Marchell v. Whelchel, (AC 20604)

CourtAppellate Court of Connecticut
Citation66 Conn. App. 574,785 A.2d 253
Decision Date30 October 2001
Docket Number(AC 20604)

66 Conn. App. 574
785 A.2d 253


(AC 20604)

Appellate Court of Connecticut.

Argued May 31, 2001.

Officially released October 30, 2001.

Foti, Schaller and O'Connell, Js.

66 Conn. App. 575
Peter M. Appleton, with whom was Peter T. Evans, for the appellants (plaintiffs)

Joseph M. Musco, for the appellee (defendant).



The plaintiff, Andrew H. Marchell,1 appeals from the judgment of the trial court, rendered following a jury trial, in favor of the defendant, Lynn W. Whelchel, Jr., in this medical malpractice action. The plaintiff claims on appeal that the court improperly (1) denied his motion to set aside the verdict, (2) admitted into evidence irrelevant and prejudicial testimony of the defendant's medical expert, (3) limited his closing argument, (4) refused to allow him to amend his complaint and (5) instructed the jury. We affirm the judgment of the trial court.

The following facts and procedural history are relevant to the disposition of the plaintiffs appeal. On December 12, 1995, the plaintiff consulted a podiatrist, Andrew E. Schwartz, regarding the removal of a bunion on his left foot. Schwartz examined the plaintiff to determine

66 Conn. App. 576
if he was fit to undergo a bunionectomy.2 His examination revealed that the plaintiff had a weaker pulse in his foot. That concerned Schwartz because he thought that the weaker pulse might indicate a lack of circulation and blood flow in that area, which might impair the plaintiffs ability to heal after the bunion removal. Schwartz referred the plaintiff to the defendant, a vascular surgeon, to determine whether the plaintiff had adequate circulation to recover from the proposed procedure.3

On December 15, 1995, the defendant examined the plaintiff. He reviewed the plaintiffs medical history, physically examined him and performed two diagnostic tests. The initial physical examination indicated to the defendant that the plaintiff had adequate circulation in his foot. Despite those findings, the plaintiffs prior physical health and age prompted the defendant to conduct two additional tests.

The first test was a Doppler study, which is performed to assess the blood flow through a patient's arteries and into his extremities. That test requires the administering physician to hold an instrument against the patient's body at various points, listen for blood flow as it is reproduced and amplified by certain machinery, and determine at what rate, if any, blood is pumping through the patient's extremities. According to the defendant, the results of that test on the plaintiff indicated that he had an adequate amount of blood flowing through the foot.

The defendant next conducted a segmental blood pressure test, which also is called an ankle brachial

66 Conn. App. 577
index (test). That test requires the administering physician to take the patient's regular blood pressure at the arm and then take another blood pressure reading at the ankle. Those readings are then compared and scaled on an index to indicate the amount of blood flow that the patient has in the extremity. The defendant conducted that test but measured the patient's blood pressure at the thigh as opposed to the ankle. Though the defendant actually performed a thigh brachial index test, he reported the results as an ankle brachial index reading. The defendant concluded that this test revealed no vascular insufficiency

On the basis of his total examination of the plaintiff, the defendant determined that the plaintiff did not have a vascular insufficiency. He also concluded that the lack of pulse in the plaintiff's foot that Schwartz described was the result of arteriosclerosis, which is a hardening of the artery walls. That condition had made it impossible to get a pulse in the patient's foot because the affected arteries could not be compressed sufficiently to feel blood flow. Because a hardening of the arterial wall is not the equivalent of a blockage or obstruction within the artery itself, however, the defendant did not believe that condition necessarily indicated a blood flow problem.

The defendant subsequently advised Schwartz of his findings and determination of vascular sufficiency in a written report. On December 29, 1995, Schwartz performed the bunionectomy on the plaintiffs left foot. Following the procedure, the plaintiff began to experience complications. A follow-up visit to Schwartz on January 11, 1996, revealed signs of infection and that some of the tissue on the plaintiffs left foot had become necrotic.

