Sullivan v. Yale-New Haven Hospital, Inc., (AC 19462)

• Court: Appellate Court of Connecticut
• Citation: 785 A.2d 588,64 Conn. App. 750
• Decision Date: 07 August 2001
• Docket Number: (AC 19462)
• Parties: DAWN SULLIVAN v. YALE-NEW HAVEN HOSPITAL, INC., ET AL.

64 Conn. App. 750
785 A.2d 588

DAWN SULLIVAN
v.
YALE-NEW HAVEN HOSPITAL, INC., ET AL

(AC 19462)

Appellate Court of Connecticut.

Argued January 23, 2001.

Officially released August 7, 2001.

Foti, Dranginis and Hennessy, Js.

64 Conn. App. 751

William T. Shea, for the appellant (substitute plaintiff)

Peter T. Fay, for the appellee (named defendant).

Augustus R. Southworth III, with whom, on the brief, was Leslie R. Gold, for the appellees (defendant Arthur Levy et al.).

Opinion

HENNESSY, J.

The substitute plaintiff, Patricia Sullivan,¹ appeals from the judgment rendered following

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the trial court's granting of the motions for summary judgment filed by the defendants, Yale-New Haven Hospital, Inc., Arthur Levy, and Medical Oncology and Hematology, P.C. (Medical Oncology). The substitute plaintiff claims that the trial court improperly (1) granted the defendants' motions to preclude expert testimony, (2) denied her motion to continue the case assigned for trial and her motions for a continuance of the summary judgment and trial proceedings, (3) granted the defendants' motions to preclude the substitute plaintiff from offering the testimony of expert witnesses at trial, (4) refused her request to file objections and affidavits in opposition to the defendants' supplemental motions for summary judgment, (5) heard the defendants' supplemental motions for summary judgment on January 25, 1999, (6) granted the defendants' supplemental motions for summary judgment, (7) found an abuse of process by the substitute plaintiffs counsel and (8) considered the deposition testimony of the substitute plaintiffs expert witness when granting the defendants' supplemental motions for summary judgment. We affirm the judgment of the trial court.²

The court had before it the following facts. On October 2, 1990, the plaintiff, Dawn Sullivan, was diagnosed

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as suffering from leukemia. She was treated by Levy and his associates at Medical Oncology and was released from Yale-New Haven Hospital, Inc. (hospital), on October 20, 1990, in complete remission. Following the advice of Levy, the plaintiff underwent additional chemotherapy at the hospital and suffered side effects therefrom. By early December, 1990, the plaintiff exhibited severe difficulties, including blindness, acute aphasia and neurological disabilities, that resulted in an inability to walk unassisted. The plaintiff continued treatment with Levy and his associates until November, 1992, when she became the patient of Jonathan Sporn, an oncologist at the University of Connecticut Health Center. The plaintiff died at the health center on January 1, 1994

The original complaint filed by the plaintiff on December 3, 1993, was a three count action that sounded in negligence and sought damages for loss of sight and neurological impairment as a result of the defendants' inappropriate administration of the chemotherapy agent, ARA-C, which was prescribed by Levy to treat the plaintiffs leukemia beginning in December, 1990. On September 19, 1995, an amended complaint was filed by the substitute plaintiff, Patricia Sullivan, administratrix of the estate of the plaintiff, which added a claim that the plaintiffs death was related to the defendants' treatment of her in December, 1990. The defendants filed supplemental motions for summary judgment³ on the ground that the substitute plaintiff could not pursue her claims in the absence of expert

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testimony that the defendants had deviated from the applicable standard of care. The defendants' supplemental motions for summary judgment were granted, and, thereafter, the substitute plaintiff filed this appeal

I

The substitute plaintiff first claims that the court improperly allowed a hearing on January 11, 1999, which concerned the defendants' motions to preclude expert testimony, to go forward without the presence of the substitute plaintiffs counsel. Specifically, the substitute plaintiff claims that the court abused its discretion by refusing to continue oral argument on the motions to the next day or to any other day available after the court was informed that the substitute plaintiffs counsel could not be present due to medical reasons. We disagree.

