LaBieniec v. Baker, 4296

Citation11 Conn.App. 199,526 A.2d 1341
Decision Date09 June 1987
Docket NumberNo. 4296,4296
CourtAppellate Court of Connecticut
PartiesLeonard LaBIENIEC v. Gerald BAKER, et al.

F. Timothy McNamara, Hartford, for appellant (plaintiff).

Francis H. Morrison III, with whom, on the brief, was Daniel L. FitzMaurice, Hartford, for appellee (named defendant).

James T. Graham, with whom, on the brief, was D. William White, Hartford, for appellee (defendant Robert Langmann).

Before DUPONT, C.J., and HULL and DALY, JJ.

DALY, Judge.

This is a medical malpractice action brought by the decedent plaintiff 1 against Gerald Baker, a radiologist, and Robert Langmann, an internist, both of whom failed to detect lung cancer in x-rays taken of the plaintiff during the course of a physical examination. In his complaint, the plaintiff alleged that the defendants' failure to diagnose his lung cancer allowed the cancer to spread and grow (metastasize) to his brain. He further claimed that the delay caused him emotional distress and a decreased chance of survival.

At the close of the plaintiff's case, the trial court directed a verdict for each of the defendants because there was insufficient evidence to establish that the oversight of the defendants was the proximate cause of any injury to the plaintiff. The plaintiff's motion to set aside the verdict was denied. The basic issues in this appeal are whether the trial court erred (1) in concluding that expert medical testimony was required in order for the jury to consider the plaintiff's claim of emotional distress and (2) in finding insufficient evidence to allow the case to go to the jury. We find no error.

The trial court found the following facts. On or about June 1, 1981, the plaintiff underwent a routine physical examination by Langmann. Chest x-rays were taken. Because the plaintiff did not properly fit the x-ray equipment and because the x-ray revealed an area of questionable haziness, the plaintiff was referred to Baker for further x-rays. Langmann informed Baker that the plaintiff had been, up until five years previously, a four to five pack a day cigarette smoker, but failed to mention the shadow on the x-ray. On or about June 10, 1981, Baker informed Langmann that the x-ray he took of the plaintiff was essentially negative. Langmann so informed the plaintiff.

On or about July 1, 1981, the plaintiff collapsed and was taken to Hartford Hospital where additional x-rays were taken. As a result, a biopsy was performed which indicated carcinoma of the lung. After a CAT scan, the plaintiff was also diagnosed as having an abnormal area of the brain. By mid-August this brain lesion was recognized as a metastasis from the lung cancer. The plaintiff underwent radiation treatment of both the lung and the brain.

While directed verdicts are not favored, they are justified if the evidence itself would require the jury, when acting reasonably and logically, to reach the conclusion embodied in the directed verdict. When reviewing the action of a trial court in directing a verdict and in refusing to set it aside, we must view the evidence in the light most favorable to the plaintiff. Boehm v. Kish, 201 Conn. 385, 388, 517 A.2d 624 (1986); Morales v. Trinity Ambulance Service, 9 Conn.App. 386, 388, 519 A.2d 90 (1986), cert. dismissed, 202 Conn. 806, 520 A.2d 1287 (1987).

It is a generally recognized rule in malpractice cases that a plaintiff must plead and prove not only that injury occurred and that the defendant was negligent, but also that the defendant's negligence caused the injury. Katsetos v. Nolan, 170 Conn. 637, 654-55, 368 A.2d 172 (1976); Green v. Stone, 119 Conn. 300, 306, 176 A. 123 (1934); 61 Am.Jur.2d, Physicians, Surgeons and other Healers § 329; annot., 13 A.L.R.2d 21; see Pisel v. Stamford Hospital, 180 Conn. 314, 340-42, 430 A.2d 1 (1980).

Medical malpractice actions involving diagnosis of cancer differ from other malpractice actions only factually. The legal analysis and elements remain the same. There are four essential elements to a malpractice action. They are: (1) the defendant must have a duty to conform to a particular standard of conduct for the plaintiff's protection; (2) the defendant must have failed to measure up to that standard; (3) the plaintiff must suffer actual injury; and (4) the defendant's conduct must be the cause of the plaintiff's injury. D. Wright & J. Fitzgerald, Torts § 88; 79 A.L.R.3d 915, 921; see Shelnitz v. Greenberg, 200 Conn. 58, 65, 509 A.2d 1023 (1986); Pisel v. Stamford Hospital, supra, 180 Conn. at 334, 430 A.2d 1; Shenefield v. Greenwich Hospital Assn., 10 Conn.App. 239, 248, 522 A.2d 829 (1987).

