Perez v. Mount Sinai Hosp., 3680

• Decision Date: 27 May 1986
• Docket Number: No. 3680,3680
• Citation: 509 A.2d 552,7 Conn.App. 514
• Court: Connecticut Court of Appeals
• Parties: Secundina PEREZ v. MOUNT SINAI HOSPITAL et al.

Page 552

509 A.2d 552

7 Conn.App. 514

Secundina PEREZ v. MOUNT SINAI HOSPITAL et al.

No. 3680.

Appellate Court of Connecticut.

Argued March 18, 1986.

Decided May 27, 1986.

Thomas William Mochnick, Hartford, for appellant (plaintiff).

Ernest J. Mattei, with whom, on brief, was Paul D. Williams, Hartford, for appellees (defendants).

Before BORDON, DALY and BIELUCH, JJ.

DALY, Judge.

The plaintiff instituted this medical malpractice action against the defendant Mount Sinai Hospital and the defendant physician, David Rothman, for improperly injecting her with a drug allegedly causing certain injuries. The trial court directed a verdict for the defendants and denied the plaintiff's motion to set aside the verdict. ¹ The plaintiff has appealed from these actions of the trial court and from the granting of motions to exclude expert medical testimony and to exclude certain documentary evidence.

In 1975, the plaintiff, Secundina Perez, was sixteen years old and was receiving prenatal care at the Mount Sinai Hospital clinic from Nathan Fischer, a resident physician in the employ of the hospital. The plaintiff's child was born on September 7, 1975. In October, 1975, the plaintiff, thereafter, returned to the hospital for a physical check-up and for birth control advice. On November 10, 1975, while at the hospital, she was examined and treated by Rothman, who injected her with the drug "Depo-Provera" as a birth control measure. The drug was an alternative to other birth control measures which were found to be inappropriate for the plaintiff. The plaintiff claims that, subsequent to this treatment, she experienced heavy vaginal bleeding which continued until December, 1976, when she was five months pregnant with her second child. She claimed to have also suffered from dizziness and nervousness. The plaintiff denies that she had been warned of the side effects of the drug and, had she been so warned, she claims she would never have consented to its injection.

The following brief procedural history of the case brings us to the ensuing appeal. This action was instituted by writ dated June 14, 1977. On April 19, 1978, the defendants served the plaintiff with interrogatories concerning whether she had employed an expert with regard to this action. On March 19, 1979, the plaintiff answered those interrogatories in the negative. On August 31, 1981, in response to a second set of interrogatories, filed on April 14, 1981, the plaintiff answered that no physician had diagnosed her condition as being causally related to the injection of Depo-Provera administered to her on November 10, 1975.

A third set of interrogatories, filed by the defendants on June 27, 1984, sought to elicit the name of each expert which the plaintiff intended to call, as well as the substance of their testimony. The plaintiff did not respond to these interrogatories. On July 23, 1984, the trial court, Aspell, J., granted the defendants' motion to exclude expert testimony on the ground that the plaintiff failed to inform the defendants of the existence or identity of any expert witness. On August 29, 1984, the plaintiff subpoenaed Fischer to testify as an expert. On August 30, 1984, just prior to the commencement of the jury selection, the defendants moved in limine to prohibit the plaintiff from seeking to elicit expert testimony as to standard of care or causation from "Dr. Fischer or any other doctor employed by Mt. Sinai now or in the past." During trial, Fischer was prohibited, not only from testifying to the standard of care and causation, but also as to the authoritative nature of the Physician's Desk Reference, a medical drug treatise.

On appeal, the plaintiff claims that the trial court erred (1) in excluding the expert testimony of Fischer concerning the issues of standard of care and causation and (2) in prohibiting the introduction of the Physician's Desk Reference.

The plaintiff claims that she correctly answered the interrogatories of April 19, 1978, and April 14, 1981, because she, in fact, had not "employed" (in the sense of "hire") any expert at that time. The plaintiff further contends that it was not until the filing of the June 25, 1984 interrogatories that she was asked to identify any expert witness whom she intended to call. On July 23, 1984, the trial court granted the defendants' motion to exclude the testimony of any expert witness. In light of this, the plaintiff claims that she was not allowed thirty days, pursuant to Practice Book § 224, in which to respond to the interrogatories propounded on June 25 1984. The plaintiff further claims there is a distinction between a treating physician and an independent medical expert.

The trial court correctly concluded that the use of the word "employ" in the interrogatories also connotes "to make use of." Over a period of approximately six years, the plaintiff never answered the interrogatories requesting the identity of any expert witness. "A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion." Practice Book § 220(A)(1). Section 231 of the Practice Book further provides that "[i]f any party has failed to answer interrogatories or to answer them fairly ... or has failed to comply with the provisions of Sec. 232 ² ... the court may, on motion, make such order as the ends of justice require. Such orders may include the following: ... (d) The entry of an order prohibiting the party who has failed to comply from introducing designated matters in evidence...." (Footnote added.)

We need not consider the plaintiff's claim that she was not afforded, pursuant to Practice Book § 224, thirty days in which to respond to the third set of interrogatories. The plaintiff failed to answer the first two sets of interrogatories and, if she did "employ" an expert thereafter, she had a continuing duty, under Practice Book § 232, to disclose the identity of any expert witness whom she intended to call to testify. Further, the plaintiff never responded to the third set of interrogatories even after the thirty day period. The term "expert" may be extended to "all persons professionally acquainted with the science or practice in question." Bryan v. Branford, 50 Conn. 246, 248 (1882). Practice Book § 220(A)(1) employs the term "expert witness" and does not draw a distinction between treating and independent experts.

"Such a 'cat and mouse' game was properly not condoned by the trial court." Sturdivant v. Yale-New Haven Hospital, 2 Conn.App. 103, 106, 476 A.2d 1074 (1984). The discovery rules are designed to facilitate trial proceedings and to make a "trial less a game of blindman's bluff and more a fair contest with the basic issues and facts disclosed to the fullest practical extent." United States v. Procter & Gamble, 356 U.S. 677, 682, 78 S.Ct. 983, 986, 2 L.Ed.2d 1077 (1958). "The court's decision on whether to impose the sanction of excluding the expert's testimony concerning causation rests within the sound discretion of the court." Sturdivant v. Yale-New Haven Hospital, supra, 2 Conn.App. 107, 476 A.2d 1074. Unless the trial court had abused a legal discretion, its action should not be disturbed; in making this analysis, we must afford the decision of the trial court great weight and allow every reasonable presumption to be made in favor of its correctness. Timm v. Timm, 195 Conn. 202, 206, 487 A.2d 191 (1985); Dudas v. Ward Baking Co., 104 Conn. 516, 518, 133 A. 591 (1926). "In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did." Timm v. Timm, supra, 195 Conn. 207, 487 A.2d 191; E.M. Loew's Enterprises, Inc. v. Surabian, 146 Conn. 608, 611, 153 A.2d 463 (1959); Sturdivant v. Yale-New Haven Hospital, 2 Conn.App. supra, 108, 476 A.2d 1074. "The court's conclusion, that the consequences of the plaintiff's failure fully and fairly to disclose, despite being given ample opportunity to do so [over...