Weaver v. McKnight, 31969.

• Citation: 40 A.3d 786,134 Conn.App. 652
• Decision Date: 10 April 2012
• Docket Number: No. 31969.,31969.
• Court: Appellate Court of Connecticut
• Parties: Dorothy WEAVER, Coadministrator (Estate of Demarius Douglas Weaver), et al. v. Craig McKNIGHT et al.

134 Conn.App. 652

40 A.3d 786

Dorothy WEAVER, Coadministrator (Estate of Demarius Douglas Weaver), et al.

v.Craig McKNIGHT et al.

No. 31969.

Appellate Court of Connecticut.

Argued Oct. 13, 2011.Decided April 10, 2012.

D. Lincoln Woodard, with whom, on the brief, was Karolina A. Dowd, Hartford, for the appellants (plaintiffs).

Thomas W. Boyce, with whom was Jennifer Antognini–O'Neill, for the appellees (defendant Henry Amdur et al.).

DiPENTIMA, C.J., and BEAR and LAVERY, Js.

DiPENTIMA, C.J.

The facts underlying this case involve one of life's most heartrending and painful events, the stillbirth of an infant. After suffering this terrible loss, the plaintiffs, Dorothy Weaver and Fred Weaver, as coadministrators of the estate of Demarius Douglas Weaver (decedent), and Dorothy Weaver, individually, filed a medical malpractice action against the defendants Henry Amdur, a physician specializing in obstetrics and gynecology, and Thames Gynecologic Group, P.C.¹ The dispositive issue is whether the trial court properly precluded two of the plaintiffs' expert witnesses from testifying as to the cause of the stillbirth. We affirm the judgment of the trial court.²

The following facts and procedural history are relevant to the resolution of the plaintiffs' appeal. In 2006, Nancy C. Hess, an advanced practice registered nurse,³ commenced employment with the Thames Gynecologic Group, P.C. At this time, she began treating Dorothy Weaver (Weaver), who was thirty-four weeks pregnant. Pursuant to the terms of her employment, Hess assumed responsibility for the primary management of patients classified as “uncomplicated....” For those patients designated “high risk” or “obstetric complex,” Hess was to consult and collaborate with an obstetric physician who was ultimately responsible for their care. Weaver's due date was May 21, 2006.

On May 11, 2006, Hess saw Weaver for her weekly visit. Hess detected a fetal heart rate and fetal movement. Afterward, an ultrasound examination was performed, which allowed for several measurements of the fetus ⁴ to be taken. On Friday, May 12, 2006, Hess reviewed the results from the ultrasound and contacted Amdur. The measurements from the ultrasound indicated a large fetus, more than eleven pounds, plus or minus approximately two pounds. Hess conveyed this to Amdur, as well as that this was Weaver's fourth child, that she was thirty-five years old and that one of her previous babies was nine pounds, eight ounces at delivery. She also informed Amdur that Weaver had tested positive for sugar in her urine during her checkups on April 24, May 4 and May 11, 2006. Additionally, Hess told Amdur that measurements of the fetus were larger than expected for his gestational age. Amdur determined that the fetus was macrosomic ⁵ and stated that on Monday May, 15, 2006, Weaver should be offered a scheduled cesarean section to deliver the fetus. Amdur did not order any other tests.

After Hess conveyed Amdur's suggested plan to Weaver, she agreed to undergo a cesarean section. The procedure was scheduled on May 15, 2006, for the following day. On May 16, 2006, an admitting nurse and Craig McKnight, a physician specializing in obstetrics and gynecology, were unable to locate a fetal heart rate using an ultrasound examination. After confirming the result with a radiologist, McKnight informed Weaver that the fetus had died and that due to the size of the fetus, a cesarean section would be necessary to remove the fetus from Weaver.

On April 26, 2007, the plaintiffs commenced this action against the defendants. The operative complaint, dated January 12, 2010, contains six counts. The four counts pleaded on behalf of the decedent sound in wrongful death and loss of chance; ⁶ two other counts set forth a medical malpractice action on behalf of Weaver. The crux of the plaintiffs' complaint is that Amdur failed to care for Weaver's pregnancy given the macrosomic nature of the fetus, and, as a result, the pregnancy ended in the intrauterine demise of the fetus.

Prior to the start of the trial, the defendants filed a motion in limine to preclude the testimony of two of the plaintiffs' disclosed ⁷ expert witnesses, Frank J. Bottiglieri and Russell D. Jelsema, both of whom are physicians board certified in obstetrics and gynecology. Both witnesses were expected to opine that Weaver's uncontrolled gestational diabetes ⁸ was the cause of the stillbirth. The defendants argued that neither Bottiglieri nor Jelsema possessed the requisite level of expertise to opine on the cause of death of the intrauterine fetus. After hearing testimony from the witnesses, the court precluded both of them from testifying as to the cause of death.

