Opinion
No. CV-07-5003067S
June 28, 2011
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE VERDICT AND/OR FOR A NEW TRIAL AND/OR FOR SANCTIONS
On February 4, 2011, the jury in this case returned a verdict in favor of the defendants, Jeannine Giovanni, M.D., and Connecticut Surgeons, LLC. The plaintiffs Karen Bridenstine, Executrix of the estate of Gail Stalinski and John Stalinski (hereinafter Stalinski) filed a timely motion requesting the court to set aside the verdict and/or grant a new trial and/or for sanctions. Briefs were filed in support and in opposition to this motion by the parties. Subsequent to oral argument each counsel supplemented their briefs with emails directly to the court.
The court has had copies of the emails scanned into the court file.
Stalinski raises three grounds in support of the relief requested in this motion. First, Stalinski argues that the defense counsel intentionally poisoned the jury by unfairly discussing peer review in violation of the Connecticut General Statutes § 19a-17b. Second, Stalinski claims that the court erred in its charge to the jury which described the standard of care which was to be applied to the defendant, a board certified general surgeon. Stalinski claims that the applicable standard of care should have been identified as relating to a board certified general surgeon who performs gastric bypass surgery as opposed to a less particular standard of care referencing only a board certified general surgeon. Finally, Stalinski claims that the trial court improperly prevented her counsel from examining the defendant physician on expert disclosures filed by defense attorneys. The disclosures in question occurred when the defendant adopted Stalinski's expert witness disclosures in support of their apportionment claims against St. Francis Hospital and Medical Center, St. Francis Care, Inc., Dr. Carlos Barba, Dr. Laurie Loiacono and Woodland Physicians Associates, Inc. The court will review these claims of error in reverse order.
I CT Page 14409
In order to place these arguments in context the court will provide a brief overview of the claims in this case. Gail Stalinski was admitted to the St. Francis Hospital so that she could have elective gastric bypass surgery performed on her to aid her in her battle against obesity. The surgery was performed by Dr. Carlos Barba, a member of the defendant Connecticut General Surgeons, LLC. The surgery was performed on a Monday. During the course of her post-operative treatment by Dr. Barba, a number of tests were performed and treatment provided. Stalinski made claims that there was a deviation from the standard of care in the treatment provided by Dr. Barba.
On the fifth day postoperatively, Dr. Barba signed the care of the patient, Stalinski, over to the defendant, Dr. Jeannine Giovanni. Dr. Giovanni made rounds on Saturday morning and met briefly with the decedent, Gail Stalinski. During the course of that Saturday, she received several phone calls from the hospital resident, Dr. Scott Ellner, who was monitoring the care of Mrs. Stalinski. On Saturday afternoon, because of changes in her condition, Dr. Giovanni ordered that Stalinski be transferred to the intensive care unit. Dr. Laurie Loiacono was the attending physician for the intensive care unit on the afternoon and evening in question. While Ms. Stalinski was in the intensive care unit, she suffered a code, a condition in which she stopped breathing and her heart stopped pumping blood through her body. After a period of time, the physicians in the intensive care unit with the assistance of other medical personnel were able to get Mrs. Stalinski intubated and restart her heart. During the code it became clear that Stalinski had an infectious process in her abdomen.
Ellner was employed by the defendant Woodland Physician Associates, Inc. or St. Francis Hospital and Medical Center or St. Francis Care, Inc. For the purposes of this motion the precise employer is not essential.
Loiacono was employed by the defendant Woodland Physician Associates, Inc. or St. Francis Hospital and Medical Center or St. Francis Care, Inc. For the purposes of this motion the precise employer is not essential.
Dr. Giovanni was called back to the hospital. On Saturday evening and Sunday morning, Dr. Giovanni operated on Mrs. Stalinski and discovered and fixed the leak at the surgical bypass site. Stalinski ultimately recovered from the infection caused by the leak at the operative site, but never recovered from the anoxic brain injury that she had suffered when her brain was deprived of oxygen during the code. She survived for a period of approximately 17 months in a persistent vegetative state and then passed away.