Our review of a trial court's denial of a continuance is governed by the abuse of discretion standard. Lawson v. Whitey's Frame Shop, 42 Conn. App. 599, 612, 682 A.2d 1016 (1996), rev'd in part on other grounds, 241 Conn. 678, 697 A.2d 1137 (1997). "In determining whether there has been an abuse of discretion, every reasonable presumption should be given in favor of the correctness of the court's ruling.... Reversal is required only where an abuse of discretion is manifest or where injustice appears to have been done." (Internal quotation marks omitted.) State v. Medley, 48 Conn. App. 662, 665-66, 711 A.2d 1191, cert. denied, 245 Conn. 915, 718 A.2d 19 (1998). "There is no hard and fast rule by which an abuse of discretion may be determined but, in general, for an exercise of discretion not to amount to an abuse, it must be legally sound and there must be an honest attempt by the court to do what is right and equitable under the circumstances of the law, without the dictates of whim or caprice." Id., 666; see

64 Conn. App. 755

also State v. Tubbs, 52 Conn. App. 636, 642, 727 A.2d 776 (1999).

In the present case, both sides agreed to go forward with the hearing on January 11, 1999, concerning the defendants' motions to preclude the substitute plaintiff from offering the testimony of expert witnesses. On that date, the court was informed by the court clerk and counsel for the defendants that the substitute plaintiffs counsel, who had returned from vacation the day before, could not appear at the hearing because of the dilation of his eyes earlier in the day. The court then reviewed the file and had his clerk inquire with the caseflow office to ascertain whether the substitute plaintiff had filed a motion for a continuance or an objection to the defendants' motions. Upon learning that no such motions had been filed and considering that a trial date was set for two weeks from that date, the court proceeded with the hearing and granted the defendants' motions.

Under these circumstances, the ruling of the court was legally sound because (1) the substitute plaintiffs counsel had agreed to the date of the hearing, (2) the substitute plaintiffs counsel had not followed the proper procedure for requesting a continuance and (3) the trial date was only two weeks away. The court, therefore, had good reason to move ahead with the scheduled hearing. Furthermore, the court, a short time later, vacated its decision, reheard argument with all counsel present and granted the defendants' motions. Accordingly, we conclude that the court did not abuse its discretion, and the substitute plaintiff did not suffer an injustice by the court's actions.

II

The substitute plaintiff next contends that the court abused its discretion when it denied her written motion dated January 21, 1999, for a continuance of the January

64 Conn. App. 756

25, 1999 trial assignment date. The substitute plaintiff also claims that the court abused its discretion when it denied her written motion dated January 25, 1999, for a continuance of the hearing on the defendants' supplemental motions for summary judgment to be held on that date. The court heard argument and denied both motions on January 25, 1999, the day the trial was to commence.

The substitute plaintiff specifically claims that the court's refusal to grant the continuance prevented her from taking depositions and from filing written objections and affidavits in opposition to the defendant's motions for summary judgment. The substitute plaintiff further argues that the defendants offered no reason why the court should deny her motion for a continuance and that she offered to reimburse any expense incurred by defense counsel as a result of their attending the January 25, 1999 hearing.

Our review of the denial of a motion for a continuance by the trial court is limited to the abuse of discretion standard. Lawson v. Whitey's Frame Shop, supra, 42 Conn. App. 612. Accordingly, we will make every reasonable presumption in favor of the correctness of the court's ruling and will reverse its judgment "only where an abuse of discretion is manifest or where injustice appears to have been done." (Internal quotation marks omitted.) State v. Medley, supra, 48 Conn. App. 665-66. "We are especially hesitant to find an abuse of discretion where the court has denied a motion for continuance made on the day of the trial." (Internal quotation marks omitted.) Lawson v. Whitey's Frame Shop, supra, 612.

Counsel for defendants Levy and Medical Oncology argued to the court that the matter had been pending since July or August, 1998, that there had been a number of continuances granted to the substitute plaintiff to

64 Conn. App. 757

obtain expert testimony and that, after many delays, the court had ruled that the substitute plaintiff was thereafter precluded from introducing expert testimony. Counsel also argued that on January 14, 1999, the court had set this matter down for a hearing on January 25, 1999, and that the substitute plaintiff had failed to file an opposition to the motions for summary judgment other than to request a continuance. Counsel for the defendant hospital argued that the supplemental motions for summary judgment had been pending since July and that the substitute plaintiffs reasons for seeking a continuance, namely, to obtain further discovery from the hospital and to depose Levy, were unavailing in light of the court's previous ruling that the substitute plaintiff was precluded from offering expert testimony.

In the present case, the court denied the motions for a continuance after reviewing the history of the case and finding that, for some period of time, the case had been set down for trial on January...