Opinion
No. 04-0568409
August 22, 2006
MEMORANDUM OF DECISION
This is a medical malpractice action brought by the plaintiffs, Todd Peterson and Mark Peterson, as co-executors of the estate of Christopher Peterson (decedent), against the defendants, Leonard Copertino, M.D., and Ocean Radiology Associates, P.C. Defendant Copertino is a radiologist employed by the defendant, Ocean Radiology Associates, P.C. The gravamen of the plaintiffs' complaint, dated January 12, 2004, is the alleged misreading of the decedent's chest x-ray on or about October 25, 2001. The said misreading allegedly missed the presence of a "malignant cancerous mass" and "increased density in the left hilum." In March 2002, the decedent was diagnosed with "extensive small cell lung carcinoma with extensive metastatic disease to the liver." As a result of the defendants' alleged negligence, the plaintiffs claim that the delay in diagnosis reduced the likelihood of the decedent's chance of survival or successful treatment. On July 25, 2002, the decedent died from the lung cancer that had metastasized throughout his body.
On January 24, 2006, the defendants moved for summary judgment on the ground that there are no genuine issues of material fact to support the plaintiffs' claim that the defendants' alleged negligence caused the decedent a loss of chance to survive or loss of chance for successful treatment. Specifically, the defendants argue that the plaintiffs cannot meet the requisite evidentiary standard of proof to prevail on their "lost chance" claim.
The plaintiffs assert in their opposition to the motion for summary judgment that a genuine issue of material fact exists, namely, the issue of proximate causation. Further, the plaintiffs assert that the "traditional approach" used by Connecticut courts in analyzing causation in lost chance cases is flawed, and the plaintiffs urge this court to instead adopt the "substantial chance" approach to loss of chance recovery. The matter was heard at short calendar on April 24, 2006.
Borkowski v. Sacheti, 43 Conn.App. 294, 302-07, 682 A.2d 1095, cert. denied, 239 Conn. 945, 686 A.2d 120 (1996), discusses three possible routes in effectuating the lost chance doctrine, the relaxed causation approach, the proportional approach and the traditional approach, and concludes that Connecticut follows the traditional approach. Poulin v. Yasner, 64 Conn.App. 730, 744-45 n. 18, 781 A.2d 422, cert. denied, 258 Conn. 911, 782 A.2d 1245 (2001).
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. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party." (Internal quotation marks omitted.) Larobina v. McDonald, 274 Conn. 394, 399, 876 A.2d 522 (2005). "In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact. The courts are in entire agreement that the 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." (Internal quotation marks omitted.) Martel v. Metropolitan District Commission, 275 Conn. 38, 46, 881 A.2d 194 (2005). "[T]he party opposing . . . a motion [for summary judgment] must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Lombardo's Ravioli Kitchen v. Ryan, 268 Conn. 222, 237, 842 A.2d 1089 (2004).
"It is a generally recognized rule in malpractice cases that a plaintiff must plead and prove not only that injury occurred and that the defendant was negligent, but also that the defendant's negligence caused the injury . . . Medical malpractice actions involving diagnosis of cancer differ from other malpractice actions only factually. The legal analysis and elements remain the same. There are four essential elements to a malpractice action. They are: (1) the defendant must have a duty to conform to a particular standard of conduct for the plaintiff's protection; (2) the defendant must have failed to measure up to that standard; (3) the plaintiff must suffer actual injury; and (4) the defendant's conduct must be the cause of the plaintiff's injury . . . Thus, to be entitled to damages, the plaintiff must establish on the basis of reasonable medical probability the `necessary causal relation' between the failure of the defendants to diagnose the lung cancer and the injury the plaintiff claims to have suffered . . . This connection cannot rest upon speculation or conjecture." (Citations omitted; emphasis in original.) LaBieniec v. Baker, 11 Conn.App. 199, 202-03, 526 A.2d 1341 (1987).
"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. Expert medical opinion evidence is usually required to show the cause of an injury or disease because the medical effect on the human system of the infliction of injuries is generally not within the sphere of the common knowledge of the lay person." (Internal quotation marks omitted.) Poulin v. Yasner, 64 Conn.App. 730, 738, 781 A.2d 422, cert. denied, 258 Conn. 911, 782 A.2d 1245 (2001).