Stalinski asserted medical negligence claims against the providers responsible for her care including St. Francis Hospital and Medical Center, St. Francis Care, Inc., Dr. Carlos Barba, Dr. Laurie Loiacono, Woodland Physicians Associates, Inc., Dr. Jeannine Giovanni and Connecticut Surgeons LLC. These claims were supported by experts who opined that the care provided deviated from the applicable standard of care. Prior to trial the plaintiff withdrew her complaint against St. Francis Hospital and Medical Center, St. Francis Care, Inc., Dr. Carlos Barba, Dr. Laurie Loiacono, and Woodland Physicians Associates, Inc.
Subsequent to these withdrawals, the remaining defendants Dr. Jeannine Giovanni and her employer, Connecticut Surgeons LLC filed a notice of their intent to seek an apportionment of responsibility with the former defendants.
At trial Stalinski acknowledged that she previously had claimed that St. Francis Hospital and Medical Center, St. Francis Care, Inc., Dr. Carlos Barba, Dr. Laurie Loiacono, and Woodland Physicians Associates, Inc. had been negligent in their care of her decedent, but that they were no longer parties to the case. Stalinski argued that Dr. Giovanni and her employer were also negligent and more responsible for the actual losses suffered by Mrs. Stalinski. In essence, Stalinski argued that had Dr. Giovanni reviewed the medical records during her Saturday morning examination she would have discovered multiple signs that Stalinski was suffering from an untreated infection. This would have caused her to take more vigorous action to determine whether or not there was a leak that was causing an untreated infection. The plaintiff argued that if corrective surgery had been undertaken, Ms. Stalinski would likely have survived the corrective surgery but would not have suffered a code and the subsequent anoxic brain injury. The plaintiff made additional arguments regarding communication between Giovanni and hospital staff during Saturday afternoon and what actions or steps Giovanni should have taken.
In response to plaintiffs' claims, Dr. Giovanni and Connecticut Surgeons, LLC made several arguments. First, she argued that at the time she saw Mrs. Stalinski on Saturday morning that the patient was doing well and there was no indication that she was in trouble, that when it was reported to her that the patient's condition had changed, she promptly ordered some new diagnostic tests to rule out a pulmonary embolism and to determine whether or not there was a leak, that she was entitled to rely upon the hospital staff to carry out these orders without the necessity of her coming into the hospital to examine Mrs. Stalinski on Saturday afternoon. Dr. Giovanni also argued that the staff misread certain of the reports of tests that she had ordered, including failing to identify a hernia in the operative site, that she was entitled to rely upon the physicians to accurately relay information to her. Finally, Dr. Giovanni argued that Dr. Barba did not provide her with accurate or sufficient information to give her notice that, in fact, Mrs. Stalinski was having a difficult recovery from this bypass surgery. With regard to the apportionment defendants, Giovanni adopted the plaintiff's former claims of negligence. Dr. Giovanni was critical of the care of these physicians. She testified that in her opinion there had been deviations from the standard of care. Defense counsel described the former defendants' care as "abysmal." Through the apportionment complaint she sought to place all blame for the adverse results suffered by Mrs. Stalinski at the feet of the former defendants.
II
A.
The court now proceeds to the specific arguments raised by the plaintiff. With regard to the issue with the jury charge, the court is satisfied the instruction that it provided to the jury comports with the General Statutes. There was no testimony indicating that there was any special certification for bariatric surgery, such as that which was performed on the decedent. Further, the complications in this case, an undiscovered leak at the operative site, are complications that can be encountered after any abdominal surgery performed by a general surgeon. For reasons previously stated during the exceptions to the charge, the court believes it properly identified the applicable standard of care to the jury.
II B.
The second ground asserted by Stalinski as supporting their request for a new trial and/or sanctions is that the court improperly prevented plaintiff's counsel from examining the defendant Giovanni on expert disclosures filed by her attorneys. In this case, prior to trial and jury selection Stalinski withdrew the claims against all defendants except Dr. Giovanni and her employer, Connecticut Surgeons, LLC. Stalinski had disclosed experts who were critical of the care provided by the former defendants and those experts articulated their opinions as to the deviations from the applicable standard of care that caused the decedent injuries and death. Once the plaintiff withdrew her claims against St. Francis Hospital and Medical Center, St. Francis Care, Inc., Dr. Carlos Barba, Dr. Laurie Loiacono and Woodland Physicians Associates, Inc. the defendants, Dr. Giovanni and Connecticut Surgeons, LLC, as is their right pursuant to Gen. Stat. 52-102b and 52-572h, made a claim to apportion responsibility for the damages and loss suffered by Stalinski as between them and the former defendants in this action (Pleading No. 265). In support of their apportionment claim, Dr. Giovanni and Connecticut Surgeons, LLC adopted certain expert disclosures that were previously filed on behalf of Stalinski in this action (Pleading No. 266). The court has reviewed the brief filed by Stalinski and by the defendants and it remains convinced that it properly ruled on objections that occurred during Stalinski's cross examination of the defendant physician. Stalinski's motion does not raise legal issues that were not raised during the trial.
