Opinion
No. CV 04 4000555
March 29, 2007.
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT NO. 122.
FACTS
The plaintiff, the estate of Lawrence Manende, filed a two-count complaint sounding in medical malpractice on August 26, 2004, against the defendants, Griffin Hospital and Ben Marsan, a physician board certified in general and vascular surgery. In response to the defendant's request to revise, the plaintiff filed a revised complaint on November 9, 2004, which is the operative complaint in the action. The plaintiff alleges the following facts. On August 15, 2002, Manende was admitted to the hospital for the purpose of undergoing a carotid endarterectomy, which the defendant performed on August 23, 2002. The defendant was also the attending physician for Manende, and exercised control and supervision over his care. While a patient at the hospital, Manende was confused and prone to climbing out of bed, prompting the nursing staff to place him in restraints. The defendant, as the attending physician, knew or should have been aware of this. The night of the operation, the hospital's nurses administered to Manende a dose of restoril, a drug the side effects of which include lethargy and confusion. The following day, Manende, feeble and confused, attempted to get out of bed and fell, causing him to fracture his right hip. The hip fracture and consequent surgery caused his condition to deteriorate until he died on September 1, 2002. The plaintiff claims that the defendant was negligent in failing to properly supervise the care of Manende, failing to order restraints for Manende or see that previous orders were carried out by the nursing staff, and failing to adequately monitor the drugs administered to the patient, which resulted in Manende's fall and contributed to his death. He seeks recovery for Manende's pain and suffering and incurred medical expenses.
Marsan filed the present motion individually; all subsequent references to "the defendant" refer to him alone.
On March 23, 2005, the plaintiff filed a motion for default for failure to plead against the defendant, which was granted the same day by the court clerk. On April 6, 2005, before judgment after default was rendered, the defendant filed an answer to the revised complaint. On May 4, 2006, the plaintiff disclosed his medical expert, Kenneth A. Brown, M.D., a physician board certified in cardiology and internal medicine. On November 22, 2006, the defendant filed a motion for summary judgment on the ground that the plaintiff has not produced an expert witness competent to testify as to the defendant's standard of care. The defendant submitted a memorandum of law, portions of Brown's deposition testimony of October 4, 2006, the defendant's deposition testimony of January 24, 2006, and an affidavit of the defendant in support. On December 8, 2006, the plaintiff filed a memorandum in opposition along with additional portions of Brown's and the defendant's deposition testimony. On January 12, 2007, the defendant filed a reply memorandum.
Practice Book § 17-32 provides in relevant part: "(a) Where a defendant is in default for failure to plead pursuant to Section 10-8, the plaintiff may file a written motion for default which shall be acted on by the clerk upon filing, without placement on the short calendar.
(b) If a party who has been defaulted under this section files an answer before a judgment after default has been rendered by the judicial authority, the clerk shall set aside the default . . ."
Deposition testimony is generally admissible for the purposes of a motion for summary judgment; Collum v. Chapin, 40 Conn.App. 449, 450 n. 2, 671 A.2d 1329 (1996); however, neither party's deposition submissions were certified. "Practice Book § [17-45] . . . contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [The rules would be meaningless if they could be circumvented by filing [unauthenticated documents in support of or in opposition to summary judgment." (Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005). Nevertheless, "the Superior Court has been split as to whether deposition testimony, either uncertified or certified, may be considered for the purposes of a motion for summary judgment." (Emphasis added.) Schratwieser v. Hartford Casualty Ins. Co., 44 Conn.App. 754, 756 n. 1, 692 A.2d 1283 (1997). "The court [may] reach the merits of the parties' arguments . . . on the basis of a lack of objection and in an effort to prevent a ruling which raises form over substance." (Citation omitted; internal quotation marks omitted.) Langner v. Stop Shop Supermarket, Superior Court, judicial district of New Haven, Docket No. CV 95-0377385 (January 27, 2000, Licari, J.). This is especially true when both parties have submitted uncertified documents without objection from the opposing side. Barlow v. Palmer, 96 Conn.App. 88, 92, 898 A.2d 835 (2006). Since neither party has objected to the others' deposition submissions, the court may consider them in making its decision.
