Wyszomierski v. Siracusa

Citation290 Conn. 225,963 A.2d 943
Decision Date27 January 2009
Docket NumberNo. 18154.,18154.
CourtSupreme Court of Connecticut
PartiesHenry WYSZOMIERSKI et al. v. Francis SIRACUSA et al.

Patrick Tomasiewicz, West Hartford, with whom, on the brief, was Jonathan A. Cantor, for the appellants (plaintiffs).

Thomas W. Boyce, New London, with whom, on the brief, was Jennifer Antognini-O'Neill, for the appellees (defendants).

ROGERS, C.J., and KATZ, VERTEFEUILLE, ZARELLA and SCHALLER, Js.

ROGERS, C.J.

In this medical malpractice dispute, the plaintiff, Mary Wyszomierski,1 appeals from the judgment of the trial court in favor of the defendants, Francis Siracusa and Surgical Associates of Windham, P.C.2 The primary issue in this appeal is whether the trial court abused its discretion in admitting certain of Siracusa's testimony regarding his treatment of the decedent, Henry Wyszomierski. The plaintiff also challenges the trial court's factual findings in its memorandum of decision. We conclude that the court did not abuse its discretion in admitting the challenged testimony and that the court's findings of fact were not clearly erroneous. Accordingly, we affirm the judgment of the trial court.

The following facts, as found by the trial court, are not in dispute. The decedent was born on July 5, 1932. He consumed alcohol regularly for many years, but abstained from alcohol completely after 1980. Despite his abstinence, he eventually developed early stage cirrhosis of the liver. In June, 1995, the decedent experienced an episode of chest pain and later was diagnosed with acute pancreatitis after tests revealed no evidence of cardiac problems.

On July 5, 2001, the decedent experienced another episode of pain in his chest and rib cage. The decedent's physician, Morton Glasser, diagnosed him with another episode of pancreatitis. Following his diagnosis, Glasser consulted with Siracusa, who is a board certified general surgeon and is licensed by the state of Connecticut.

On July 7, 2001, Siracusa examined the decedent at Windham Community Memorial Hospital (hospital), reviewed the decedent's medical records and obtained a medical history of the decedent from the plaintiff. Siracusa ordered a computed tomography (CT) scan and ultrasound to attempt to ascertain the cause of the decedent's recurring pancreatitis. Those tests revealed gallstones in the decedent's gallbladder, but no other abnormalities. Siracusa recommended a surgical procedure known as laparoscopic cholecystectomy to remove the decedent's gallbladder.3 He further recommended performing a cholangiogram4 during the cholecystectomy to disclose the presence of gallstones in the common bile duct.5 On July 20, 2001, Siracusa met with the plaintiff and the decedent to discuss his recommendations. Glasser thereafter examined the decedent and declared him medically fit to undergo the recommended procedures.

The cholecystectomy and cholangiogram were performed in the hospital on July 25, 2001. The cholecystectomy proceeded uneventfully. When the gallbladder was dissected from the liver, the newly exposed surface of the liver appeared raw as expected, but retained its integrity, showing no fragmentation or unusual bleeding. Siracusa further observed that the decedent's liver was flexible and had only micronodular signs of cirrhosis.

During the surgery, the cholangiogram revealed a gallstone in the decedent's common bile duct. Siracusa's repeated attempts to flush the gallstone out of the biliary duct system and into the duodenum met with frustration. Eventually, Siracusa determined that an alternate technique, endoscopic retrograde cholangiopancreatography (ERCP) with a papillotomy,6 would be more successful in eliminating the gallstone. Because Siracusa, as a general surgeon, was not trained to perform an ERCP, he recommended to the decedent that a gastroenterologist perform the procedure.

On July 30, 2001, a gastroenterologist performed the ERCP and papillotomy. During the procedure, he observed no gallstones or other abnormalities in the common bile duct and concluded that the gallstone detected by Siracusa had passed on its own.

For several days after the cholecystectomy and the ERCP, the decedent appeared to be recovering well. On August 5, 2001, however, his health began a steady decline. While at home, the decedent felt a sudden, severe abdominal pain on his right side, which radiated to his right shoulder. He subsequently was admitted to the intensive care unit and laboratory tests indicated an elevated white blood cell count and abnormal liver and kidney functioning.