II C.
Stalinski's third argument focuses on a sequence of questions posed by the defendant physician's counsel to her during the third week of this four week trial. Defense counsel for Dr. Giovanni asked during her direct examination on January 27, the following sequence of questions:
"Question: During the course of this entire litigation, from the time you were named a defendant up until today, has any one of the attorneys for Stalinski or attorneys for any of the apportionment defendants ever asked if your care of Gail Stalinski was reviewed and evaluated at St. Francis Hospital?
Answer: No.
Question: Was it?
Answer: Yes, it was.
Question: What was it —"
At this point, Stalinski's counsel objected and the court ordered that the jury be excused from the courtroom.
Excerpts of this questioning and the colloquy with counsel are annexed hereto as Appendix A.
In these questions the plaintiff claims defense counsel sought to put before the jury the fact that the Peer Review Committee or the Mortality and Morbidity Committee of the St. Francis Hospital had not suspended her privileges or sanctioned her in any way with regard to her care of Stalinski. Stalinski objected to this line of questioning. The court sustained Stalinski's objection. The court provided the following instruction once the jury returned to the courtroom.
"Ladies and gentlemen, I have sustained the objection to the last two questions. They were an improper line of inquiry or questioning based upon our General Statutes. I am ordering that those responses to the last two questions be stricken, and you may not refer to them or consider them in your deliberations. In this case, you, the members of the jury, will be the judge of what standard of care is applicable to Dr. Giovanni or the apportionment defendants, and you will be the judges of whether or not Dr. Giovanni or any of the apportionment defendants have deviated from the standard of care. And there will be other issues I will instruct you on, but at this point I wanted to highlight that."
Stalinski claims that this exchange caused her a manifest injury in that it deprived her of her constitutional right to a fair trial. She argues that defense counsel intentionally asked these questions without any basis for assuming that they would lead to admissible evidence. In essence she claims that purpose of the questions was to poison the jury.
The importance of these questions arises from the previously described posture of this medical malpractice case. At the time of trial Stalinski had withdrawn her case against St. Francis Hospital and Medical Center, St. Francis Care, Inc., Dr. Carlos Barba, Dr. Laurie Loiacono and Woodland Physicians Associates, Inc. but these former parties were brought back into the litigation as apportionment defendants. Thus the issue before the jury was not whether medical negligence had occurred but rather whether the defendant Giovanni had been negligent in addition to the negligence of the former defendants or whether the former defendants were solely responsible for the claimed injuries. The line of questions which are the subject of this motion would have put before the jury the fact that the St. Francis Hospital Peer Review Committee had reviewed the care provided by Dr. Giovanni and come to the conclusion that no sanctions were merited.
1.
Connecticut, by statute, protects from disclosure and introduction into evidence the proceedings and participants in the Peer Review process. Sec. 19a-17b. (Formerly Sec. 38-19a.) Peer review: Definitions; immunity; discovery permissible re proceedings.
(a) For the purposes of this section: . . .
(2) "Peer review" means the procedure for evaluation by health care professionals of the quality and efficiency of services ordered or performed by other health care professionals, including practice analysis, inpatient hospital and extended care facility utilization review, medical audit, ambulatory care review and claims review . . .
(d) The proceedings of a medical review committee conducting a peer review shall not be subject to discovery or introduction into evidence in any civil action for or against a health care provider arising out of the matters which are subject to evaluation and review by such committee, and no person who was in attendance at a meeting of such committee shall be permitted or required to testify in any such civil action as to the content of such proceedings; provided the provisions of this subsection shall not preclude (1) in any civil action, the use of any writing which was recorded independently of such proceedings; (2) in any civil action, the testimony of any person concerning the facts which formed the basis for the institution of such proceedings of which he had personal knowledge acquired independently of such proceedings; (3) in any health care provider proceedings concerning the termination or restriction of staff privileges, other than peer review, the use of data discussed or developed during peer review proceedings; or (4) in any civil action, disclosure of the fact that staff privileges were terminated or restricted, including the specific restriction imposed, if any." (Italics added.)
