Poulin v. Yasner

• Decision Date: 07 August 2001
• Docket Number: (AC 19671)
• Citation: 781 A.2d 422,64 Conn. App. 730
• Court: Connecticut Court of Appeals
• Parties: STEVEN R. POULIN v. ROBERT S. YASNER

64 Conn. App. 730

781 A.2d 422

STEVEN R. POULIN v. ROBERT S. YASNER

(AC 19671)

Appellate Court of Connecticut.

Argued December 6, 2000.

Officially released August 7, 2001.

Landau, Pellegrino and Dupont, Js.

Eddi Z. Zyko, for the appellant (plaintiff).

James J. Noonan, with whom, on the brief, was James Rosenblum, for the appellee (defendant).

Opinion

DUPONT, J.

The plaintiff, Steven R. Poulin, appeals from the judgment for the defendant, Robert S. Yasner, in this medical malpractice cause of action. The judgment followed the granting of a directed verdict in favor of the defendant and the denial of the plaintiffs motion to set aside the directed verdict. The issues are (1) whether the trial court improperly precluded the plaintiffs expert from testifying as to the proximate cause of the plaintiffs injuries and damages, and (2) whether without such expert testimony, the jury would have had enough other evidence to conclude that more probably than not the defendant's breach of the standard of care was the proximate cause of the plaintiffs injuries.¹ We reverse the judgment in part and affirm it in part.

The following facts and procedural history are necessary to our resolution of the plaintiff's appeal. The plaintiff initially sought medical treatment from the defendant in September, 1986. From that time until October, 1992, the defendant was the plaintiffs primary care physician. During those six years, the plaintiff saw the defendant numerous times for varying reasons.

On September 4, 1992, the plaintiff made an appointment with the defendant because he was experiencing abdominal pains and nausea. After seeing the defendant that day, a member of the defendant's staff transported the plaintiff from the defendant's office to Norwalk Hospital, where he remained for seven weeks. He was diagnosed as suffering from alcoholism and acute pancreatitis.

In August, 1994, the plaintiff commenced an action against the defendant² in two counts alleging (1) a failure to prevent, diagnose, treat or refer him for prevention, diagnosis and treatment of alcoholism and acute pancreatitis, and (2) a breach of a contractual obligation. At the close of the plaintiff's case, the court directed a verdict for the defendant pursuant to the defendant's motion, which the court thereafter refused to set aside. The court then rendered judgment for the defendant. This appeal followed.

I

The plaintiff sought damages in a two count complaint, one count in negligence and the other in contract. During oral argument to this court, we questioned whether the directed verdict for the defendant applied to count two of his complaint as well as to count one. Because a final judgment on both counts is a necessary predicate to our jurisdiction; see Practice Book §§ 61-1, 61-2, 61-3; we address that issue first.³

We requested the submission of simultaneous supplemental briefs by February 14, 2001,⁴ limited to the issue of whether there was a final judgment as to count two of the plaintiffs complaint, the alleged breach of contract cause of action.

The parties' arguments on the defendant's oral motion for a directed verdict, which the defendant made after the plaintiff had rested his case, related solely to count one. The court's oral rationale for the judgment as rendered does not explicitly mention either count. Our review of the transcript leads us to conclude, however, that the court intended to render judgment for the defendant on both counts. In the court's remarks to the jury explaining the direction of the verdict, the court stated that the case was both a breach of contract case and a medical negligence case.⁵

In his brief to this court, the plaintiff does not argue that the trial court improperly rendered judgment for the defendant as to the contract claim alleged in count two. Furthermore, we find nothing in the transcript showing that the plaintiff produced any evidence regarding the existence of a contract between him and the defendant concerning a specific result, i.e., guaranteeing that the plaintiff would not suffer from alcoholism or acute pancreatitis. Also, the plaintiff did not produce any evidence as to the care the defendant should have provided pursuant to that contract or as to the breach of any contract.

The trial court was aware of both counts, and we conclude that there was a final judgment as to both. We, therefore, affirm the judgment of the court for the defendant as to count two and conclude that the judgment as to count one is ripe for appellate review.

