Raybeck v. Danbury Orthopedic Associates, PC, (AC 20737)

• Court: Appellate Court of Connecticut
• Writing for the Court: FLYNN, J.
• Citation: 72 Conn. App. 359,805 A.2d 130
• Decision Date: 17 September 2002
• Docket Number: (AC 20737)
• Parties: LINDA RAYBECK v. DANBURY ORTHOPEDIC ASSOCIATES, P.C., ET AL.

72 Conn. App. 359
805 A.2d 130

LINDA RAYBECK
v.
DANBURY ORTHOPEDIC ASSOCIATES, P.C., ET AL

(AC 20737)

Appellate Court of Connecticut

Argued January 8, 2002

Officially released September 17, 2002

Dranginis, Flynn and Daly, Js.¹

72 Conn. App. 360

Edward F. Hennessey, for the appellant (plaintiff)

Augustus R. Southworth III, with whom, on the brief, was Isabella S. Murray, for the appellee (named defendant).

72 Conn. App. 361

Opinion

FLYNN, J.

In this medical malpractice action, the plaintiff, Linda Raybeck, appeals from the judgment of the trial court, rendered after a jury trial, in favor of the named defendant, Danbury Orthopedic Associates, P.C.² On appeal, the plaintiff claims that she is entitled to a new trial because the court (1) improperly overruled her objection to a portion of the defendant's closing argument and refused to give a curative instruction to the jury regarding that portion of the argument, (2) improperly instructed the jury that the plaintiff was required to prove through expert testimony that the defendant had a duty to inform the plaintiff of the risks and benefits of the surgical procedure that was performed on her injured wrist and any alternatives to that procedure, (3) improperly admitted certain evidence

72 Conn. App. 362

and excluded other evidence, (4) improperly instructed the jury with respect to medical negligence and informed consent in that the instruction was inadequate and misleading, (5) unduly limited the jury charge to only a portion of the plaintiff's claims of failure to treat and failure to inform and (6) improperly directed and refused to set aside a verdict in favor of the defendant on portions of the plaintiff's claims of failure to treat and failure to inform. We agree with and find dispositive the plaintiff's first and second claims and grant the relief requested. We discuss the plaintiff's remaining claims only insofar as those claims are likely to arise on retrial

The following facts and procedural history are relevant to our resolution of the plaintiff's appeal. The plaintiff is employed as a title searcher, who, in the performance of her duties, is required to lift heavy books of land records. On February 8, 1994, she fell on an icy sidewalk and injured her left wrist. She sought treatment for that injury at the Danbury Hospital emergency room that same day. While at the emergency room, the plaintiff was treated by Dr. Thomas M. Malloy, an orthopedic surgeon who was associated with the defendant corporation. Dr. Malloy informed the plaintiff that she had sustained a Colles' fracture of the left wrist. He further informed her that the appropriate treatment for her injury was a closed reduction and casting and that the only other alternative was to not treat the wrist at all. Thereafter, the plaintiff consented to, and Dr. Malloy performed, a closed reduction and casting, which involves manually realigning the bones and applying a cast while the patient is under general anesthesia.

The plaintiff went to the defendant's facility for a series of follow up visits during the months of February, March and April, 1994. During those visits, the plaintiff was seen and treated by both Dr. Malloy and Dr. Roger

72 Conn. App. 363

LaGratta, another physician associated with the defendant corporation. Both physicians noted that although the fracture was healing, the plaintiff's wrist had begun to develop a tilt as it healed. That tilt became more pronounced over time with one of the bones in her wrist protruding outward, which made the wrist appear deformed. The plaintiff also complained of extreme pain throughout the course of her treatment, for which Dr. Malloy and Dr. LaGratta prescribed physical therapy. After the plaintiff's April 14, 1994 visit at the defendant's facility, she sought a second opinion regarding the healing of her wrist from her family physician, Dr. Oscar Lascano. Dr. Lascano recommended that the plaintiff see a specialist. Sometime thereafter, on Dr. Lascano's recommendation, the plaintiff, who was still experiencing a great deal of pain in her wrist, sought an orthopedic evaluation at Yale University School of Medicine with Dr. Scott Wolfe, a surgeon. Dr. Wolfe performed surgery on the plaintiff's wrist both to repair the deformity in her wrist, evidenced by the tilt that had developed, and to avoid further degeneration. Subsequently, the plaintiff instituted this action in a one count complaint alleging (1) lack of informed consent and (2) medical malpractice.³