This statutory scheme is broad in its directive language. "The proceedings of a medical review committee conducting a peer review shall not be subject to discovery or introduction into evidence in any civil action for or against a health care provider." Sec. 19a-17b(d). The peer review process thus is shielded from our liberal pretrial discovery procedure and the proceedings may not be introduced into evidence in a civil trial. The language of the statute speaks of a broad prohibition rather than "privilege." Further the statutory language prohibits that the proceedings from being used as a sword or a shield by the healthcare provider. The statute provides that "no person . . . shall be permitted or required to testify in any such civil action as to the content of such proceedings." (Italics added.) Thus even if a party to the proceedings wished to testify they could not be permitted to do so. The statute does carve out four exceptions from this broad prohibition, but none of these exceptions authorize the healthcare provider to use the lack of sanctions as a basis for arguing either that the provider was not negligent or that the apportionment defendants agreed that the defendant was not negligent.
Consistent with this reading of the statutory language, in Holley v. Norwalk Hospital et al., 2006 Ct.Sup. 1220, 40 Conn. L. Rptr. 625 (Munro, J.), the court precluded the referencing of the proceeding of a peer review committee. In that case the defendant Hospital and the physician's LLC sought to dispute a negligent supervision and credentialing claim by offering evidence that the physician was not sanctioned in the peer review process. The court cogently analyzed the statutory language and the legislative history and concluded that the proffer of evidence was barred by the statutory language.
2.
The court will now review the sequence of questions in light of this statutory language. It was the defendant's position that she held a "privilege" and she could waive it. Defense counsel stated "that's why I prefaced the question: did she ever ask, did we ever assert the privilege. She was never asked. You did ask St. Francis; I am conceding that."
A review of the trial transcript indicated that counsel had carefully planned how to put this information before the jury in light of the statutory prescription. The preamble to the question focused on the fact that the defendant physician had not been asked by either Stalinski or the apportionment defendants if her care of the decedent "was reviewed and evaluated at St. Francis Hospital." In this manner the court believes the defendant sought to deflect the anticipated argument that if "privilege" had been claimed at deposition that a later waiver of the privilege would be ineffective. She sought, in the words of her counsel, to state that "there was a finding as to her that there was no finding of anything done inappropriately."
There is an additional difficulty with the defendant's position that she never asserted a privilege in pretrial discovery proceedings. Portions of the deposition of the defendant were included by Stalinski in support of this motion. As plaintiff's attorney was inquiring whether and when she had seen a particular study, her response referenced the peer review process. Her trial counsel interjected "You are not going to get into anything that was done at the MM (Mortality and Morbidity) . . . If the only place that you saw that and reviewed it was at the medical peer review do not go there. If you saw it someplace else then you may discuss it." (Deposition of Jeannine Giovanni, August 26, 2004, p. 513-54). Clearly, defense counsel was properly raising the statutory prohibition against discovery and directing his client not to answer questions posed by Stalinski's counsel. Defense counsel, may not have used the word "privilege" in his objection and instructions to his client but the effect was the same.
In their post-trial brief, p. 6 the defendant argues that "neither the peer review proceedings or the results thereof were going to be revealed or were not revealed." The court transcript supports the assertion that Dr. Giovanni did not get a chance to testify that her care had been reviewed and she had not been sanctioned. It does not support her claim that the proceedings of the peer review process were not going to be revealed. It is clear from the colloquy regarding the objection that the intent of the questioning was to allow Giovanni to reveal that there was a peer review process with regard to the care of the decedent and that the defendant physician's care had not been criticized.
The court notes that as this line of questioning was proceeding the court was very concerned about its direction. It was waiting for an objection from Stalinski. The moment plaintiff's counsel stood up and said "Your Honor" the court interrupted the questioning and excused the jury. Three people were speaking at once and court has a question his mind whether, despite the professionalism of the court reporter/stenographer, all of the dialogue and any response of the witness before the jury was excused, was captured.
The defendants have not provided any persuasive legal authority to support the argument that Dr. Giovanni was in a position to assert or waive a "privilege." Thus the court is presented with a deliberate and planned series of questions seeking to put before the jury information that the jury was statutorily barred from receiving. Although the full response to the series of questions was not provided, by this time in the trial the jury had heard the testimony of Stalinski's experts and all of the physicians who were residents or fellows at St. Francis and the attending physician for the ICU. Each of these witnesses was cross examined by the defendants about the quality of their care.
