Klein v. Norwalk Hosp.

• Decision Date: 21 December 2010
• Docket Number: No. 18395.,18395.
• Citation: 9 A.3d 364,299 Conn. 241
• Court: Connecticut Supreme Court
• Parties: Eric KLEIN et al. v. NORWALK HOSPITAL.

9 A.3d 364

299 Conn. 241

Eric KLEIN et al.

v.NORWALK HOSPITAL.

No. 18395.

Supreme Court of Connecticut.

Argued Sept. 20, 2010.

Decided Dec. 21, 2010.

Brenden P. Leydon, Stamford, with whom, on the brief, was Patrick J. Filan, Westport, for the appellant (named plaintiff).

Frank W. Murphy, with whom was Kara A.T. Murphy, Norwalk, for the appellee (defendant).

KATZ, PALMER, McLACHLAN, EVELEIGH and VERTEFEUILLE, Js.

KATZ, J.

The named plaintiff, Eric Klein,¹ appeals, following our grant of his petition for certification, from the judgment of the Appellate Court affirming the trial court's judgment, rendered after a jury verdict in a medical malpractice action, in favor of the defendant, Norwalk Hospital. The plaintiff claims that the Appellate Court, without reaching the merits of his individual claims, improperly concluded that it constituted harmless error when the trial court: (1) on the basis of what it considered to be inadequate disclosure, precluded testimony by one of the plaintiff's expert witnesses to refute the defendant's theory of causation; and (2) admitted testimony from one of the defendant's expert witnesses as to this alleged cause without establishing the reliability of the basis of that opinion pursuant to a Porter hearing.² We reverse the judgment of the Appellate Court.

The Appellate Court opinion recites the following facts and procedural history pertinent to the plaintiff's appeal. "On February 27, 2003, the plaintiff, a dentist, was admitted [by the defendant] because of a perforated appendix and infectious abscesses. Later that day, he underwent emergency surgery to remove his burst

[9 A.3d 367, 299 Conn. 244]

appendix as well as a portion of his large intestine that had a cyst on it. The plaintiff recuperated during the immediate postoperative period as a patient in the hospital. Part of his postoperative treatment was intravenous antibiotic therapy to address the infection that resulted from his appendix bursting. On March 3, 2003, as part of her duties as a registered nurse employed by the [defendant] on its intravenous team, Patricia DePaoli inspected the plaintiff's existing intravenous lines to determine if they required changing or other treatment. Morton Klein, the plaintiff's father, was in the room visiting his son when DePaoli entered. Upon inspection, DePaoli discovered, on the back of the plaintiff's left hand, around an existing intravenous site, an area of low grade phlebitis.³ She began to replace the existing intravenous line in his left hand with a new intravenous line farther up his arm. During this procedure, Morton Klein testified, his son shouted out in pain on three occasions and that after the third incident, DePaoli terminated her attempt at inserting an intravenous line into the plaintiff's left arm. Morton Klein, however, did not see any of the procedure performed by DePaoli on his son's left arm.

"The plaintiff testified that during the procedure to place a new intravenous line into his left arm, he felt a distinct and sharp pain shooting down his arm just after DePaoli inserted the needle. He exclaimed in pain but allowed DePaoli to keep going with the procedure. He felt another sharp pain and again exclaimed, telling DePaoli that she had hit a nerve. DePaoli continued with the procedure until the plaintiff exclaimed in pain for a third time, complaining that his entire left hand had gone 'dead' and telling DePaoli to remove the needle. After applying a dry sterile dressing to the area ofthe unsuccessful attempt, DePaoli then, without incident, inserted another intravenous line in the plaintiff's right arm.

"After his release [by the defendant], the plaintiff asserted that he was having ongoing difficulties using his left hand and saw many medical specialists, including neurologists and a hand surgeon. These lingering effects were diagnosed, according to the plaintiff, as anterior interosseous ⁴ nerve palsy caused by an improper attempted intravenous line insertion and had a negative impact on his dental practice and overall quality of life. He brought this action against the [defendant], alleging medical malpractice on its part for the alleged improper insertion of the intravenous line by its employee, DePaoli, which resulted in the diagnosis of anterior interosseous nerve palsy.

