Sargis v. Donahue, AC 32992

CourtAppellate Court of Connecticut
Writing for the CourtROBINSON
Docket NumberAC 32992
Decision Date14 May 2013


AC 32992


Argued December 4, 2012
Officially released May 14, 2013

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Robinson, Bear and Sullivan, Js.

(Appeal from Superior Court, judicial district of New
Britain, Tanzer, J.)

Keith Yagaloff, for the appellant (substitute plaintiff).

S. Peter Sachner, for the appellees (defendants).

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ROBINSON, J. In this medical malpractice action, the substitute plaintiff, Robert S. Sargis, Sr., executor for the estate of Cynthia Sargis (decedent),1 appeals from the judgment of the trial court granting the motion for judgment notwithstanding the verdict filed by the defendants, Terrence Donahue, a physician, and New Britain Surgical Group, Inc. On appeal, the plaintiff claims that the court erred when it (1) applied an improper standard of proof for causation and (2) granted the defendants' motion.2 We reverse the judgment of the trial court.

The record reveals the following undisputed facts and procedural history. On September 23, 2002, Donahue performed laparoscopic repair of the decedent's umbilical and incisional hernia. The procedure involved the surgical implantation of a mesh on the decedent's abdominal wall. Following the surgery, the decedent developed complications. Five days after the surgery, on Saturday, September 28, 2002, she went to the New Britain General Hospital emergency room complaining of redness and bruising around the incision site, and potential bronchitis. At the emergency room, the decedent received an intravenous dose of an antibiotic and an oral antibiotic, Zithromax, in a five tablet dosing package called a Z-pak. The decedent was administered two tablets at the hospital during her emergency room visit, and thereafter she took one each day thereafter until the pack was finished, on the following Tuesday. The consultation report provided to Donahue's medical partner from the emergency room noted that there were signs of bruising but no inflammation around the incision site.

Two days after the emergency room visit, on Monday, September 30, 2002, Donahue examined the decedent at his office. He noted symptoms that indicated possible cellulitis on the skin over the area where the mesh had been implanted, but did not perform any microbiological testing, prescribe any additional antibiotics or treat the decedent's abdominal redness. Rather, he directed the decedent to finish the Z-pak that she had received at the emergency room.

Three weeks later, on October 21, 2002, Donahue again examined the decedent, diagnosed her with cellulitis and, for the first time, prescribed two antibiotics for her. Approximately five weeks after her surgery, however, on November 1, 2002, the decedent was admitted to the hospital for an exploratory laparotomy and surgical removal of the mesh located on the abdominal wall, which was infected. Additionally, she was diagnosed with edema and cellulitis of the skin around the mesh, and treated with intravenous and oral antibiotics. The decedent was discharged from the hospital on November 3, 2002. At various times from November 3

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to November 29, 2002, the decedent consulted with Donahue for treatment of her abdomen. Following the mesh removal surgery, she had a disfigurement of her abdomen, experienced great pain and required additional surgery. The decedent then brought this medical malpractice action against the defendants, alleging that they failed to observe, evaluate and treat her postoperative infection timely and adequately.

During the trial, the defendants moved for a directed verdict at the conclusion of the plaintiff's case-in-chief and again after the defendants rested their case, but prior to closing argument. The court reserved decision each time. At the conclusion of the five day trial, the jury rendered a general verdict in favor of the plaintiff in the amount of $149,334, which the court accepted. The defendants subsequently filed a motion for judgment notwithstanding the verdict. Consistent with their position when they had moved for a directed verdict after the plaintiff's case-in-chief and after they had rested their case, the defendants maintained that the plaintiff had failed to offer, by way of requisite expert testimony, sufficient evidence regarding proximate cause for the decedent's injuries. They asserted that the plaintiff's relevant expert witness, Gabor Kovacs, a doctor board certified in general surgery, never testified with a reasonable degree of medical probability that Donahue's breach of the standard of care was a substantial factor in causing the decedent's injuries. The plaintiff filed an objection and the matter was heard on November 17, 2009. After oral argument, the court ordered the parties to submit supplemental briefing on the issue of what evidence is required for causation in a medical malpractice action where the negligence of the physician is based on omissions rather than commissions of acts. Both parties submitted supplemental memoranda of law.

The court issued its memorandum of decision, granting the defendants' motion, and rendered judgment in favor of the defendants. The court's memorandum of decision began by setting forth the standard of proof for ordinary medical malpractice and the standard of proof for causation of an ordinary medical malpractice action. It then went on to note: ''Connecticut recognizes a cause of action for lost chance, and the cases provide a helpful analytic framework for the claims in this case— that, as a result of the defendants' failure to diagnose and treat a postoperative infection, the infection was not eradicated and it spread, thereby causing injury to the plaintiff's decedent. The plaintiff and the defendants have employed such cases in presenting their arguments.'' The court continued, quoting the standard of proof for lost chance actions as well as the legal standard for causation for a lost chance cause of action. After citing case law for the proposition that the opinions expressed by an expert must be more than speculation or conjecture, the court made its factual findings

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and legal conclusions. It found in relevant part that, "[h]aving reviewed the entire record . . . the plaintiff has failed to sustain his burden to prove by way of expert testimony that the defendants' actions, or in this case inactions, were a proximate cause of the decedent's injuries as a result of a loss of opportunity for successful treatment. Rather . . . Kovacs' testimony, while informative as to what should have been done by . . . Donahue and why, failed to show that if what should have been done had been done it probably would have affected the outcome for [the decedent] in this case. Based on the record before the court, the evidence presented is insufficient to remove from the realm of speculation the issues of whether the breach of the standard of care was the proximate cause of her injuries.'' After the court denied the plaintiff's motion to reconsider/reargue, this appeal followed.

The plaintiff filed a...

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