Milliun v. New Milford Hosp.

• Decision Date: 31 May 2011
• Docket Number: No. 30875.,30875.
• Citation: 129 Conn.App. 81,20 A.3d 36
• Court: Connecticut Court of Appeals
• Parties: Leslie MILLIUNv.NEW MILFORD HOSPITAL et al.

129 Conn.App. 81

20 A.3d 36

Leslie MILLIUN

v.NEW MILFORD HOSPITAL et al.

No. 30875.

Appellate Court of Connecticut.

Argued Jan. 11, 2011.Decided May 31, 2011.

David S. Golub, with whom were Jonathan M. Levine and, on the brief, Marilyn J. Ramos, Stamford, for the appellant (substitute plaintiff).Michael G. Rigg, with whom, on the brief, were Amy F. Goodusky and Roland F. Young III, Hartford, for the appellee (named defendant).DiPENTIMA, C.J., and BEAR and BORDEN, Js.BORDEN, J.

In this medical malpractice action, the plaintiff, Lynnia Milliun, the conservatrix of her sister, Leslie Milliun,¹ appeals from the summary judgment rendered by the trial court in favor of the defendant New Milford Hospital.² On appeal, the plaintiff claims that the court improperly (1) concluded that the opinions of Leslie's treating physicians were inadmissible on the issue of causation, (2) refused to compel certain treating physicians to be deposed and (3) denied her request for an extension of time to respond to the defendant's motion for summary judgment. Because we agree with the plaintiff on her first and second claims, we do not reach her third claim, and we reverse the judgment of the trial court granting the defendant's motion for summary judgment.

The record reveals the following factual and procedural history. The plaintiff claims that the defendant was negligent in the treatment of Leslie when she was admitted into its care in July, 2002. Prior to that date, she had been a patient in the defendant's care in connection with the treatment of her stiff man syndrome (SMS). In her amended complaint, the plaintiff alleged that, while in the defendant's care, Leslie suffered severe respiratory dysfunction, during which time her rate of breathing was reduced to two breaths per minute for a period of four minutes. As a result of this anoxic incident, the plaintiff further alleged, Leslie had suffered severe injury to her cognitive functioning, including memory loss, loss of motor function and speech impairment. The plaintiff claimed that Leslie's brain injury was caused by the defendant's negligence, namely, failure to monitor Leslie properly, failure to respond to her respiratory dysfunction and the administration of medication that is known to cause respiratory dysfunction.

In April, 2003, prior to the commencement of this action, Leslie had sought treatment at the Mayo Clinic in Rochester, Minnesota, in connection with her cognitive health. At the Mayo Clinic, she first was seen by Kathleen M. McEvoy, a physician. McEvoy reported that Leslie had brought extensive outside records with her, along with an investigative report from the department of health regarding the anoxic incident that occurred while she was in the care of the defendant. McEvoy's admittance notes indicated that the plaintiff also reported this event to her. At that time, McEvoy reported in her evaluation that Leslie was suffering from a severe neurological disorder, and, although some manifestations suggested SMS, “she obviously has additional deficits and involvement that would not be expected with [SMS] alone.”

In February, 2005, Leslie returned to the Mayo Clinic to address her worsening cognitive health. In her evaluation report, McEvoy stated her impressions of Leslie's condition as follows: “It is still my clinical impression based on the temporal profile of the onset of her symptoms, that the patient has a primary autoimmune disorder consistent with [SMS], which by history was associated with dysarthria but no cognitive impairment, along with a superimposed anoxic encephalopathy which developed by her report of July 10, 2002....”

McEvoy then referred Leslie to physicians Keith A. Josephs and Stefan A. Dupont at the Mayo Clinic's behavioral neurology unit for the purpose of assessing her cognitive functions. Upon his neurological examination, Dupont, a resident at the Mayo Clinic, reported in his neurology consult that her “cognitive dysfunction appears to be multidomain in nature, and based on the recounted temporal events, this all seems to have occurred because of anoxic encephalopathy suffered during her respiratory arrest in 2002.”