II

The plaintiff maintains that the court improperly precluded his expert from testifying as to the proximate cause of the plaintiffs injuries and damages. The plaintiffs compliant alleges that as a proximate result of the defendant's negligence he almost died, that he suffered a lengthy hospitalization and that he underwent multiple surgical procedures. He alleges that he had spent $200,000 to the date of the complaint for hospitalization and medical care, and that he had suffered and will continue to suffer physical and emotional pain, loss of earning capacity and impairment of the ability to carry on life's activities.

According to the plaintiff, the court's ruling to preclude the expert's testimony concerning proximate cause led to the improper granting of the defendant's motion for a directed verdict. The plaintiff also argued to the court that even without expert testimony as to proximate cause, the jury's general knowledge of alcoholism and the plaintiffs testimony were sufficient to allow the jury to consider whether the defendant's conduct proximately caused the plaintiffs injuries. The plaintiff claims, and the court recognized, that there are instances in which the failure to diagnose and to treat can result in a lost opportunity that can form the basis for proximate cause in a medical malpractice case. The defendant argued to the court that the plaintiff had not produced any evidence as to the proximate cause of the plaintiffs injuries, either by an expert witness or through any other evidence.

We begin with a brief discussion of the well settled legal principles applicable to this case. A court should direct a verdict if, on the evidence, the jury reasonably and legally could not have reached any other conclusion. Petyan v. Ellis, 200 Conn. 243, 244, 510 A.2d 1337 (1986). A directed verdict is justified if the plaintiff fails to present any evidence as to a necessary element of his or her cause of action. See Wallace v. St. Francis Hospital & Medical Center, 44 Conn. App. 257, 264, 688 A.2d 352 (1997).

It is also instructive to discuss the issue of proximate cause because it was the lack of evidence as to that element that was, according to the court, fatal to the plaintiffs case. "To prevail on a negligence claim, a plaintiff must establish that the defendant's conduct `legally caused' the injuries.... The first component of legal cause' is `causation in fact' ... [which] is the purest legal application of ... legal cause. The test for cause in fact is, simply, would the injury have occurred were it not for the actor's conduct." (Citations omitted; internal quotation marks omitted.) Doe v. Manheimer, 212 Conn. 748, 757, 563 A.2d 699 (1989), overruled in part on other grounds, Stewart v. Federated Dept. Stores, Inc., 234 Conn. 597, 608, 662 A.2d 753 (1995).

Legal cause also includes proximate cause. Our Supreme Court "has often stated that the `test' of proximate cause is whether the defendant's conduct is a `substantial factor' in producing the plaintiffs injury.... 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.... In applying this test, we look from the injury to the negligent act complained of for the necessary causal connection." (Citations omitted; internal quotation marks omitted.) Id., 759.

The following additional facts and procedural history are relevant to our resolution of the plaintiffs appeal. The plaintiff alleged in his complaint that he engaged the services of the defendant to be his primary treating physician in September, 1986, and that the defendant had a duty to ensure that the plaintiff received good quality medical care and to do him no harm. The complaint alleged that the defendant breached that duty in that the defendant was negligent and careless in twentyseven different ways, and that such negligence and carelessness proximately caused the plaintiffs injuries and damages. The complaint further alleges that the defendant failed to diagnose acute pancreatitis and the underlying alcoholism, and failed either to treat or to refer the plaintiff to others for such treatment.

At trial, the plaintiff offered expert testimony from Robert H. Resnick, a board certified physician in internal medicine, who testified that the prevention, treatment and diagnosis of acute pancreatitis and alcoholism or alcohol abuse are within the purview of the internal medical specialty. Both Resnick and the defendant specialize in internal medicine. The court accepted Resnick's qualifications as an expert in internal medicine and allowed him to testify about the standard of care owed to the plaintiff and about the breach by the defendant of that standard in thirteen discrete ways. The plaintiff then attempted to elicit from Resnick his opinion concerning the proximate cause of the plaintiffs injuries.⁶ The defendant objected to the question on several grounds, namely, that it was a leading question, that its form was improper and that it lacked a foundation. The court sustained the objection as to the lack of a foundation.

The plaintiff then attempted to establish a foundation and asked Resnick to identify the standard of care. Resnick did so and then also testified about, in his opinion, the defendant's thirteen deviations from that...