Shelnitz v. Greenberg

• Decision Date: 27 May 1986
• Citation: Shelnitz v. Greenberg, 200 Conn. 58, 509 A.2d 1023 (Conn. 1986)
• Court: Connecticut Supreme Court
• Parties: Hyman L. SHELNITZ et al. v. Alvin D. GREENBERG et al.

Page 1023

509 A.2d 1023

200 Conn. 58

Hyman L. SHELNITZ et al. v.Alvin D. GREENBERG et al.

Supreme Court of Connecticut.

Argued Jan. 9, 1986.

Decided May 27, 1986.

William F. Gallagher, New Haven, for appellants(defendants).

Alfred S. Julien, New York City, pro hac vice, with whom were Frank J. Mongillo, Jr., New Haven, and David Jaroslawicz, New York City, for appellees(plaintiffs).

Before PETERS, C.J., and HEALEY, SHEA, MENT and ARNOLD W. ARONSON, JJ.

ARTHUR H. HEALEY, Associate Justice.

This is a medical malpractice action brought in 1977 by Charlotte Shelnitz for personal injuries and by her husband, Hyman Shelnitz, for loss of consortium, arising out of an ambulatory myelogram performed by the defendant neurosurgeon, Alvin Greenberg, who at the time of the procedure was a member of the defendantNeurosurgical Associates of New Haven, P.C.

The plaintiff's ¹ complaint alleged negligence and a failure by the defendant² to obtain informed consent.After a trial to a jury, a verdict was returned in favor of the plaintiff in the amount of $750,000 for Charlotte Shelnitz and $50,000 for Hyman Shelnitz.The defendant's motions to set aside the verdict and for judgment notwithstanding the verdict were denied and the court rendered judgment for the plaintiff.This appeal followed.

The defendant raises six issues on appeal: (1) whether the evidence was sufficient to support the jury verdict on the issue of causation; (2) whether the court erred in failing to give a Secondino charge; (3) whether the plaintiff produced expert testimony sufficient to support her claim of lack of informed consent; (4) whether several of the court's evidentiary rulings resulted in harmful error; (5) whether the court erred in refusing to grant the defendant's motions for a mistrial; and (6) whether the verdict was excessive.We find no error.

I

On the advice of her internist, the fifty-four year old plaintiff consulted the defendant on November 22, 1974, with respect to a back problem.After an examination, the defendant recommended conservative treatment.The plaintiff was not "making much progress" and called the defendant on January 3, 1975, at which time she was told that he would perform an ambulatory myelogram at the Neuro-Diagnostic Center in New Haven on January 9, 1975.The plaintiff testified that during this telephone conversation the defendant did not tell her about "any of the risks" nor did he inform her that the myelogram could be performed in a hospital.

The testimony at trial established that a myelogram is an invasive diagnostic procedure whereby a contrast material, in this case Pantopaque, is injected into the patient's spinal column and then fluoroscoped and highlighted by x-ray to determine whether there is any pathology of the lumbar vertebrae and other portions of the patient's anatomy.See also 2 Schmidt, Attorneys' Dictionary of Medicine, M-173;Stedman's Medical Dictionary (24th Ed.)p. 917.The spinal canal consists of three membranes: the dura, the arachnoid in the middle, and the pia matter.It is a closed, pressurized system in which cerebrospinal fluid (CSF) circulates, cleansing and nourishing the spinal canal and the brain and the other elements of the central nervous system.

A physician, in order to perform a lumbar myelogram, uses a needle to puncture the dura and arachnoid membranes in order to inject the contrast material into the closed system.As a result of the puncture, CSF leaks out of the closed system of membranes into the tissue around the puncture of the dura until the puncture heals and reseals itself.Every patient loses a small amount of CSF in the course of the procedure.The leak of CSF lowers the pressure in the closed system, the central nervous system, and causes irritation to the brain, nerves and other elements of the central nervous system.The CSF leak and the attendant drop in pressure are thought to cause postmyelogram headaches.

When the plaintiff arrived at the defendant's office at the Neuro-Diagnostic Center on January 9, 1975, she was told by a radiology technician that she could possibly experience postmyelogram headaches of up to six weeks duration.The defendant performed the myelogram on the plaintiff and afterwards placed her on a stretcher "for about ten minutes or so."She was then allowed to dress and was driven home by her husband.There were no facilities at the center for a patient to lie down for a period of time exceeding ten minutes because of the times scheduled for various patients.