DISCUSSION
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." (Internal quotation marks omitted.) Old Farms Associates v. Commissioner of Revenue Services, 279 Conn. 465, 479, 903 A.2d 152 (2006). "[T]he moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law. The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact . . . As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent . . ." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 318-19, 901 A.2d 1207 (2006). Deposition testimony may be considered by the court in ruling on a motion for summary judgment; Schratwieser v. Hartford Casualty Ins. Co., 44 Conn.App. 754, 756 n. 1, 692 A.2d 1283, cert. denied, 241 Conn. 915, 696 A.2d 340 (1997); as may facts contained in an affidavit; however, "[a]verments contained in an affidavit that are merely denials of the allegations in a complaint are an insufficient basis for the rendition of summary judgment." (Internal quotation marks omitted.) Gambardella v. Kaoud, 38 Conn.App. 355, 360, 660 A.2d 877 (1995).
The defendant moves for summary judgment on the ground that the plaintiff has failed to state a claim upon which relief may be granted because (1) Brown's opinion lacks factual support and (2) Brown is not a "similar health care provider" as defined by General Statutes § 52-184c. The defendant first argues that Brown's opinion is not supported by the factual record because there is no evidence that the defendant was aware of the restraints placed on Manende prior to surgery. He goes on to contend that Brown is not a "similar health care provider" since he is only board certified in cardiology, nuclear cardiology and internal medicine while the defendant is board certified in general surgery and vascular surgery. Furthermore, the defendant argues, since Brown has never performed the operation undergone by Manende and has never written postoperative orders for such surgery, he does not possess sufficient training, experience and knowledge in the field of vascular surgery so as to qualify as an expert under § 52-184c(d)(2).
Section 52-184c provides in relevant part that: "(a) In any civil action to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, in which it is alleged that such injury or death resulted from the negligence of a health care provider, as defined in [General Statutes § ]52-184b, the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
"(c) If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a `similar health care provider' is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a `similar health care provider.'
"(d) Any health care provider may testify as an expert in any action if he: (1) Is a `similar health care provider' pursuant to subsection (b) or (c) of this section; or (2) is not a similar health care provider pursuant to subsection (b) or (c) of this section but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim."
The plaintiff counters that the defendant's own testimony that he did not know of the restraints raises an issue of fact, rather than demonstrating the nonexistence of any such issue. It further contends that Brown meets the standards of § 52-184c because his testimony is offered with respect to the defendant's conduct as an attending physician, not a vascular surgeon. Since Brown has been an attending physician for postoperative vascular surgery patients for many years, the plaintiff maintains, he is qualified to testify under § 52-184c(d)(2), which gives the court discretion to qualify any knowledgeable person as an expert.
"Summary judgment may be appropriate in a medical malpractice case when it is evident that the plaintiff will be unable to produce at trial an expert witness to testify regarding the applicable standard of care." Sullivant v. Yale-New Haven Hospital, Inc., 64 Conn.App. 750, 785 A.2d 588 (2001). "The question of whether a witness is qualified to testify as an expert is largely a matter within the trial judge's discretion . . ." (Citation omitted; internal quotation marks omitted.) Davis v. Margolis, 215 Conn. 408, 417, 576 A.2d 489 (1990). "Furthermore, the question of a witness' competency to testify on technical matters is an issue to be determined by the trier by assessing the nature of the technicality involved and the proposed witness' level of expertise concerning these matters." (Citations omitted; internal quotation marks omitted.) Wallace v. St. Francis Hospital Medical Center, 44 Conn.App. 257, 260-61, 688 A.2d 352 (1997). It is difficult to discern any bright line rules regarding courts' application of § 52-184c; the determination depends largely upon the unique factual circumstances of each case.
The plaintiffs' contention that Brown is qualified to testify as to the defendant's actions as an "attending physician" are not supported by the plain language of § 52-184c. Subsection (e) provides that: "If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a `similar health care provider' is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a `similar health care provider.'" General Statutes § 52-184c(c). The defendant is board certified as a vascular surgeon and. was treating the plaintiff in his capacity as such; therefore, if Brown is to testify as to the appropriate standard of care, he must testify as to the appropriate standard of care for a vascular surgeon. See, e.g, Kroha v. Lamonica, Superior Court, complex litigation docket at Waterbury, Docket No. X02 CV 98 0160366 (July 29, 2002, Sheldon, J.) ("[E]ach physician is governed in his own medical practice by the standard of care that applies specifically to that practice, not that of any other medical specialty"). The defendant does not step out of his shoes as a vascular surgeon the moment he puts down the knife. Brown is certified only in internal medicine and cardiology and, therefore, does not meet the requirements of § 184c(c).