Further, prior to the posing of the peer review questions, the defendant Giovanni in her direct examination had described her care of Stalinski and directly and indirectly criticized the care of the former defendants. Thus, the stage had been set for the revelation that one of these former defendants had reviewed the care of Giovanni and had not sanctioned her.
The posing of this particular sequence of questions, was akin to a statement by counsel. The jury was aware that these individuals were apportionment defendants that the defendant Giovanni claimed were solely responsible for the injuries suffered by Stalinski. It is unlikely that the jury missed the import of the questions being posed by defense counsel to his client with regard to whether her care had been "reviewed and evaluated at St. Francis Hospital."
In addition to this line of questions, the plaintiff also points to another instance in this trial when defense counsel for Dr. Giovanni acted inappropriately. Plaintiff had filed a motion in limine seeking to prevent the defense from disclosing that plaintiff's expert, Dr. Magnuson, had previously testified, in a different case, that the care provided by Dr. Carlos Barba had deviated from the standard of care. The court had deferred ruling on the motion during the pretrial proceedings. Defense counsel for Giovanni raised this issue before the jury without alerting the court or opposing counsel that issue raised by the motion in limine was about to be addressed. This was a relatively minor issue that the court dealt with in chambers. No curative instruction was requested by the plaintiff.
Finally, the plaintiffs supported their argument for this motion with reference to several Rhode Island cases in which Dr. Giovanni's trial counsel had been criticized.
In Pearce v. South County Hospital, et al., State of Rhode Island and Providence Plantations, Superior Court, Providence, S.C., C.A. No. PC 065751 (Vogel, J., April 26, 2010), p. 9, the court stated that, "Clearly, the violations reveal a cavalier and arrogant attitude toward discovery obligations and court orders . . . The court concludes that defendant and her attorney acted deliberately to gain tactical advantage."
3.
The court will now consider whether this intentional conduct on the part of counsel has so prejudiced the ability of Stalinski to obtain a fair trial that it presents the court with the "exceptional" situation were a new trial will be ordered.
The appellate courts have provided the trial court with guidance on the standards to review a motion to set aside a verdict. "In passing on a motion to set aside a jury verdict, a trial court, like a juror considering the evidence, must draw upon its experience and knowledge of human nature, events and motives and evaluate the verdict in that context. Schroeder v. Triangulum Associates, 259 Conn. 325, 329-30, 789 A.2d 459 (2002). "When a verdict should be set aside because of improper remarks of counsel . . . the remedy is a new trial." Palkimas v. Lavine, 71 Conn.App. 537, 542, 803 A.2d 329, cert. denied, 262 Conn. 919, 812 A.2d 863 (2002). In seeking a new trial on this ground, a party's burden of proof is twofold. First, it must demonstrate that the challenged remarks in fact were improper. Then, the party must show that the improprieties during argument warrant a new trial. Id., 546. The remedy of a new trial is appropriate in circumstances in which the improper comments of counsel caused "manifest injury to a litigant . . ." (Internal quotation marks omitted.) Murray v. Taylor, 65 Conn.App. 300, 306, 782 A.2d 702, cert. denied, 258 Conn. 928, 783 A.2d 1029 (2001). "A verdict should be set aside if there has been manifest injury to a litigant, and it is singularly the trial court's function to assess when such injury has been done since it is only that court which can appraise the atmosphere prevailing in the courtroom. Yeske v. Avon Old Farms School, Inc., 1 Conn.App. 195, 2005 (1984).
As the previous discussion demonstrates, the court is of the opinion that the first prong of the test has been met. Defense counsel in a series of questions sought to put before the jury evidence that is barred by statute. Even though the ultimate answer was not provided by the witness, the clear inference that counsel was asking the jury to consider was that the apportionment defendant has absolved the defendant Giovanni of responsibility. The jury was well aware of the apportionment claims being made. Further, this line of question occurred during the presentation of the defense in this case when counsel was arguably attempting to elicit testimony that would be favorable to his client's position. The line of questioning implicitly made the jury aware of the peer review process. As such it opened up a Pandora's box. It was a series of questions somewhat akin to those types of questions where counsel need not care about the answer or if an objection is sustained the purpose of the question can be achieved without a response. Eg. When did you stop beating your wife? Once the jury knew that Dr. Giovanni's care was evaluated at St. Francis Hospital, it was not necessary for the defendant to tell the jury that she had not been sanctioned by the peer review process conducted at the St. Francis Hospital. Why would the defendant and her counsel have brought up this event unless they considered it favorable to the positions she was asserting?