A card given to patients, including the plaintiff, by the defendant's office, contained directions to "stay in bed, for no less than eight hours following myelogram.Patient may get up to use bathroom only; meals should be served in bed.Patient should force fluids...."(Emphasis in original.)The purpose of these procedures is to decrease the pressure on the puncture site and to decrease the frequency and severity of spinal headache.

The day after the myelogram, the plaintiff began to experience headaches and telephoned the defendant's office.Several of the plaintiff's calls to the defendant to inform him of her headaches were not returned.The defendant finally spoke with the plaintiff about her complaint and he prescribed Valium.

On February 5, 1975, the defendant admitted the plaintiff to Yale-New Haven Hospital with a diagnosis of spinal headache as a result of continued CSF leak, and, after bed rest, she was discharged on February 13, 1975.A few days later, the plaintiff again contacted the defendant and complained of headaches.He asked her to come to Yale-New Haven Hospital as an outpatient on February 22, 1975, to undergo a procedure, called a saline bolus injection, to be performed by an anesthesiologist in order to seal the presumed CSF leak.The procedure was considered unsuccessful and no writing evidencing this procedure could be found in either the defendant's or Yale-New Haven's records.

The plaintiff sought treatment for her condition in the Boston area, and, from 1975 through 1982, she was admitted nine times to two hospitals for diagnostic tests and treatments.She became a patient of Richard Tyler, a physician at Peter Bent Brigham Hospital (PBBH).She underwent two venous blood patch procedures in 1975 at PBBH in an attempt to close what was considered to be a leak.In March, 1978, a myelogram was performed at PBBH.A radioisotope dye injection in March, 1978, at PBBH was done and an evaluation by its department of nuclear medicine stated that there was "no evidence of CSF leakage."In May, 1979, a cervical myelogram was performed.The plaintiff was again admitted to PBBH in November, 1979.Another myelogram was performed, and an evaluation by PBBH's department of radiology indicated that there was a leak of the Pantopaque used in the myelogram from the subarachnoid space into the epidural space, although the "location of this leak [was] not ascertained."The discharge diagnosis was "chronic post-myelogram headache."In January, 1980, the plaintiff was again admitted to PBBH and a laminectomy was performed by Keasley Welch, a neurosurgeon, in an attempt to discover the cause of the plaintiff's headaches.The operative note indicated that there was no "obvious CSF leak" but that a dimple was found in the area where the defendant had performed the original myelogram.The discharge diagnosis stated that there was a "persistent cerebral spinal leak."In September, 1982, the plaintiff was admitted to PBBH and another myelogram, using metrizamide, was performed and there was "some extravasation of dye from the lumbar area."The discharge summary of October 18, 1982, stated that because a spinal tap had revealed a normal CSF pressure reading it "impl[ied] that the headaches are not low pressure headaches which had been the theory...."An October, 1982 report by Tyler to Morton Bender, one of the plaintiff's treating physicians in 1982, stated that dye escaping into the lumbar area indicated that the plaintiff's positional headache has "many characteristics of a spinal fluid leak."

In November, 1982, the Journal of Neurosurgery contained an article written by Doctors Harrington, Tyler and Welch of Boston on the plaintiff's condition and subsequent hospitalizations, although her identity was not disclosed in the article.The defendant testified that he had read the article and recognized the patient as the plaintiff.

The plaintiff offered expert testimony from Herbert Rabiner, a radiologist, and Lawrence Kaplan, a neurologist and psychiatrist.Both doctors practice in New York state but testified that they were familiar with the standards of practice for myelograms in Connecticut in 1975.³Neither of the plaintiff's experts had examined her prior to trial.Rabiner testified that "there is a direct causal relationship between the early precipitous ambulation of this patient and the prolonged severe post-myelographic or post-spinal headaches which she suffered as a result of this early ambulation."He further testified that instructing the patient to ambulate ten minutes following the myelogram "was a deviation from accepted medical care at the time."

Kaplan also testified that it was a departure from acceptable practice to allow a patient "to be up and around" only ten minutes after a lumbar myelogram and that this violation was the cause of the plaintiff's headaches.He testified that the fact that the patient had not been properly confined to bed rest after the procedure caused a delay in the healing of the puncture wound and that this delay is "going to cause a persistent spinal fluid leak....[W]hen this persistent spinal fluid leak occurs, as it did in this case, it is related to the fact that healing was not properly permitted."

The defendant offered expert medical testimony from Franklin Robinson, a neurosurgeon associated with the defendant, William Scoville, a neurosurgeon, James Collias, a neurosurgeon, William...