Even the simple act of safeguarding against falls requires testimony for a specific specialty: in Randolph v. Norwalk Hospital Ass'n., Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 03 0198393 (September 26, 2006, Adams, J.), the court was presented with a very similar factual situation where the plaintiff's eighty-year-old decedent died after falling out of bed after undergoing a carotid endarterectomy, and the plaintiff estate claimed the nurses were negligent in failing to prevent him from getting out of bed. The court held that the expert testimony of a registered nurse was required as to the standard of care for the defendant hospital's registered nurses.
This does not, however, conclude the inquiry, because § 52-184c(d) provides an alternative ground for allowing expert testimony if the expert "to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine." General Statutes § 184c(d)(2). A number of courts have recognized that this subsection codifies the common-law rule that an expert may testify as to the standard of care in another specialty if he is sufficiently familiar with that specialty: "Subdivision (2) of § 52-184c(d) seems to deal with situations where specialties overlap . . . Such a construction of the statute is consistent with prior common-law principles. The common law permitted physicians acting in a different specialty to testify as to the standard of care in the defendant's specialty as long as they knew what constituted the standard of care for the specialty about which he was called to testify . . . [T]here are overlaps where artificial lines that demarcate one specialty from another dissolve when certain procedures or diagnoses are involved." Friedman v. Meriden Orthopaedic Group, 77 Conn.App. 307, 316-17, 823 A.2d 364 (2003), aff'd, 272 Conn. 57, 861 A.2d 500 (2004); see also Markland v. Abrams, Superior Court, judicial district of Fairfield, Docket No. CV 02 0391472 (March 15, 2006, Arnold, J.) ( 41 Conn. L. Rptr. 303, 307) ("The minimum standards set forth in § 52-184c have done nothing to abrogate the fundamental requirement, which was explained in detail in the `crucial question' in Fitzmaurice v. Flynn, 167 Conn. 609, 617-18, 356 A.2d 887 (1975), that an expert testifying about the standard of care must know what that standard is in a particular situation. Medical expert witnesses have long been permitted to acquire their knowledge of the applicable standard of care via study as well as by experience"). That is, experts from a related field may testify as to the standard of care for the defendant physician's field provided they demonstrate an acceptable basis for their knowledge of that standard.
In Friedman v. Meriden Orthopaedic Group, supra, 77 Conn.App. 307, the plaintiff attempted to call a neuroradiologist to testify as to the negligence of the defendant orthopaedic surgeon who had allegedly misread the plaintiff's x-rays before performing spinal surgery. The court, discussing the possibility of specialty "overlap" noted above, held that the expert's testimony was properly excluded, not because the expert was incapable of testifying as to the standard of care for another specialty but because it was "unclear from the record whether [the expert] was testifying as to a standard of care expected of a board certified neuroradiologist, his own field, or an orthopedic surgeon reading plain X rays, the defendant's specialty. The foundation question simply was never asked to [the neuroradiologist] concerning which standard of care was applicable to [the defendant surgeon.]" Friedman v. Meriden Orthopaedic Group, supra, 77 Conn.App. 318-19. In Marshal v. Hartford Hospital, 65 Conn.App. 738, 783 A.2d 1085 (2001), the plaintiff infant was injured by the improper administration of an intravenous catheter by the defendant neonatologist. The court, also recognizing the possibility of expertise "overlap" discussed in Friedman, allowed expert testimony from a pediatric cardiologist on the standard of care for the neonatologist, since the pediatric cardiologist had extensive experience in the management and administration of catheters to infants. Id., 757-58. In Markland v. Abrams, supra, 41 Conn. L. Rptr. 303, a physician board certified in internal medicine and pulmonary medicine was permitted to testify as to the standard of care for a general surgeon, since the expert testified that "signs and symptoms of [the plaintiff's ailment] and the treatment of these conditions crosses all medical disciplines," and the symptoms were taught to all medical students during their residencies. Id., 308.