The defendants subsequently moved for a directed verdict. Specifically, they argued that the plaintiffs had failed to produce the requisite medical evidence that connected the alleged breach of the standard of care by Amdur to the death of the fetus. In granting the defendants' motion, the court determined that “[t]here [was] no evidence from which the jury could properly determine that there is a causal connection between the alleged deviation and the death of the fetus in utero.” Thereafter, the court rendered judgment, and this appeal followed.

Before addressing the specifics of the plaintiffs' appeal, we set forth certain legal principles. The elements of a medical malpractice claim require the plaintiffs to prove by a preponderance of the evidence “(1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury.... Generally, the plaintiff must present expert testimony in support of a medical malpractice claim because the requirements for proper medical diagnosis and treatment are not within the common knowledge of laypersons.” (Internal quotation marks omitted.) Hayes v. Camel, 283 Conn. 475, 484, 927 A.2d 880 (2007); see also Cavallaro v. Hospital of Saint Raphael, 92 Conn.App. 59, 74–75, 882 A.2d 1254, cert. denied, 276 Conn. 926, 888 A.2d 93 (2005); Amsden v. Fischer, 62 Conn.App. 323, 331, 771 A.2d 233 (2001) (expert testimony generally required to establish both standard of care and causation); M. Taylor & D. Krisch, Encyclopedia of Connecticut Causes of Action (2009) p. 41.

“All medical malpractice claims, whether involving acts or inactions of a defendant physician, require that a defendant physician's conduct proximately cause the plaintiff's injuries. The question is whether the conduct of the defendant was a substantial factor in causing the plaintiff's injury.” Poulin v. Yasner, 64 Conn.App. 730, 738, 781 A.2d 422, cert. denied, 258 Conn. 911, 782 A.2d 1245 (2001); see also Macchietto v. Keggi, 103 Conn.App. 769, 775, 930 A.2d 817, cert. denied, 284 Conn. 934, 935 A.2d 151 (2007). “This causal connection must rest upon more than surmise or conjecture.... A trier is not concerned with possibilities but with reasonable probabilities.... The causal relation between an injury and its later physical effects may be established by the direct opinion of a physician, by his deduction by the process of eliminating causes other than the traumatic agency, or by his opinion based upon a hypothetical question.” (Internal quotation marks omitted.) Peatie v. Wal–Mart Stores, Inc., 112 Conn.App. 8, 21, 961 A.2d 1016 (2009); see also Boone v. William W. Backus Hospital, 272 Conn. 551, 571, 864 A.2d 1 (2005) (plaintiff required to establish that defendant's negligent conduct was cause in fact and proximate cause of decedent's injuries and death); Grody v. Tulin, 170 Conn. 443, 448, 365 A.2d 1076 (1976) (causal relation between defendant's wrongful conduct and plaintiff's injuries is fundamental element without which a plaintiff has no case); Shegog v. Zabrecky, 36 Conn.App. 737, 745, 654 A.2d 771 (“[n]o matter how negligent a party may have been, if his negligent act bears no relation to the injury, it is not actionable”), cert. denied, 232 Conn. 922, 656 A.2d 670 (1995).

We begin with a detailed recitation of the facts underlying the court's decision to prevent Bottiglieri and Jelsema from opining on the cause of death. Pursuant to Practice Book (2006) § 13–4(4), the plaintiffs disclosed Hess and McKnight as expert witnesses. In an amended disclosure dated June 24, 2008, the plaintiffs identified Bottiglieri and Jelsema as experts. The amended disclosure stated that both Bottiglieri and Jelsema were expected to testify as to the standard of care, Amdur's violations of the standard of care, the consequences of the violations and damages. The pleadings, medical records, deposition transcripts, autopsy results and subsequent tests constituted the bases for these opinions. Additionally, the opinions of both Bottiglieri and Jelsema were based upon their “knowledge, training, education and experience as ... practicing physician[s] board certified in the fields of obstetrics and gynecology.” ⁹

Following the disclosure, the parties deposed Jelsema on September 3, 2008, and Bottiglieri on October 29, 2008. The defendants filed a motion in limine dated January 11, 2009, to preclude the expert testimony of Bottiglieri and Jelsema. In their memorandum of law, the defendants argued that neither Bottiglieri nor Jelsema were qualified to testify as to the cause of fetal death in this case.¹⁰ At a motions hearing on January 27, 2010, the parties suggested that the court defer ruling on the defendants' motion in limine until the two physicians testified. The court agreed to follow the course suggested by counsel.¹¹

On February 3, 2010, the plaintiffs called Jelsema as a witness. He testified that he practiced as “an obstetrician with [a] subspecialty in maternal fetal medicine, complicated pregnancies,” in Michigan. After medical school, he completed a four year residency in obstetrics and gynecology, and then completed a two year fellowship where he received additional training in the...