Puro v. Henry

• Decision Date: 07 September 1982
• Citation: 449 A.2d 176,188 Conn. 301
• Court: Connecticut Supreme Court
• Parties: Victoria PURO v. Philip HENRY et al.

Page 176

449 A.2d 176

188 Conn. 301

Victoria PURO v. Philip HENRY et al.

Supreme Court of Connecticut.

Argued May 4, 1982.

Decided Sept. 7, 1982.

Edward M. Sheehy, Bridgeport, for appellant (named defendant).

Gregory C. Willis, Bridgeport, for appellant (defendant Griffin Hospital).

Michael P. Koskoff, Bridgeport, with whom was Brenda C. Morrissey, Bridgeport, for appellee (plaintiff).

Before SPEZIALE, C. J., and PARSKEY, ARMENTANO, SHEA and SPONZO, JJ.

PARSKEY, Associate Justice.

This action was brought by the plaintiff Victoria Puro to recover damages against Philip Henry, a surgeon, and Griffin Hospital for alleged medical malpractice to which the defendants interposed the special defense of the statute of limitations. ¹ In her amended reply the plaintiff alleged that the defendants had fraudulently concealed the existence of a surgical needle in the plaintiff. At the time of trial the complaint sounded in one count each of negligence and breach of contract against Henry and in one count of negligence against Griffin Hospital. ² After a trial to the jury the court directed a verdict for the defendant Henry on the breach of contract count. The jury was unable to reach a verdict against either defendant. Thereafter, the court denied the defendant's motions for a directed verdict and ordered a new trial.

The defendants' assignments of error are predicated on the denial by the trial court of their motions for judgment notwithstanding the jury's failure to return a verdict. The defendants claim (1) that the plaintiff failed to produce expert medical testimony that either defendant committed malpractice and (2) that the plaintiff's cause of action was barred by the statute of limitations because the plaintiff failed to produce expert medical evidence that either defendant fraudulently concealed the existence of a surgical needle in the plaintiff.

We find both claims to be without merit.

"Directed verdicts are not favored and should be granted only when the jury could not reasonably and legally reach any other conclusion.... We must review the action of the trial court in the light of the evidence most favorable to the plaintiff." (Citations omitted.) Console v. Nickou, 156 Conn. 268, 270, 240 A.2d 895 (1968).

The jury could reasonably and logically have found the following facts: In 1963, the plaintiff, Victoria Puro, consulted the defendant Philip Henry, a general surgeon, about abdominal problems she was suffering. Henry sent the plaintiff for x-rays to the Radiology Group which was located down the hall from Henry's office in Derby. Henry diagnosed gall bladder disease and recommended surgery. Thereafter, on September 9, 1963, Henry performed a cholecystectomy and appendectomy on the plaintiff at the defendant Griffin Hospital located in Derby (hereinafter the hospital).

Following her discharge the plaintiff remained in Henry's care. Recurring hernias in the area of the original operation necessitated surgery in June, 1964 and September, 1965. These operations were performed by Henry at the hospital. Thereafter, on May 18, 1967, the plaintiff was readmitted to the hospital by Henry for the surgical repair of another ventral hernia. In this procedure Henry inserted nylon mesh to reinforce the wound utilizing catgut, wire, and nylon sutures. Henry conceded that there was no surgical needle in the plaintiff's abdomen prior to this operation.

Subsequently, the plaintiff began to experience severe pain in her abdomen, particularly if she bent, stretched or twisted. The plaintiff informed Henry of these complaints during her visits. In October, 1969, the plaintiff, complaining of back and abdominal pain, consulted Henry who dispatched her for x-rays to the same Radiology Group she had previously visited. The x-ray report prepared by Carl Pantaleo, president and chairman of the Radiology Group and long time friend of Henry disclosed only the presence of "radiopaque sutures in the [plaintiff's] upper abdomen." On the plaintiff's return, Henry informed her that she had an enlarged womb but did not mention any foreign substances in her abdomen. From 1969 to October, 1972 the plaintiff, continually complaining of abdominal pain, remained in Henry's care. No further surgery was performed during this period.

Thereafter, the plaintiff terminated her relationship with Henry and sought out Edward Harvey, a general practitioner in Seymour, for treatment of her abdominal troubles. Harvey sent the plaintiff to the same Radiology Group that Henry had utilized. The x-ray report dated October 16, 1972 and prepared by Pantaleo disclosed the presence a "[l]inear, radiopaque needle-like foreign body" measuring three centimeters in length in the plaintiff's abdominal wall. To confirm this, Harvey performed an x-ray at his own office and concluded that there was a broken surgical needle in the plaintiff. The plaintiff was subsequently informed of this fact.