"Connecticut recognizes a cause of action for lost chance. A plaintiff must prove his entitlement to recover in a medical malpractice case based upon lost chance by providing evidence that would lead a jury to the reasonable conclusion that, more probably than not, the defendant's negligence was the direct and proximate cause of a decrease in the chance of successful treatment of the plaintiff's injury . . . In Connecticut, such cases follow a traditional approach in the determination of proximate cause." (Citations omitted.) Poulin v. Yasner, supra, 64 Conn.App. 745.
"In order for the plaintiff to prevail on [his] claim that the defendant's negligent acts decreased the decedent's chance for successful treatment, [the plaintiff] must show (1) that [the decedent had] in fact been deprived of a chance for successful treatment and (2) that the decreased chance for successful treatment more likely than not resulted from the defendant's negligence . . . Thus, in order to satisfy the elements of a lost chance claim, the plaintiff must [first] prove that prior to the defendant's alleged negligence, the [decedent] had a chance of survival of at least 51 percent . . . Once this threshold has been met, the plaintiff must then demonstrate that the decedent had a decreased chance for successful treatment and that this decreased chance more likely than not resulted from the defendant's negligence. See Drew v. William W. Backus Hospital, [ 77 Conn.App. 645, 655, 825 A.2d 810 (2003)] ('a plaintiff, to prove his or her entitlement to recovery, must demonstrate lost chance in terms of probability, not possibility'). Accordingly, it is not sufficient for a lost chance plaintiff to prove merely that a defendant's negligent conduct has deprived him or her of some chance; in Connecticut, such plaintiff must prove that the negligent conduct more likely than not affected the actual outcome." (Citations omitted; emphasis in original; internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn. 551, 573-74, 864 A.2d 1 (2004).
In the present case, to establish the nonexistence of a genuine issue of material fact, the defendants submit as evidence excerpts of the deposition testimony of the plaintiffs' expert witness, James Rigas, M.D., a thoracic oncologist, who attests that, inter alia, on October 25, 2001, the date of the alleged misreading of the chest x-ray, (i) the decedent had limited small cell lung cancer, (ii) the two-year survival rate for patients diagnosed with limited stage small cell lung cancer is 30% to 40%, and survival rates decrease to 10% to 20% at five years, and (iii) had the decedent been diagnosed in October 2001 with limited small cell lung cancer, it is less than 50% probable that he would have survived two years. (See defendants' exhibit B.)
Dr. Rigas testified that small cell lung cancer is divided into two types, limited stage and extensive stage disease.
In opposition to the motion for summary judgment, the plaintiffs also submit excerpts of the deposition testimony of Dr. Rigas. The plaintiffs counter that Dr. Rigas testified that the decedent's two-year survival rate could have statistically been higher or lower than the range of 30% to 40%.
As noted by the defendants in their memorandum of law in support of their motion for summary judgment, the plaintiffs, to prove their entitlement to recovery, must demonstrate lost chance in terms of probability, not possibility. Drew v. William W. Backus Hospital, supra, 77 Conn.App. 655. While Dr. Rigas' testimony could be interpreted to mean that there is a possibility that the decedent could have achieved a better outcome had his cancer been diagnosed earlier, the law requires the plaintiffs to prove causation with probabilities, not possibilities. In Connecticut, the plaintiffs must first prove that prior to the defendants' alleged negligence, the decedent had a chance of survival of at least 51 percent. Boone v. William W. Backus Hospital, supra, 272 Conn. 573-74. After careful review of the evidence submitted by the parties, namely the deposition testimony of Dr. Rigas, this court finds that the plaintiffs have failed to provide the necessary factual predicate to demonstrate the existence of a genuine issue of material fact as to the issue of the decedent's chance of survival or successful treatment of at least 51 percent. The plaintiffs' expert witness, Dr. Rigas, never testified that it was more likely than not that had the decedent been given the appropriate treatment at the time of Dr. Copertino's alleged misreading of the x-ray, the decedent would have had a better outcome in this case. Moreover, it is clear from the deposition testimony submitted by both parties that Dr. Rigas appeared reluctant to render an opinion, to a reasonable degree of medical probability, as to whether an earlier diagnosis in 2001 would have afforded the decedent a likelihood of survival over 50 percent.
CONCLUSION
Accordingly, for all the foregoing reasons, the defendants' motion for summary judgment is hereby granted.