Macchietto v. Keggi

• Decision Date: 18 September 2007
• Docket Number: No. 26987.,26987.
• Citation: 103 Conn.App. 769,930 A.2d 817
• Court: Connecticut Court of Appeals
• Parties: Richard MACCHIETTO v. John M. KEGGI et al.

930 A.2d 817

103 Conn.App. 769

Richard MACCHIETTO v. John M. KEGGI et al.

No. 26987.

Appellate Court of Connecticut.

Argued April 23, 2007.

Decided September 18, 2007.

Carey B. Reilly, Bridgeport, with whom was Cynthia C. Bott, Milford, for the appellant (plaintiff).

Augustus R. Southworth II, Waterbury, with whom, on the brief, was Russell A. Green, Milford, for the appellee (named defendant).

FLYNN, C.J., and DiPENTIMA and LAVINE, Js.

DiPENTIMA, J.

In this medical malpractice action, the plaintiff, Richard Macchietto, appeals from the judgment of the trial court setting aside the jury verdict in his favor and rendering judgment in favor of the defendant John M. Keggi.¹ The plaintiff's primary claim on appeal is that the court abused its discretion in setting aside the verdict because the evidence presented at trial was sufficient to support the jury's finding that the negligent actions of the defendant proximately caused the plaintiff's injuries. As an alternative argument, the plaintiff claims that if the court properly set aside the verdict, it then should have ordered a new trial rather than render judgment in favor of the defendant. We affirm the judgment of the trial court.

The jury reasonably could have found the following facts. In April, 1997, the plaintiff began treatment with the defendant for left hip pain. On May 6, 1997, the defendant performed a total hip replacement on the plaintiff at Waterbury Hospital.² During his recuperation, the plaintiff's hip became infected. On June 17, 1997, the defendant performed a debridement procedure to cleanse the septic hip. The plaintiff followed up with the defendant, but the plaintiff's hip was unstable, and he was experiencing pain. The plaintiff began treatment with a different orthopedic surgeon, and on May 18, 1999, that surgeon performed a Girdlestone procedure, which removed all of the components of the hip replacement. Following the Girdlestone procedure, the plaintiff's left leg was almost two inches shorter than his right leg. At the time of trial, the plaintiff continued to be unable to walk without a walker and experienced pain with any movement.

In June, 1999, the plaintiff brought this action for medical malpractice against the defendant, alleging, inter alia, that the defendant breached the standard of care in reading, recording or reporting the plaintiff's postoperative X ray findings. The jury trial commenced on January 5, 2005. At the close of evidence, the court granted the plaintiff's motion to amend the complaint to conform to the proof and denied the defendant's motion for a directed verdict. The jury returned a verdict in favor of the plaintiff, awarding him economic and noneconomic damages totaling $100,000. There was an inconsistency between the verdict and the jury's answers to the interrogatories that had been submitted to it in that the jury returned a verdict in favor of the plaintiff but found no proximate cause. Thereafter, the court reinstructed the jury on the issue of proximate cause and on one of the interrogatories. The defendant objected to the court's failure to direct a verdict in his favor. After further deliberations, the jury amended its responses to the interrogatories and again returned with a verdict in favor of the plaintiff. According to the interrogatories, the jury found that the defendant improperly read, recorded or reported the plaintiff's postoperative X ray findings. The jury further found that those actions were the proximate cause of the plaintiff's injuries. The court accepted the amended interrogatories and the verdict.

Two weeks after the court accepted the verdict, the defendant moved to set aside the verdict and for a judgment notwithstanding the verdict and for remittur. The plaintiff objected to that motion. The court heard argument on the postverdict motion. By its memorandum of decision, filed September 16, 2005, the court granted the defendant's motion to set aside the verdict and for judgment notwithstanding the verdict. This appeal followed. Additional facts will be set forth as necessary.

