Shegog v. Zabrecky, No. 12675

• Court: Appellate Court of Connecticut
• Writing for the Court: Before DUPONT; DUPONT
• Citation: 654 A.2d 771,36 Conn.App. 737
• Parties: George SHEGOG, Executor (Estate of Donald Pereyra), et al. v. George ZABRECKY et al.
• Docket Number: No. 12675
• Decision Date: 03 April 1995

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654 A.2d 771 36 Conn.App. 737 George SHEGOG, Executor (Estate of Donald Pereyra), et al.
v.
George ZABRECKY et al. No. 12675. Appellate Court of Connecticut. Argued Nov. 2, 1994.
Decided Feb. 7, 1995.
Certification Denied April 3, 1995.

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Brendan T. Flynn, with whom, on the brief, was Robert L. Hirtle, Hartford, for appellants-appellees (defendants).

Norman J. Voog, with whom, on the brief, was Christopher J. Molyneaux, Ridgefield, for appellees-appellants (plaintiffs).

Before DUPONT, C.J., and FOTI and SCHALLER, JJ.

[36 Conn.App. 738] DUPONT, Chief Judge.

The defendants, George Zabrecky and his chiropractic practice, the Life Extension Center, appeal from a judgment rendered in accordance with jury verdicts for the plaintiffs, George Shegog, executor of Donald Pereyra's estate, and Barbara Pereyra, the decedent's widow. The plaintiffs sought damages for wrongful death caused by the negligence of the defendant, and for loss of consortium, respectively.

The defendants claim that (1) the plaintiffs did not present sufficient expert testimony to prove that the defendants' actions were the proximate cause of the death of Donald Pereyra and (2) the jury's award for loss of consortium was excessive. The plaintiffs have filed a cross appeal, claiming that the trial court should have allowed the plaintiffs to prove proximate cause with medical reports of the decedent's treating physicians,

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as well as through expert testimony. We affirm the plaintiffs' judgment in the defendants' appeal and dismiss the plaintiffs' cross appeal.

Barbara Pereyra and Donald Pereyra were married in January, 1987. Donald Pereyra first sought treatment for back pain from Zabrecky at the Life Extension Center in May, 1987. At that time, Zabrecky ordered X rays of Pereyra's spine. The X rays revealed that Pereyra was suffering from a fractured vertebra caused by a malignant tumor. Zabrecky immediately referred Pereyra to a surgeon in New York who, in June and July of 1987, performed two operations to stabilize Pereyra's spine and remove the tumor. Following the surgery, Pereyra began a course of radiation treatments from radiologist Craig Usas. A CAT scan revealed that the cancer had spread to Pereyra's lungs. Usas and other physicians consulted by Pereyra recommended that chemotherapy be considered once the radiation therapy had concluded, and advised Pereyra that given the form of cancer from which he [36 Conn.App. 739] suffered, his chances of survival with chemotherapy were 50 percent or better.

During the summer of 1987, Pereyra continued to consult with a number of physicians regarding the treatment of his cancer. He also continued to see Zabrecky throughout the summer and fall of 1987. Pereyra and Zabrecky discussed treatment options, and Zabrecky recommended that Pereyra forgo the chemotherapy. ¹ Zabrecky recommended that Pereyra instead follow a course of treatment with two protein compounds manufactured in Germany, neytumorin and neythymin. The primary ingredient in both substances is animal protein. Neither drug is approved by the federal Food and Drug Administration (FDA), and chiropractors are prohibited by law from prescribing drugs. Nonetheless, Zabrecky prepared a treatment schedule for Pereyra that progressed from oral administration of neytumorin to injections of neythymin. Zabrecky provided Pereyra with an initial supply of the protein compounds along with instructions as to how to inject them, and arranged for further supplies of the compounds to be delivered directly to Pereyra's home. Pereyra took the neytumorin orally and then by injection until November, 1987, when he switched to injections of neythymin. ²

The cancer continued to spread throughout Pereyra's ribs, spine, right femur, clavicle, and sacrum. In early November, after additional cancer was discovered, radiation[36 Conn.App. 740] treatments were given daily. Pereyra's health began to deteriorate visibly at approximately the same time. The radiation treatments themselves left his skin red and tender. Pereyra's condition worsened between Thanksgiving and December 8, 1987, when Usas admitted him to the hospital because of jaundice-like symptoms. His physicians determined that the cancer had not yet spread to his liver and that something else was causing the symptoms. Pereyra then admitted to his physicians for the first time, after considerable pressure from his wife, that he had been injecting himself with the German protein compounds provided by Zabrecky. Barbara Pereyra testified that Zabrecky had specifically instructed Pereyra not to tell his treating physicians that he was injecting the protein compounds.