Josephs' evaluation echoed Dupont's conclusion. He reported as follows: “It is my opinion that [Leslie's] cognitive impairment is secondary to whatever event occurred or whatever transpired in 2002. The family member tells me that there was anoxia and that there was a change after that. Therefore, one must conclude that her cognitive impairment was secondary to the event that occurred in 2002. Arguing for this being the process of her cognitive impairment also is the fact that she has not had any significant progression since 2002. The cognitive impairment in my opinion is not related to the patient's diagnosis [of SMS] and is not in keeping with a neurodegenerative syndrome given the lack of progression.” Josephs went on to diagnose her as suffering from “cognitive impairment (static encephalopathy secondary to anoxic brain damage).”

In July, 2008, the plaintiff filed the underlying amended complaint in which she alleged that the defendant was negligent in its care and treatment of Leslie. The court scheduled trial to commence on January 21, 2009,³ and the plaintiff was required to disclose all of her expert witnesses by September 15, 2008. On that date, the plaintiff disclosed nine expert witnesses, including McEvoy and Josephs. All were identically disclosed on the issues of causation and damages.

In November, 2008, the defendant filed a motion to preclude the plaintiff from calling any of her expert witnesses at trial, contending that she had failed to make them available for depositions and, therefore, that it would be prejudiced by having to conduct pretrial discovery so close to the forthcoming trial date. At a subsequent hearing before the court on the motion to preclude, counsel for both parties indicated that they were experiencing difficulty deposing the plaintiff's experts, as the Mayo Clinic had an internal policy that limited the depositions of its treating physicians. In response to the court's concerns, the plaintiff represented that none of the witnesses from the Mayo Clinic had been retained as experts to be called at trial but instead had been disclosed as experts for the purpose of introducing their medical records. ⁴ At the conclusion of the hearing, the parties agreed to take the depositions by teleconference, limited to questions concerning the information contained in the treating physicians' medical reports.

On January 26, 2009, the court held a hearing on the status of the depositions. At the hearing, the defendant again expressed concern over not having had the opportunity to depose all of the plaintiff's experts. The court thereafter stressed to the parties that the defendant had the right to obtain the deposition testimony of any treating physicians on whose medical reports the plaintiff intended to rely at trial. The plaintiff then explained that, because the witnesses were not within her control, the most appropriate action would be to have a commission appointed in order to compel the experts to attend their depositions in Minnesota in accordance with General Statutes § 52–148c.⁵ The following day, the plaintiff filed a motion for the appointment of a commission to summon by subpoena and to obtain the depositions of the treating physicians.

On January 29, 2009, the parties reported back to the court that no additional depositions for the plaintiff's Mayo Clinic witnesses had been taken. The defendant thereafter repeated its request that, because of undue prejudice and delay in the taking of their depositions, the plaintiff should be precluded from relying on the medical reports of the treating physicians on the issue of causation. In response, the plaintiff asserted that the medical records themselves were sufficient evidence to establish the cause of Leslie's cognitive impairments and, on the court's request, she identified the portions of the medical reports that she claimed contained adequate opinions on causation. Specifically, the plaintiff pointed to the portion of McEvoy's 2005 entry in which she stated that, in her clinical opinion, Leslie was suffering from SMS “along with a superimposed anoxic encephalopathy which developed by her report of July 10, 2002.” The plaintiff posited that such a conclusion could be introduced in lieu of live expert testimony in order to establish the element of causation.

At that point, the court expressed concern over the fact that McEvoy's impressions appeared to be based exclusively on the plaintiff's and Leslie's own reports of the anoxic incident. After much discussion, the court ruled that the Mayo Clinic records, without any supporting testimony, were insufficient to establish a proper foundation for expert medical opinion on causation because they were predicated on layperson opinion and inadmissible hearsay. The court, over objection from the defendant,⁶ proceeded to grant in part the plaintiff's motion for the appointment of a commission to permit the taking of McEvoy's and Josephs' depositions, and indicated that if those physicians did not testify adequately to support the basis of the plaintiff's theory on causation, their records would only be admissible insofar as they reflected Leslie's treatment at the Mayo Clinic, with any portions connected to the causation of her injuries being redacted.

On February 2, 2009, the parties went forward with Josephs' deposition. At the outset, counsel for the Mayo Clinic, appearing on behalf of Josephs, stated that he would not be opining on the issues of standard of care or causation and that he would only testify as to his care of Leslie as a treating physician. Upon his initial examination by the defendant, Josephs testified, consistent with his counsel's opening remarks, that it was not his intent to give an opinion as to whether the defendant's care and treatment of...