Portions of the deposition testimony of the plaintiff's expert witness, Dr. Elias Sedlin, a physician, were

72 Conn. App. 364

admitted into evidence at trial. Through his deposition, Dr. Sedlin testified both as to informed consent and the standard of care required of an orthopedist treating a fracture similar to the one sustained by the plaintiff. He testified that the plaintiff should have been informed that casting carried some risk in that in some cases, the bones may slip out of alignment and, as a result, the fracture would heal improperly. He also testified that there were alternative treatments that the defendant could have employed and that the plaintiff should have been informed of those alternatives. He opined that one such alternative was to employ percutaneous pins to hold the fractured wrist bones in place. In fact, Dr. Sedlin testified that the standard of care for the type of fracture sustained by the plaintiff required that the wrist be pinned, rather than cast as had been done by the defendant, and that the defendant's failure to employ pinning rather than casting constituted a deviation from the standard of care. The defendant's medical expert, Dr. Derek Woodbury, testified at trial that the standard of care mandated casting rather than pinning and that he, like Dr. Malloy, believed that the only alternative to casting was to simply let the fracture heal on its own

After the conclusion of the evidence from both parties, the court instructed the jury regarding informed consent and medical malpractice. Thereafter, the jury returned a general verdict in favor of the defendant. The plaintiff filed a motion to set aside the verdict and for a new trial. The court denied the plaintiff's motion and rendered judgment in favor of the defendant. This appeal followed. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the court improperly overruled her objection to a portion of the defendant's

72 Conn. App. 365

closing argument and refused to give a curative instruction to the jury regarding that portion of the argument. Specifically, she argues that a portion of defense counsel's argument was improper because it invited the jury to draw an adverse inference from the fact that the plaintiff had failed to produce Dr. Sedlin's partner, Dr. Michael Houseman, as a witness at trial. She further argues that although the missing witness rule set forth in Secondino v. New Haven Gas Co., 147 Conn. 672, 674-75, 165 A.2d 598 (1960), has been abrogated in civil cases by General Statutes § 52-216c, the applicability of § 52-216c is limited to closing arguments in situations where counsel first has given a prior fairness notice. She contends that because no notice was provided here, the argument was improper and the court should have given a curative instruction. The defendant counters with the argument that § 52-216c is inapplicable because counsel did not explicitly argue to the jury that it should draw an adverse inference from the fact that the plaintiff failed to produce Dr. Houseman as a witness and, therefore, there was no need for the court to give a curative instruction. The defendant further argues that even if § 52-216c is applicable, the language of the statute does not mandate that prior notice be given before counsel invites the jury to draw an adverse inference from a party's failure to produce a witness at trial. We agree with the plaintiff.

As a preliminary matter, we set forth the applicable standard of review. "The trial court is invested with a large discretion with regard to the arguments of counsel and while its action is subject to review and control, we can interfere only in those cases where the discretion was clearly exceeded or abused to the manifest injury of some party." (Internal quotation marks omitted.) Marchell v. Whelchel, 66 Conn. App. 574, 586, 785 A.2d 253 (2001). Nonetheless, where we must interpret a statute regulating final arguments, our review of the

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meaning of that particular statute is plenary. Statewide Grievance Committee v. Connor, 260 Conn. 435, 439, 797 A.2d 1081 (2002).

We begin our resolution of the plaintiff's first claim with a brief overview of the Secondino rule. "In Secondino v. New Haven Gas Co., [supra, 147 Conn. 674-75], our Supreme Court held that the failure to produce a witness for trial who is available and whom a party would naturally be expected to call, warrants an adverse inference against that party. This is commonly referred to as the Secondino rule or missing witness rule. The jury charge explaining the rule is known as the Secondino instruction or missing witness instruction." State v. Bailey, 56 Conn. App. 760, 761 n.1, 746 A.2d 194 (2000). The reasoning behind the missing witness rule was that "[t]he failure of a party to produce a witness who is within his power to produce and who would naturally have been produced by him, permits the inference that the evidence of the witness would be unfavorable to the party's cause.... To take advantage of [the] rule permitting an adverse inference, [however] the party claiming the benefit [of the rule was required to] show that he [was] entitled to it." (Citation omitted; internal quotation marks omitted.) Close, Jensen & Miller, P.C. v. Lomangino, 51 Conn. App. 576, 584, 722 A.2d 1225, cert. denied, 248 Conn. 905, 731 A.2d 306 (1999). "A party [was required to] seek and obtain an advance ruling from the trial...