Siracusa examined the decedent and recommended another laparoscopic procedure to identify the source of his symptoms. During that procedure, Siracusa detected some oozing from the crevice under the liver where the gallbladder had been removed and aspirated blood from all quadrants of the decedent's abdomen.

Following the procedure, the decedent's kidneys began to malfunction, and he eventually fell into a coma. By the middle of September, 2001, the decedent had resumed consciousness, but he continued to experience problems with his liver, kidneys and pancreas. Over the next several months, the decedent's cirrhosis became more advanced, and the disintegration of his liver cells caused fluid to build up in his abdomen, which required additional procedures. Liver and kidney complications persisted until November 6, 2003, when the decedent died from respiratory arrest caused by liver and kidney failure.

In an amended complaint dated August 10, 2004, the plaintiff alleged that the defendants negligently had caused the aforementioned decline in the decedent's health and his eventual death. Specifically, the plaintiff claimed that Siracusa failed to exercise reasonable care in his treatment of the decedent by, inter alia, recommending the cholecystectomy to the decedent without first referring the decedent to a gastroenterologist or performing an ERCP, failing to obtain informed consent from the decedent prior to performing the cholecystectomy, performing the cholecystectomy without a medical need to do so and without adequate training or qualifications and lacerating the decedent's liver during the cholecystectomy.7

After a trial to the court, the court rendered judgment in favor of the defendants. The plaintiff appealed to the Appellate Court, and we transferred the appeal to this court pursuant to Practice Book § 65-2. Additional facts will be set forth as necessary.

I

The plaintiff first claims that the trial court abused its discretion in admitting certain testimony by Siracusa after the court had granted her motion in limine to preclude the defendants from presenting expert testimony at trial.8 We disagree.

The following facts are pertinent to our discussion of the plaintiff's claim. On January 23, 2006, the plaintiff filed a motion in limine, pursuant to Practice Book § 13-4(4),9 to preclude the defendants from thereafter disclosing the names of expert witnesses who would offer expert testimony during the trial. She argued that any subsequent disclosure of expert witnesses and admission of expert testimony at trial would violate both the rules of practice and the court's scheduling order and would cause her undue prejudice. The court granted the plaintiff's motion in limine. The record does not provide any indication that the parties, at that time, addressed the scope of Siracusa's testimony at trial.

Trial began on April 4, 2006. Just before Siracusa testified as the only defense witness, the plaintiff, foreseeing the possibility that Siracusa might offer expert opinion during his testimony, orally requested the court to limit the scope of his testimony to matters "[within] the ken of the normal fact finder." Specifically, she sought to preclude Siracusa from providing explanations or justifications for his course of treatment of the decedent and any other matter beyond factual discussions or factual events. She argued that such testimony would fall within the scope of expert testimony and that it would prejudice her because, in light of the court's ruling on her motion in limine and as a matter of pretrial strategy, she did not inquire into those matters during Siracusa's deposition.

The court observed that Siracusa's reasons for pursuing or not pursuing a course of treatment with the decedent "have been put in issue ... because of the filing of a lawsuit, so there can't be ... a claim that what's going on here works as surprise on the plaintiff." The court then ruled that Siracusa would be allowed to testify about his conduct and reasons for his actions during the course of his treatment of the decedent but would not be permitted to give opinions as to whether his actions met the proper standard of care. The court reasoned that such historical testimony as to Siracusa's conduct and reasoning would provide a cohesive story. The court further explained that "[e]very treating physician, of course, is allowed to testify as to what he observed and what he did, and every observation necessarily involves both a blend of sensory perception and some opinion.... [B]ut I think that does not fall within the preclusion of expert testimony ... even though that is necessarily going to involve his background, training and experience. He's allowed to give opinions that are perceptions...." Siracusa subsequently testified consistent with the court's ruling.

"The court's decision on whether to impose the sanction of excluding [an] expert's testimony ... is not to be disturbed unless it abused its legal discretion, and [i]n determining this the unquestioned rule is that great weight is due to the action of the trial court and every reasonable presumption should be given in favor of its correctness.... In determining whether there has been an abuse of discretion, the ultimate issue is whether the court could reasonably conclude as it did." (Internal quotation marks omitted.) Cavallaro v. Hospital of...

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