Opinion
No. CV 03 0198393 S
September 26, 2006
MEMORANDUM OF DECISION RE MOTION TO PRECLUDE (115.0)
In this medical malpractice case the defendant, Norwalk Hospital Association moves to preclude testimony of an expert witness disclosed by the plaintiff, Laurel Randolph, administratrix for the estate of her late father Victor Mason.
The case was commenced in December 2003. The complaint alleged that Mason was admitted to Norwalk Hospital in August 2001 and died while an inpatient there on September 5, 2001. It is alleged that within one week of his death while in the hospital "he fell either out of his bed or while making his way from his bed, injuring himself and fracturing bones. Said injury while not the immediate cause of death, as indicated on his Certificate of Death, caused pain and suffering as well as extending his hospital stay, and complicating his existing condition." The specifications of negligence are that the hospital failed to monitor Mason's physical condition, failed to sedate him so that he would not leave his bed unescorted and failed to have sufficient nursing or orderly staff so that he could be properly monitored and not leave his bed unescorted.
The complaint also alleges that Mason had undergone a carotid endarterectomy (excision of diseased portion of artery) in August 2001 at Greenwich Hospital and had been admitted to the Norwalk Hospital emergency room with acute bleeding from that artery on August 23, 2001. Other facts in the court record show that while at Norwalk Hospital, Mason, an 80-year-old, had several additional repairs of the carotid artery, and suffered strokes leaving him with some profound deficits including aphagia (inability to eat) and partial paralysis of his right arm and both legs and an ongoing infection at the endarterectomy site. According to the hospital record Mason's family, at his wishes, had requested comfort care only as of September 5, 2001, the date he died.
Norwalk Hospital bases its motion to preclude on the following facts. On October 5, 2005 the presiding judge for civil cases in Stamford-Norwalk Judicial District (Rogers, J.) issued a scheduling order requiring the plaintiff to disclose experts by March 1, 2006 and that they should be deposed by April 15, 2006. The defendant's experts were ordered to be disclosed on May 15, 2006 and deposed by July 1, 2006. A trial date of October 11, 2006 was selected. The scheduling order was nonmodifiable without approval of the presiding judge if the proposed modifications would impact the trial date.
The plaintiff disclosed one expert, Norma G. Cuellar, DSN, R.N. on June 19, 2006, more than three and a half months after the time for disclosure ordered by the court.
On June 28, 2006 the defendant filed a motion to preclude the testimony of Dr. Cuellar, however, despite the defendant's possession of a date and file stamped copy the motion never made it in the court file and therefore, did not appear on short calendar. Only after the clerk's office accepted, in August 2006, the date and file stamped copy retained by the defendant, did the motion reach the file and it appeared on the short calendar September 18, 2006.
Norwalk Hospital contends that the disclosure of Dr. Cuellar is late and unfairly prejudicial to its defense, and that the disclosure is inadequate.
Turning to the latter issue first, the court finds the disclosure inadequate. The June 19, 2006 disclosure stated:
Subject Matter on Which the Expert is Expected to Testify:
Dr. Cuellar will testify on standards of nursing as applies to hospital settings with geriatric patients substantially similar to the Plaintiff's decedent, Victor Mason. Furthermore, the subject matter to be covered would be the sufficiency of the nursing care rendered Victor Mason during the last week of August 2001 and specifically focusing on the circumstances surround his fall out of bed and whether it could have been prevented.
The Substance of the Facts and Opinions to which the Expert is Expected to Testify:
The expert will testify as to her analysis of the actual treatment record focusing on the nursing aspect of the care rendered to the Plaintiff's decedent, Victor Mason, during the last week of August 2001, especially as regards to geriatric nature of said patient, the sufficiency or existence of a "fall policy," as pertains to whether or not the Plaintiff's decedent Victor Mason's fall could have been or should have been prevented by reasonable nursing care. Her analysis will measure the care rendered to the applicable standard of nursing care required.
Summary of Grounds for each Opinion:
The expert will testify as to the sufficiency of hospital policy as regards falls in geriatric patients, whether or not the hospital policy, if it was sufficient, was sufficiently consistent with the actual nursing care rendered the Plaintiff's decedent, Victor Mason, and if not sufficient, based upon the reasonable "fall" policies of other hospitals similar in size and nature and patient care to the Defendant, Norwalk Hospital Association, and whether or not if the standard of care of the nursing would have proximately prevented the fall experienced by Plaintiff's decedent during the last week of August 2001 at the Defendant, Norwalk Hospital Association.
