively responsible for her injuries, but pursuant to General Statutes § 52-572o , the jury determined that Dr. Wang, as a party to this action, had been 20% responsible. The plaintiff had not made any claim for economic damages, so the full award was for noneconomic damages.
There is no dispute that for purposes of the motions before the court (if at all), the plaintiff was injured as a result of her foot coming into contact with a heat lamp that had been placed in general proximity to her foot, by Dr. Wang, as part of his acupuncture treatment. (The nature of that proximity— the actual distance from the heat lamp to her foot— very much was in issue during the case.) The primary focus of the motions for directed verdict and for judgment notwithstanding the verdict was on causation, particularly with respect to the medical malpractice claim and the general requirement of expert testimony in that regard. (Defendant WABBO made similar arguments with respect to the product liability claim.) The medical defendants dispute that there was proof of a breach of the appropriate standard of care. There also are claims that the verdict was excessive.
There actually were two "waves" of motions. The first set of motions and objections were filed shortly after the verdict was accepted. After argument on the first set of motions and objections, there was a second round of filings. The court was asked to consider the then-recently issued decision in Kuehl v. Koskoff, 182 Conn.App. 505, 190 A.3d 82; cert. denied, 330 Conn. 919, 194 A.3d 289 (2018), as it pertained to experts and causation.
A more "unusual" post-verdict topic in the second set of filings were motions to reargue two motions to dismiss that had been denied almost 6 years prior to the filing of the motions to reargue (# 105.86, filed on September 6, 2012, denying # 105.00 and # 109.00). The motions to reargue relied upon the then-recently issued decision in Peters v. United Community and Family Services, Inc., 182 Conn.App. 688, 191 A.3d 195 (2018). The court heard further argument on the second set of motions on September 6, 2018.
1. Motions to Reargue
Although the motion to reargue relating to Peters (# 426.00)[3] was filed relatively late in the post-verdict motion process (June 26, 2018), the court believes that it should be addressed at the outset. If the medical malpractice component of this proceeding should be (should have been) dismissed, even at this late juncture, then potentially there would be no need to address the merits of the other post-verdict motions filed by the medical malpractice defendants.[4] Indeed, although generally framed in terms of subject matter jurisdiction (and the motions in question related to aspects of personal jurisdiction/process), the general rule is that when jurisdictional challenges are raised, they must be addressed first, prior to proceeding with other aspects of the dispute between the affected parties. Honan v. Dimyan, 85 Conn.App. 66, 69, 856 A.2d 463 (2004). In Baldwin Piano & Organ Co. v. Blake, 186 Conn. 295, 297-98, 441 A.2d 183, 184 (1982), the principle appears to have been applied in the context of claimed personal jurisdictional defects (a concern discussed in a dissenting opinion).
The record reflects that in 2012, both of the medical malpractice defendants filed motions to dismiss, predicated on the absence of an opinion letter from a similar healthcare provider being attached to the complaint as served and filed, as required by General Statutes § 52-190a. In resisting the motions, the plaintiff had moved to amend so as to submit a letter claimed to have been in possession of counsel when the suit was commenced but which inadvertently had been omitted. In addition to the letter itself, there was an affidavit stating these supporting facts.
In denying both motions, the court concluded that the inadvertent failure to attach an existing opinion letter to the complaint was a curable defect, which had been cured by an amended complaint to which was attached a seemingly-adequate opinion letter. The court identified an absence of any clearly-controlling appellate authority and a division among trial courts on the issue. The court concluded that the circumstances warranted denial of the motions. (Although it had been contested, the court accepted the evidence that had been provided (via affidavit) relating to the existence of the opinion letter, at the time of service of process on the defendants.) At the time of the earlier decision, the sole relevant appellate authority was Votre v. County Obstetrics & Gynecology Group, P.C., 113 Conn.App. 569, 585, 966 A.2d 813, cert, denied, 292 Conn. 911, 973 A.2d 661 (2009), which contained language— disputed as to whether it was dictum or controlling— relating to the propriety of belated filing of an already-existing opinion letter, and it was the significance of that language that was subject to disagreement by trial courts.
In Peters, the decision that was the basis for seeking reargument or reconsideration, the Appellate Court held that corrective action relating to an opinion letter from a similar healthcare provider had to be undertaken within the applicable statute of limitations.
The underlying...
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