"On January 11, 2006, the plaintiff, pursuant to Practice Book § 13-4(4), disclosed Clifford Gevirtz, an anesthesiologist specializing in pain management, as an expert witness. According to the disclosure, Gevirtz was to testify on matters concerning the standard of care to which the defendant was held, departures from the standard of care, causation and damages. [The defendant thereafter disclosed Robert Strauch, an orthopedic surgeon, as an expert to testify that the plaintiff's alleged injury was caused by a condition called Parsonage Turner Syndrome.] ⁵ [Gervirtz]was not specifically disclosed as an expert on Parsonage Turner Syndrome nor was it disclosed that he would be testifying [specifically] about the disease. During his directexamination of Gevirtz, Patrick J. Filan, counsel for the plaintiff, asked [Gevirtz] if he was 'familiar with the condition known as Parsonage Turner Syndrome.' The court sustained the defendant's objection on the ground that the plaintiff's disclosure did not encompass Gevirtz' testifying on the syndrome because the plaintiff was not 'in compliance with the Practice Book requirement with respect to disclosure in order to use this expert witness for [that] purpose.' The court allowed Filan, outside of the jury's presence, to make a proffer as to what Gevirtz would have testified to in regard to Parsonage Turner Syndrome. [In that proffer, Gevirtz described Parsonage Turner Syndrome, established his familiarity and expertise with that syndrome, stated his opinion that this syndrome was not the cause of the plaintiff's alleged injury, and explained the basis for that conclusion.] ⁶

"Later in the trial, Frank W. Murphy, counsel for the defendant, called [Strauch] ... to testify as an expert witness on the requisite standard of care and causation. The court, upon Filan's objection, conducted a Porter hearing to determine whether, and if so, what scientific methodology would allow [Strauch] to diagnose, within a reasonable degree of medical certainty, without examination, the plaintiff's [alleged] injury as being caused by Parsonage Turner Syndrome. After voir dire examination by both Murphy and Filan, the court allowed Strauch to testify that, on the basis of his review of the plaintiff's medical records and deposition testimony, the plaintiff's alleged injury was caused byParsonage Turner Syndrome." Klein v. Norwalk Hospital, 113 Conn.App. 771, 773-77, 967 A.2d 1228 (2009).

The record reveals the following additional facts. After the conclusion of evidence, closing arguments, and the instructions to the jury, the trial court submitted the case to the jury for deliberation, along with special interrogatories. The jury answered the first interrogatory in the negative: "Did the plaintiff ... prove by a preponderance of the evidence that [the] defendant ... in its care and treatment of [the plaintiff] breached the standard of care for registered nurses in any of the ways alleged in the complaint?" Along with their answer, the jury returned a verdict for the defendant,which subsequently was accepted by the trial court. The plaintiff thereafter filed a motion to set aside the verdict and a motion for a new trial, both of which were denied by the trial court. The plaintiff thereafter appealed to the Appellate Court from the judgment rendered in accordance with the verdict.

In the Appellate Court, the plaintiff claimed that the trial court improperly had excluded Gevirtz' testimony about Parsonage Turner Syndrome and that the trial court improperly had permitted Strauch's testimony about the same subject. The Appellate Court did not reach the propriety of either of the trial court's rulings, but instead concluded that any impropriety that may have existed was harmless. In doing so, the Appellate Court relied on the standard this court had articulated in Kalams v. Giacchetto, 268 Conn. 244, 842 A.2d 1100 (2004), that "[i]n the absence of a showing that the [excluded] evidence would have affected the final result, its exclusion is harmless." (Internal quotation marks omitted.) Klein v. Norwalk Hospital, supra, 113 Conn.App. at 778, 967 A.2d 1228, quoting Kalams v. Giacchetto, supra, at 250, 842 A.2d 1100. Accordingly, the Appellate Court affirmed the judgment of the trial court. This certified appeal followed.⁷

In the present appeal, the plaintiff claims that: (1) the trial court's exclusion of Gevirtz' testimony about Parsonage Turner Syndrome was improper; (2) the trial court's admission of Strauch's testimony about the same subject was improper; and (3) the Appellate Court improperly concluded that these decisions, even if they were improper, were harmless. We agree that the evidentiary rulings of the trial court were improper and that the plaintiff is entitled to a new trial.

I

The plaintiff first claims that it was both improper and harmful for the trial court to exclude Gevirtz' testimony regarding Parsonage Turner Syndrome. Specifically, the plaintiff contends that the trial court improperly concluded that his initial disclosure that Gevirtz would testify regarding the cause of the plaintiff's injuries was not adequate to comply with the rules of practice and that, to do so, the plaintiff would have needed to file a supplemental disclosure specifically stating that Gevirtz would offer an opinion that the plaintiff's injuries had not been caused by Parsonage Turner Syndrome. The plaintiff further contends that his disclosure was sufficient to apprise the defendant in light of the fact that the testimony the plaintiff attempted to elicit from Gevirtz related to its own defense. Finally, the plaintiff contends that the exclusion of this evidence was harmful...