On the other hand, the court in Nesi v. Yale-New Haven Hospital, Superior Court, judicial district of Litchfield, Docket No. CV 99 0079893 (January 4, 2002, Agati, J.) ( 31 Conn. L. Rptr. 177), refused to allow a board certified general surgeon to testify as to the standard of care for a plastic surgeon regarding the care of postoperative infection incident to a TRAM flap procedure. Although the expert had assisted in several such procedures and treated postoperative infections in two others, and despite his testimony that postoperative wound care is the same for all surgeons regardless of specialty, the court determined that the expert did not have sufficient training, experience and knowledge relative to the specialty in question (plastic surgery) to allow him to testify under § 52-184c(d). Similarly, in Kroha v. Lamonica, supra, Docket No. X02 CV 98 0160366, the court held that an obstetrician/gynecologist was not qualified to testify as to the standard of care for an internal medicine specialist, even though the plaintiff's medical condition was one "that both internists . . . and . . . Ob-Gyns . . . are trained to recognize and understand whenever they treat or care for pregnant women." Id. The plaintiff's expert had testified that he had acquired some experience in internal medicine through courses intended to give OB/GYNs training in basic primary care for women; furthermore, in supervising and training medical students on rotation, he was familiar with the knowledge common to all medical students regarding the plaintiff's particular condition. Notwithstanding this testimony, the court found it insufficient under § 52-184c(d)(2), reasoning that his experience with internists and familiarity with their standards of care was too limited. Id.
The present case presents a factual situation closer to that of Marshal v. Hartford Hospital, supra, 65 Conn.App. 738, or Markland v. Abrams, supra, Docket No. CV 02 0391472, than Kroha v. Lamonica, supra, Docket No. X02 CV 98 0160366, or Nesi v. Yale-New Haven Hospital, supra, 31 Conn. L. Rptr. 177. Brown is certified as a cardiologist, a field "related to" that of vascular surgery as contemplated by § 52-184c(d). Moreover, he has testified that he has monitored and attended to many patients having undergone the same surgery as the plaintiff, and is familiar with the various procedures and treatments related to postoperative care for such patients. While he has not issued postoperative orders himself, it is submitted that he has "demonstrate[d] a knowledge acquired from experience or study of the standards of the specialty of the defendant physician"; Friedman v. Meriden Orthopaedic Group, supra, 77 Conn.App. 542; and is competent to testify as to the prevailing standard of care for surgeons issuing postoperative orders incident to a carotid endarterectomy.
Neither party has presented evidence as to the scope of each specialty's practice. Stedman's Medical Dictionary (23d ed., 1976) defines "cardiologist" as "One having special knowledge and experience in the diagnosis and treatment of heart disease." It defines "vascular" as "relating to or containing blood vessels." Construed in the plaintiff's favor, it would seem that treatment or surgery impacting the blood vessels is related to the functioning of the heart, and vice versa. It is submitted that there is sufficient "overlap" between these two fields to allow Brown to testify, provided he demonstrates a basis for his knowledge of the defendant's standard of care.
The defendant also contends that there is no factual basis for Brown's testimony in the record, noting that the defendant testified that he did not know Manende had been restrained prior to surgery and that Brown could not tell from the record whether the defendant had actually seen Manende prior to surgery. "In order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion." (Emphasis added; internal quotation marks omitted.) Wallace v. St. Francis Hospital, supra, 44 Conn.App. 260. In the present case, the defendant has testified that he was the attending physician for Manende, and there is evidence that Manende was restrained in a posey vest prior to his surgery. Mindful that "the evidence must be viewed in the light most favorable to the [nonmovant] . . ."; (internal quotation marks omitted.) Zielinski v. Kotsoris, supra, 279 Conn. 318-19; these facts are sufficient to support the basis on which Brown's testimony is predicated: that the defendant, as the attending physician for Manende, should have been aware of the restraints, either by physically seeing them or reviewing the nurse's notes. The only evidence to the contrary is the defendant's own testimony, and "[a]verments contained in an affidavit that are merely denials of the allegations in a complaint are an insufficient basis for the rendition of summary judgment." (Internal quotation marks omitted.) Gambardella v. Kaoud, supra, 38 Conn.App. 360; see also Levett v. Etkind, 158 Conn. 567, 575, 265 A.2d 70 (1969) ("In a malpractice action . . . determination of the facts concerning the conduct under consideration is always for the jury"). This does not, of course, establish that the defendant knew or should have known of the restraints; rather, it raises a disputed issue of fact that cannot be decided by summary judgment.
Since the plaintiff has offered admissible expert testimony as to the defendant's appropriate standard of care, and there are material issues of fact in dispute, the defendant is not entitled to judgment as a matter of law at this time. Therefore, defendant's motion for summary judgment is denied.