Schwartz transferred the plaintiff on that day to the care of Dennis D. D'Onofrio, another podiatrist, at

66 Conn. App. 578
which time the plaintiff was admitted to Charlotte Hungerford Hospital in Torrington for treatment of the infection and removal of the necrotic tissue. While at the hospital, the plaintiff underwent a Duplex study, which is similar to the Doppler examination that the defendant had earlier performed. Those test results indicated that the plaintiff had significant vascular compromise. Another ankle brachial index test was attempted at that time, but was unsuccessful because the plaintiffs arteries could not be constricted with the blood pressure cuff. On January 19, 1996, the plaintiff underwent an angiogram at the hospital, which indicated a vascular insufficiency

On January 20, 1996, the plaintiff was transferred to the John Dempsey Hospital in Farmington, where Steven Ruby, another vascular surgeon, took charge of the plaintiffs care and continued to treat the plaintiffs infection. The infection subsequently healed despite the failure of bypass surgery to increase blood flow in the plaintiffs foot. Although that infection healed, another infection settled in the plaintiffs left great toe. The toe subsequently became gangrenous and had to be amputated on January 26, 1996. After being hospitalized again in June, 1996, the plaintiff also successfully fought off another infection in his left foot.

The plaintiff filed a medical malpractice complaint against the defendant on March 13, 1998, alleging that the defendant breached the professional standard of care for physicians in the defendant's profession. Specifically, the complaint alleged that the postbunionectomy complications were caused by the defendant's negligent failure to diagnose his peripheral vascular insufficiency and his negligent failure to perform adequate and accurate tests to assess that condition, and that the defendant improperly cleared the plaintiff to undergo the bunionectomy.

66 Conn. App. 579
In support of his malpractice claims against the defendant, the plaintiff elicited expert testimony that, in the circumstances faced by the defendant, a vascular surgeon has a duty to perform a Doppler study and an ankle brachial index test. The plaintiff's experts further testified that those tests had to be performed to assess the plaintiffs condition adequately. They also testified that the defendant's performance of those two tests, as well as his conclusions and reporting, were below the acceptable standard of care because they were inaccurate, incorrect or both.

The defendant rebutted the testimony of the plaintiffs experts with his own testimony as an expert. As an expert on the standard of care, the defendant testified that the applicable standard does not require that an ankle brachial index test be performed to assess vascular insufficiency. He offered the opinion that no single test is a conclusive indicator of vascular condition. Rather, the standard requires a broader approach when reaching a diagnosis. A physician assessing a patient's vascular sufficiency must consider all of the elements of his evaluation in the patient's case when reaching his conclusion precisely because no single test can be relied on as conclusive.

The plaintiff also offered the results of the Duplex study and the later angiogram, which were both performed when the plaintiff was hospitalized, as evidence to prove that the plaintiff did have a vascular insufficiency.4 The plaintiffs experts testified as to those results, and concluded that the Duplex study and the angiogram findings prove that the defendant failed to diagnose the plaintiffs condition because the defendant could not reasonably have failed to find the insufficiency

66 Conn. App. 580
only thirty days earlier when performing a similar Doppler test.

The plaintiff tried to establish that the defendant had misinterpreted the Doppler test that he had administered. He offered the testimony of Richard Hurwitz, a vascular surgeon, that it would have been impossible for the defendant, who did virtually the same study only one month earlier, to fail to detect the presence of the plaintiff's vascular insufficiency because the results of the second exam were clear and indicated vascular insufficiency. Hurwitz based his testimony on the findings of the Duplex study that was conducted when the plaintiff was hospitalized on January 11, 1996.

The defendant then offered the testimony of Steven P. Rivers, a vascular surgeon, who was called as an expert on causation. Rivers testified that the Duplex study performed on the plaintiff may have been misinterpreted because the result was reported in terms of percent of blood flow in the plaintiffs artery, yet that test really does not measure or provide such information. Rivers explained that the results of that study are subjective and qualitative because one can only listen to the blood flow and assess circulation on the basis of what he or she hears. Rivers was of the opinion that a Duplex study, therefore, cannot determine vascular sufficiency, as the plaintiff claims, because it cannot quantify the amount of circulation reduction in an artery. He also testified that, much like a Doppler study, an angiogram does not provide a quantitative measure of blood flow reduction or arterial insufficiency. Rather, that test provides...

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