A core responsibility of a judge presiding over a jury trial is to ensure that each of the parties before it receives a fair trial. This responsibility is carried out in the particulars by a court's ruling on motions, on objections to questions or exhibits and when instructing the jury on the law that is applicable to the claims or defenses asserted. The attorneys for the parties are obligated to zealously advocate for their clients position and to marshal admissible evidence in support of that cause. Disagreements on the appropriateness of a line of questions may require the court to issue a limiting instruction when these predictable disagreements arise in front of the jury. As neither the court or the parties are privy to the jury's deliberations, the impact and the curative force of these instructions is unknowable.
The court is of the opinion that the Stalinskis have met the second prong of this test, in that they have demonstrated a manifest injury to their right to have a fair trial. The court is mindful that the granting of a new trial is an "exceptional remedy."
In reaching this conclusion the court is aware that it gave a strong curative instruction to the jury immediately upon their return to the court room and that Stalinski had not moved for a mistrial. Even if Stalinski had moved for a mistrial at that time the court would not have granted the motion but rather would have taken it under advisement. The parties were in the third week of a four-week trial. The parties had invested an additional period of weeks in selecting a jury. The jurors had invested a substantial amount of their time. The jury had already heard the testimony of approximately eight physicians or medical professionals. In this case there were sufficient practical reasons to proceed to the conclusion of the trial.
With regard to the curative instruction, the court presumes, as it must, that the jurors followed its instructions. Sometimes, however, curative instructions may be insufficient. In Yeske v. Avon Old Farms School, Inc., supra, p. 204. In this case, the questions posed by the defense counsel invited the jury to consider what they should not. The questions went to the heart of the defense claims, that they did not want to be tarred with medical negligence of the apportionment defendants. While that is a proper argument, it cannot be supported by evidence of what occurred in the peer review process. The posing of this series of questions caused a manifest injury to Stalinskis' ability to have a fair trial.
The court has also considered the relative strengths and weaknesses of Stalinski's claims and the defendants defenses in reaching the decision to grant this motion. If the court was of the opinion that no reasonable jury could have reached a verdict in favor of the plaintiff, then it would not be granting this motion. In this case, however, each party, in the court's opinion provided evidence that would support a verdict in their favor. In such a vigorously prosecuted and defended case the court cannot rule out that the improper line of questions unduly influenced the jury. This line of questioning regarding peer review related directly to this hotly contested and pivotal issue of liability between the defendants and the apportionment defendants.
Thus, after careful consideration, the court finds that in this exceptional case, the plaintiffs' motion for a new trial must be granted. The court is mindful of the substantial expense involved in the trial of a medical malpractice case such as this one. Here, defense counsel for Dr. Giovanni, intentionally posed a series of questions to the defendant that improperly brought to the jury's attention the peer review process. It was a clever attempt but an improper one. Even with the curative instruction, the court is not satisfied that Stalinski's right to a fair trial was preserved. This situation and result could have been avoided by the defendants, but they have brought these consequences upon themselves. The defendant may have a credible defense but the process has been poisoned.
The court orders that upon retrial, defense counsel, William White of White, Carlin and Kelly, P.C., who appeared pro hac vice, must be accompanied by counsel who sponsored his admission to the bar for this case.
Cosgrove, J.
APPENDIX A JANUARY 27, 2011 GAIL C. SCHOR (Examination of Dr. Giovanni)
MR. WHITE CONTINUING:
Q. During the course of this entire litigation, from the time you were named a defendant up until today, has any one of the attorneys for the plaintiff or attorneys for any of the apportionment defendants ever asked you if your care of Gail Stalinski was reviewed and evaluated at St. Francis Hospital?
A. No.
Q. Was it?
A. Yes, it was.
Q. What was it —
ATTY. RECK: Your Honor —
THE COURT: Hold on. Let me excuse the jury.
(Jury Excused)
Mr. Reck?
ATTY. RECK: Peer review — I couldn't get it. I couldn't get this information. There would be no way I could examine the people after she said it.