Our standard of review concerning a motion to set aside a verdict is well settled. "[T]he proper appellate standard of review when considering the action of a trial court granting or denying a motion to set aside a verdict ... [is] the abuse of discretion standard.... In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling.... Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done.... We do not ... determine whether a conclusion different from the one reached could have been reached." (Internal quotation marks omitted.) Kramer v. Petisi, 91 Conn.App. 26, 37, 879 A.2d 526, cert. granted on other grounds, 276 Conn. 916, 888 A.2d 84 (2005). As recently restated by our Supreme Court, "[a] motion to set aside the verdict should be granted if the jury reasonably and legally could not have reached the determination that [it] did in fact reach.... If the jury, without conjecture, could not have found a required element of the cause of action, it cannot withstand a motion to set aside the verdict." (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 646, 904 A.2d 149 (2006).

Although the plaintiff presents a litany of arguments in support of his appeal, the crux of the plaintiff's primary claim is that the jury reasonably could have found that the defendant improperly read, recorded or reported postoperative X ray findings, which actions proximately caused the plaintiff's injuries. Alternatively, the plaintiff claims that even if the court properly set aside the verdict, it should have ordered a new trial rather than render judgment in favor of the defendant. Pursuant to the standard previously outlined, we first review the law governing the plaintiff's primary claim and the evidence presented at trial to determine whether the court abused its discretion in setting aside the jury's verdict.

I

The plaintiff's primary claim is that the court abused its discretion in setting aside the jury's finding that the defendant's improper reading, recording or reporting the plaintiff's postoperative X ray findings proximately caused the plaintiff's injuries. We are not persuaded.

In setting aside the jury's verdict and rendering judgment in favor of the defendant, the court ruled that there was "absolutely no testimony concerning the necessity to remove the prosthesis or restrain the plaintiff from weight bearing until after the postoperative X rays were taken.³ There is no evidence to support the jury's finding that the defendant's breach of the standard of care of reading, recording and reporting the postoperative X rays was a proximate cause of the plaintiff's injuries." Although the plaintiff represents that the court granted the defendant's postverdict motion solely on the basis of the first half of that ruling, we consider the court's ruling as a whole and do not isolate individual parts as suggested by the plaintiff.

"[T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury. . . . Generally, the plaintiff must present expert testimony in support of a medical malpractice claim because the requirements for proper medical diagnosis and treatment are not within the common knowledge of laypersons." (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, supra, 279 Conn. at 656, 904 A.2d 149; Boone v. William W. Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005). "The test for cause in fact is [w]ould the injury have occurred were it not for [the defendant's] negligent . . . conduct . . . ? Proximate cause is defined as [a]n actual cause that is a substantial factor in the resulting harm . . . . The substantial factor test, in truth, reflects the inquiry fundamental to all proximate cause questions; that is, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence." (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, supra, at 656, 904 A.2d 149. As we have stated previously, "[i]n Connecticut, both breach of the standard of care and proximate cause must be proved by expert testimony." (Emphasis added.) Campbell v. Pommier, 5 Conn. App. 29, 32, 496 A.2d 975 (1985); see also Grody v. Tulin, 170 Conn. 443, 449, 365 A.2d 1076 (1976).

It was incumbent on the plaintiff to prove not only that the defendant's actions breached the standard of care but also that those actions were the proximate cause of the plaintiff's injuries. Although the plaintiff had two experts, Stephen Woolson, a board certified orthopedic surgeon, and Allen Elster, a board certified radiologist, who both testified as to the defendant's breach of the standard of care with respect to the reading, recording and reporting of the plaintiff's postoperative X rays, neither Woolson nor Elster testified as to whether that breach was the proximate cause of the plaintiff's injuries. Although we acknowledge that an expert opinion need not walk us through the precise language of causation, there must be more than mere speculation or conjecture.⁴ State v. Nunes, 260 Conn. 649, 672-73, 800 A.2d 1160 (2002); Struckman v. Burns, 205 Conn. 542, 554-55, 534 A.2d 888 (1987). "To be reasonably probable, a conclusion must be more likely than not. . . . Whether an expert's testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert's testimony." (Citation omitted.) Struckman v. Burns, supra, at...