Thus, to be entitled to damages, the plaintiff must establish on the basis of reasonable medical probability the "necessary causal relation" between the failure of the defendants to diagnose the lung cancer and the injury the plaintiff claims to have suffered. See Shelnitz v. Greenberg, supra, 200 Conn. at 65-66, 509 A.2d 1023, and cases cited therein; see generally Cross v. Huttenlocher, 185 Conn. 390, 394-95, 440 A.2d 952 (1981). This connection can not rest upon speculation or conjecture. Shelnitz v. Greenberg, supra, 200 Conn. at 66, 509 A.2d 1023; Healy v. White, 173 Conn. 438, 443, 378 A.2d 540 (1977); Sheiman v. Sheiman, 143 Conn. 222, 225, 121 A.2d 285 (1956).

If a plaintiff is proximately harmed by a delay in a definitive diagnosis, a physician may be held liable. Schaecher v. Reinwein, 41 Ill.App.3d 1055, 1058, 355 N.E.2d 351 (1976). In this case, the trial court found that "the evidence establishes malpractice on the part of each defendant in misreading the lung x-rays and the resultant delayed diagnosis of lung cancer. The core problem presented by the evidence, and lack of evidence, relates to the issue of causation." Thus, we are concerned not with the issue of negligence, but whether the alleged malpractice was the proximate cause of any injury.


The plaintiff claims that the court erred in requiring expert medical testimony to prove mental distress. Underlying this claim is the plaintiff's assertion that the delay in diagnosing his cancer, and not the cancer itself, caused his mental anguish. The plaintiff asserted hat his distress stemmed from his belief that, had he been diagnosed sooner, the cancer would not have metastasized to his brain, that his prognosis would have been better and that the outcome would have been different.

The plaintiff is correct that expert testimony is not required to prevail on a claim of mental suffering. Our Supreme Court has held that "[a] plaintiff may recover damages in a personal injury action for pain and suffering even when such pain and suffering is evidenced exclusively by the plaintiff's subjective complaints. Hook v. Dubuque, 153 Conn. 113, 115, 214 A.2d 376 (1965)." Delott v. Roraback, 179 Conn. 406, 409, 426 A.2d 791 (1980). This court has stated that " '[w]e see no reason to subject a claim of mental suffering, which is ordinarily evidenced by subjective complaints, to a stricter scrutiny or greater care than a claim of physical suffering evidenced by the same type of complaints.' ... A plaintiff need only establish a claim for mental or emotional distress by a fair preponderance of the evidence...." Buckley v. Lovallo, 2 Conn.App. 579, 589, 481 A.2d 1286 (1984). We agree that the plaintiff can prove the existence of mental distress without expert testimony. We note, however, that the plaintiff was required to prove his claim by a "fair preponderance" of the evidence. For the reasons set out in section II, we find that the trial court's error in requiring expert testimony on this claim was harmless.


The second issue in this case is whether the trial court erred in concluding that there was insufficient evidence to allow the case to go to the jury. This issue has two parts, one relating to the claim of emotional distress, and the other relating to the claim of a decreased chance for successful treatment.


The trial court was correct in directing a verdict for the defendants on the claim of emotional distress. While it is possible that the plaintiff could have shown emotional distress without expert testimony, he failed to submit sufficient evidence of the proximate cause of the distress to allow the claim to go to the jury. The court found that the plaintiff's belief that the delay in diagnosis detrimentally affected his prognosis was mistaken and was essentially unsupported by the evidence. Moreover, he failed to demonstrate that the delay and not the cancer itself caused the claimed emotional distress. In building a case for malpractice in general, the plaintiff called his treating oncologist, Robert S. Martin. On cross-examination, Martin testified that the cancer itself was the cause of the plaintiff's emotional distress. 2

The only evidence that the delay and not the cancer was the cause of the emotional distress was testimony by the plaintiff. 3 Aside from these statements, the remainder of the plaintiff's testimony on mental distress really addressed his feelings about the disease itself rather than the delay. His wife testified that the plaintiff "thought that ... if they had done work on him June 1 rather than waiting ... he would still be working and maybe it wouldn't have metastasized as far up the brain as it did." Yet, she also testified, in general, that "he's not coping well at all" with his disease. Although not required, " 'medical science has unquestionably become sophisticated enough to provide reliable and accurate evidence on the causes of mental trauma.' Culbert v. Sampson's Supermarkets, Inc., 444 A.2d 433, 436 (Me.1982)." (Emphasis added.) Buckley v. Lovallo, supra, 2 Conn.App. 589, 481 A.2d 1286. A claim of physical suffering can go to the jury only if the plaintiff produces sufficient evidence of the suffering and that the malpractice, within reasonable medical probability, was more likely than not the cause of the physical...

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