It is clearly not allowed. Once again, he throws this stuff out which he knows shouldn't be brought up.
ATTY. WHITE: Peer review, the privilege rests with who owns the privilege, and the privilege rested with St. Francis Hospital — I am not disputing that — and with the doctors who are there.
Now, she is not revealing and has no intention of revealing anything about any co-defendant — excuse me, apportionment defendant, only about the fact that there was a finding as to her that there was no finding of anything done inappropriately.
So the peer review privilege rested with St. Francis. He asked St. Francis people if there was peer review —
ATTY. RECK: Let's look at the transcripts and let's get the decision. I can't get it. I mean, you're going into an area that I could never cross-examine.
ATTY. WHITE: There no such thing as transcripts for those.
ATTY. RECK: Let's call everybody in then to court.
ATTY. WHITE: And it's up to them whether they wish to waive their privilege.
ATTY. RECK: Whose privilege is it?
THE COURT: What's the citation for the privilege?
ATTY. RECK: 19a-17b.
THE COURT: 19a-17b.
ATTY. RECK: Your Honor, I tried to ask about peer review several times and they cut me off. I could never learn anything about what happened.
ATTY. WHITE: I'm not disagreeing that you asked. That's why I prefaced the question; did she ever ask, did we ever assert the privilege. She was never asked. You did ask St. Francis; I'm conceding that.
ATTY. RECK: Your Honor, that's basically saying, okay, we've had a trial and now she is found not guilty; now we've got this trial. Plus it wasn't disclosed. I mean, it opens up a whole can of worms.
ATTY. WHITE: What needs to be disclosed?
ATTY. RECK: There was no discovery on it.
THE COURT: Counsel, Counsel, hold on.
This says the review, proceedings of a medical review committee conducting a peer review, shall not be subject to discovery or introduced into evidence in any civil action for or against a healthcare provider.
Do you claim that you have an exception under that statute that's applicable in this state that would allow you to examine this witness in light of that statute?
ATTY. WHITE: My understanding is the privilege as to her rested with her. And if the Court's interpretation is no, then fine, then I will not go any further.
My understanding was that the privilege rested with her and I conceded the St. Francis people were asked, but she was never asked.
THE COURT: This says, shall not preclude in any civil action the use of any writing which was reported independently of such proceeding, and in any civil action the testimony of a person concerning the facts which form the basis for the institution of such proceedings of which he had personal knowledge and acquired independent of such proceedings, and any proceedings concerning the termination or restriction of staff privileges other than peer review.
Now even with the exception, it says in a civil action any use of any writing — that's not what we're talking about here. In any civil action the testimony of any person concerning the facts which form the basis for the institution of the proceedings of which he had personal knowledge. So clearly, the Doctor can testify about the facts of her care.
Three, any healthcare provider proceedings regarding the termination or restriction of privileges, which did not occur.
Four, in any civil action disclosure of the fact that staff privileges were terminated or restricted.
Tell me where in that statute you think that this Doctor can say I was exonerated?
ATTY. WHITE: I'm not saying that she is exonerated. She's saying there was no action and no finding of inappropriate care. That was what she was notified of.
Your Honor, I believe that the privilege rests with the Doctor, and if St. Francis were here, clearly they would own it.
THE COURT: Show me where. Otherwise, Counsel, I am very unhappy with the opening of this subject where the statute clearly prevents it, A, from discovery, because it's not fair to Attorney Reck or Mr. and Mrs. Stalinski — and this is Mr. Stalinski — and Ms. Bridenstine that you're relying, in fact, on the finding that they were not privileged to participate in; they don't know what information that the peer review committee had. And it just seems to violate all sorts of kind of our fair play and disclosure.
Mr. Anderson, do you wish to be heard on this?
ATTY. ANDERSON: No, Your Honor. But I'm trying to figure out a way for everybody here to deal with this situation, and I have a suggestion.
THE COURT: Well, I'm listening.
ATTY. ANDERSON: What was the exact question asked?
THE COURT: Gail, could you read that back.
(Court Reporter Reads Back)
ATTY. ANDERSON: My suggestion, Your Honor, from Attorney Reck's perspective he's looking at this saying, you know, the prejudice is going to be a finding of exoneration. But with this sort of hanging out there, I think that it would be consistent with the statute and in accordance with the statute to say based on that peer review, were your privileges in any way suspended, you know, whatever else the exception is. Your Honor read it. And that way it sort of washes over what I think Your Honor is concerned about with respect to Attorney Reck.