In January, 1973, Stewart Petrie, a gynecologist practicing in Derby tried unsuccessfully to remove the needle in the course of a hysterectomy. Ultimately, Joseph Dineen, Chief of Surgery at Griffin Hospital surgically removed from the plaintiff three fragments of what appeared to be a stainless steel needle.

The present action was commenced on May 10, 1974.

The defendants in their assignment of error claim that there was an absence of any expert testimony from which the jury could find negligence on the part of the defendants for leaving a needle in the plaintiff. It is well settled that the plaintiff cannot prevail unless there was positive evidence of an expert nature from which the jury could reasonably conclude that the defendant was negligent, except where there is manifest such gross want of care or skill as to afford, of itself, an almost conclusive inference of negligence that the testimony of an expert is not necessary. Console v. Nickou, supra, 156 Conn. at 273-74, 240 A.2d 895; Snyder v. Pantaleo, 143 Conn. 290, 292, 122 A.2d 21 (1956); Ardoline v. Keegan, 140 Conn. 552, 556-57, 102 A.2d 352 (1954); Slimak v. Foster, 106 Conn. 366, 370, 138 A. 153 (1927).

At trial, the plaintiff adduced testimony from five doctors, including Henry, as expert witnesses. Henry, when called by the plaintiff, testified that it was possible for a surgeon using reasonable care to leave a needle in a patient if there were extenuating circumstances. Henry, however, conceded that there were no extenuating circumstances present during the May, 1967 operation. Dineen and Petrie also testified that absent complications or an emergency, a surgeon would not leave a needle in a patient's abdomen. Pantaleo testified that needles are not normally left in a patient's abdomen. Charles Verstandig, a surgeon and radiologist from New Haven, was also called as an expert witness by the plaintiff. He testified that it was not in accordance with medical practice to leave a foreign body in the patient without informing him of the fact. Henry also testified that if he were working with a needle in the exposed area of the body and the needle came out of the needle holder with which he worked and remained in the body where he was working it is most likely that he would be aware of it.

The plaintiff further adduced expert testimony regarding the hospital's procedure for accounting for surgical needles used during the May, 1967 operation. Frederick Nicewicz, the acting administrator of the hospital, testified that in 1967 the hospital did not have any rules or regulations governing the counting of needles relative to surgical procedures. He indicated that the counting of needles was left to the operating room personnel. The plaintiff also called Mary Rose, the hospital operating room supervisor. Rose was the circulating nurse employed by the hospital during the plaintiff's 1967 operation. She stated that in 1967 the hospital did not have a written policy regarding the counting of surgical needles but instead utilized a "one for one" procedure whereby the scrub nurse was not to give the surgeon a new needle until she had received one back. She testified that it was the scrub nurse's responsibility to actually watch each specific needle while it was being used and while it was in the operating room and to notify the surgeon if she did not receive a needle back. Rose further indicated that neither she nor the scrub nurse was aware of a missing needle in the 1967 operation.

Additionally, Henry testified that it was the scrub nurse's responsibility to count needles in the operating room and that he would lay the needle and needle holder down on a towel below the surgical incision and that it was the scrub nurse's duty to retrieve it and make some disposition of it.

Verstandig testified, however, that the practice in the New Haven county area was to count all needles used in abdominal surgery before the abdomen was closed.

We are unable to agree with the defendants that the plaintiff's evidence was so devoid of expert testimony as to warrant a directed verdict. Considering the evidence in a light most favorable to the plaintiff, the jury could reasonably and logically have concluded that Henry had failed to exercise the due care and skill required under the circumstances. The jury could have also found the Griffin Hospital negligent in that it failed to require needle counts or in that it failed properly to execute its "one for one" procedure in the operating room. The defendants themselves, as qualified experts, provided evidence which was clearly sufficient to support a verdict. Console v. Nickou, supra, 156 Conn. at 274, 240 A.2d 895; Allen v. Giuliano, 144 Conn. 573, 575, 135 A.2d 904 (1957); Snyder v. Pantaleo, supra, 143 Conn. at 294, 122 A.2d 21; Slimak v. Foster, supra, 106 Conn. at 370-71, 138 A. 153.

Furthermore, the evidence, while circumstantial in nature, with the inferences drawn most favorably to the plaintiff, would reasonably and logically support a finding by the jury...