Pereyra died on December 17, 1987, approximately six weeks after he had begun the injections of neythymin and approximately five months after he first took neytumorin orally. An autopsy revealed that he died of necrosis of the liver caused by a toxic reaction to a foreign substance. Zabrecky had performed an initial liver enzyme study on Pereyra prior to giving him the protein compounds, but did not perform further tests after the protein compound treatment began. The only drugs or medicine used by Pereyra

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between July, 1987, and his death were the protein compounds prescribed by Zabrecky.

The plaintiffs filed a lawsuit against the defendants in March, 1990, in five counts, seeking damages for negligent treatment and care. They alleged a breach of the standard of care and treatment owed to Pereyra. The negligence alleged was the administering of drugs when statutorily prohibited, withholding of that fact from the treating physicians, the failure to diligently "follow" the decedent's chemical blood work, advising the decedent to use drugs that had "expired," administering therapy not approved by the FDA, engaging [36 Conn.App. 741] in the unlicensed practice of medicine, and inducing the decedent to forgo appropriate therapy.

At trial, the plaintiffs were allowed to introduce into evidence reports from three of Pereyra's treating physicians, Robert Schneider, an oncologist, and Lawrence Alpert and Hans Popper, pathologists. The transcripts supplied by the parties do not include either the offers into evidence of these reports or the trial court's charge to the jury as to how to consider these reports. We presume that they were offered and admitted under General Statutes § 52-174(b). ³ The reports indicate that the treating physicians were all of the opinion that Pereyra died of liver failure and not cancer. None of the doctors examined the protein compounds to see if they were capable of causing injury to the liver. There was no analysis of Pereyra's liver tissue to see what substances had caused the fatal damage, but the liver was analyzed for evidence of cancerous tissue, and none was found.

The plaintiffs also presented the report of an expert witness, Zalmen Arlin, who had been disclosed by the plaintiffs as an expert witness but had died prior to trial. His preliminary report was admitted into evidence, over the defendants' objection, ⁴ pursuant to General[36 Conn.App. 742] Statutes § 52-174(a). ⁵ Arlin had reviewed Pereyra's medical records and autopsy reports and agreed with the diagnosis of liver failure. He related in his report that he had no information on the German protein compounds and was in the process of securing a translation of a German textbook that discussed them. He concluded that he assumed the German drugs to be toxic unless the contrary were shown to be true.

The defendants moved to dismiss at the close of the plaintiffs' case for their failure to

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establish a prima facie case of proximate cause. The motion was denied, and the defendants proceeded with their case.

The defendants called as their expert witness James Bidanset, a forensic toxicologist. Bidanset was the only witness who had analyzed the German drugs, ⁶ and he testified that they were incapable of causing Pereyra's [36 Conn.App. 743] liver failure. The tests he performed were to determine whether the protein compounds were poisonous to the human body. The test results showed that they were not. Bidanset noted that the autopsy report did not contain a toxicology report, although such tests are usually performed. He also testified that the expiration date of the compounds had passed at the time Pereyra injected them, which could mean that the drugs had become less potent, and that it was standard medical procedure to monitor liver enzymes when injecting a patient with protein substances. He also testified, however, that necrosis of the liver can be caused by the injection of foreign protein substances, and that the normal reaction time of the human liver to a foreign protein is, on average, six weeks.

The jury awarded the plaintiff executor $20,000 for economic damages, which included medical bills and related expenses and lost earnings, and $150,000 for noneconomic damages, which included permanent disability, pain and suffering, and loss of enjoyment of life's activities, and awarded the plaintiff wife economic damages of $500 and noneconomic damages of $150,000 for loss of consortium.

The defendants filed a motion to set aside the verdict, which was denied. ⁷ The defendants also filed a motion for remittitur, claiming that the noneconomic damages awarded for loss of consortium were excessive. That motion was also denied.

Our standard of review differs for the defendants' two claims. With regard to whether the plaintiff executor had proved proximate cause for his negligence [36 Conn.App. 744] action, the "trial court's refusal to set aside the verdict is entitled to great weight in our assessment of the claim that its decision is erroneous." Norrie v. Heil Co., 203 Conn. 594, 606, 525 A.2d 1332 (1987). "Our role in addressing this claim is extremely limited." Id. The defendants' claim that the amount of the verdict is excessive, however, raises a question of law and not of fact, and,...