ATTY. RECK: Your Honor, I have one more thing to add. During the deposition — Can I just say this. The thing that really, really bothers me about Attorney White —
THE COURT: What I want you to do is direct your argument to the legal issue here.
ATTY. RECK: Yes. But the first thing that I have to say is that he throws this stuff out there, and then it's too late, and the cat is out of the bag. When you know, you know this stuff about Social Security disability benefits; you know stuff about peer review. You know this stuff is going to be objected to.
THE COURT: Mr. Reck, I am going to ask you to direct your argument toward the legal issue before the Court.
THE COURT: The legal issue. During the deposition of Dr. Giovanni at page 54, the answer from Dr. Giovanni:
"ANSWER: I believe it was reviewed at an MM, so I know I had seen —
"MR. WHITE: You're not going to get into anything that was done at the MM" — which is peer review.
THE COURT: Do you agree that MM is peer review? What does MM stand for?
ATTY. WHITE: Mortality and morbidity.
ATTY. RECK: So Attorney White said you're not going to get into anything that was done at the MM.
THE COURT: If that's an accurate reading of the deposition, I'm very unhappy that the subject was even broached in front of the jury. Because under the statute, peer review is privileged; it can't be discovered and it can't be used or introduced into evidence. And the sole purpose of questioning her on whether or not she was ever disciplined or her privileges restricted, you know, as a result of this care would in effect saying the peer review for the morbidity and mortality said that she did okay.
So I'm going to sustain the objection. And what I'm inclined to do in front of the jury is to say that the question that you heard, the objection was sustained, and that the only review of the care of Dr. Giovanni that's an issue in this court is going to be done by the jury in this case.
ATTY. RECK: Your Honor, that's fine. The problem is, you know, it still got out.
THE COURT: Do you have a better idea?
ATTY. RECK: I mean I think he should be sanctioned; that it should not have been asked. I think that should be told to the jury.
THE COURT: Do you want me to hold a hearing now?
ATTY. RECK: I'm sorry, what was the question?
THE COURT: Do you want me to hold a hearing now?
ATTY. RECK: Hold a hearing?
THE COURT: On the sanction issue.
ATTY. RECK: Well, I mean, I think sanctions are in order. It keeps happening over and over again. And this is blatant. I mean peer review is always objected to and you can never get into it and everybody knows it, and then he just throws that thing out there like, oh my God, the Doctor was exonerated by St. Francis. Now the jury is going to say, well, if St. Francis didn't find her at fault, so why should we?
It's a huge, huge issue. It's outrageous. And if you're going to bring it up — he just sneaks it in there before anybody knows about it when he knows it's so unprofessional. He should be publically sanctioned. It came out.
THE COURT: Mr. Reck, I am not going to take up the issue on sanctions. I will review that post-trial, if you care to file an appropriate motion to bring it to the Court's attention.
(Pause)
This is what I intend to say on the record and I will hear your comments so we don't get any issues.
I am going to sustain the objection to the line of questions. It was an improper line of questions based upon our General Statutes. I am ordering that the witness's response to the previous two questions be stricken.
In this case you are the judges of what the standard of care is that is applicable to Dr. Giovanni and the other apportionment defendants, and you are also the sole judges of whether or not Dr. Giovanni or the apportionment defendants have deviated from the standard of care.
Mr. Reck, do you wish to be heard?
ATTY. RECK: That's fine, Your Honor.
THE COURT: Mr. White?
ATTY. WHITE: That's fine, Your Honor.
THE COURT: Mr. Anderson.
ATTY. ANDERSON: Yes.
THE COURT: Bring the panel in. (Jury returns)
Ladies and gentlemen, I have sustained the objection to the last two questions. They were an improper line of inquiry or questioning based upon our General Statutes. I am ordering that those responses to the last two questions be stricken, and you may not refer to them or consider them in your deliberations.
In this case you, the members of the jury, will be the judge of what standard of care is applicable to Dr. Giovanni or the apportionment defendants, and you will be the judges of whether or not Dr. Giovanni or any of the apportionment defendants have deviated from the standard of care. And there will be other issues I will instruct you on, but at this point I wanted to highlight that. You may inquire, Mr. White.