On August 17, 2006 the plaintiff served an "Amended Disclosure" which increased the scope of Dr. Cuellar's proposed opinion testimony.
Subject Matter on Which the Expert is Expected to Testify:
Dr. Cuellar will testify on standards of nursing as applies to hospital settings with geriatric patients substantially similar to the Plaintiff's decedent, Victor Mason. Furthermore, the subject matter to be covered would be the sufficiency of the nursing care rendered Victor Mason during the last week of August 2001 and specifically focusing on the circumstances surrounding his fall out of bed and whether it could have been prevented. Dr. Cuellar will also testify as to whether or not there was a causative link between Victor Mason's fall out of bed and his subsequent deterioration physically and whether said fall contributed in any way to his death during September 2001.
The Substance of the Facts and Opinions to which the Expert is Expected to Testify:
The expert will testify as to her analysis of the actual treatment record focusing on the nursing aspect of the care rendered to the Plaintiff's decedent, Victor Mason, during the last week of August 2001, especially as regards the geriatric nature of said patient, the sufficiency or existence of a "fall policy," as pertains to whether or not the Plaintiff's decedent, Victor Mason's fall could have been or should have been prevented by reasonable nursing care. Her analysis will measure the care rendered to the applicable standard of nursing care required. The expert will testify that the fall caused a deterioration in his medical well-being wherein he broke his hip and this added to his heavy medical burden, especially in light of Victor Mason's age.
Summary of Grounds for Each Opinion:
The expert will testify as to the sufficiency of hospital policy as regards falls in geriatric patients, whether or not the hospital policy, if it was sufficient, was sufficiently consistent with the actual nursing care rendered the Plaintiff's decedent, Victor Mason, and if not sufficient, based upon the reasonable "fall" policies or other hospitals similar in size and nature and patient care to the Defendant, Norwalk Hospital Association, and whether or not if the standard of care of the nursing would have proximately prevented the fall experienced by Plaintiff's decedent during the last week of August 2001 at the Defendant, Norwalk Hospital Association. The expert will in addition rely upon medical documentation, including an orthopaedic surgeon's consulting report and a medical file from Fr. Lawrence Letkowitz of Norwalk, Connecticut, as well as nursing notes.
The June 19, 2006 disclosure does not disclose any opinions held by Dr. Cuellar. Specifically, it says her opinion will deal with (1) the "sufficiency or existence of a "fall policy" (2) whether Mason's fall could or should have been prevented by reasonable nursing care and (3) an "analysis" as to the care rendered measured by the standard of nursing care required. This discloses only subject matters. At no point does the disclosure disclose what Dr. Cuellar's expert opinion will be on these subject matters.
The August 17, 2006 "Amended Disclosure" provides essentially the same information, or lack thereof, with one exception. Dr. Cuellar is disclosed as holding as opinion that Mr. Mason's fall caused "a deterioration in his medical well-being." This single opinion goes to the issue of causation, not to the existence, or not, of medical negligence.
The total absence of any opinions in the June disclosure and the absence of any opinions on negligence in the August disclosure may be attributable to the fact that Dr. Cuellar testified she had not reviewed any treatment records concerning Mr. Mason as of June 19, 2006. Transcript, Deposition of Cuellar, September 8, 2006, 79 (Tr.) Apparently some records were made available by plaintiff's attorney to Dr. Cuellar piecemeal, between July 27, 2006 and September 1, 2006. Tr. 18-23. Dr. Cuellar testified repeatedly that she had not received nor reviewed all of Mr. Mason's medical records. Id., 27-28, 36-37 (testifies that she only has 250 pieces of a 1,000 piece puzzle) 39 (did not get records of Mr. Mason's stay in Norwalk Hospital Intensive Care Unit) 81 (does not have all the nursing records) 82 (reiterates that she only has 250 pieces of a 1,000 piece puzzle) 93 (does not have any records reflecting doctor's orders).
According to the defendant the plaintiff has never requested the full medical record of Mr. Mason's Norwalk Hospital stay. Defendant did not refute this at oral argument.
As evident from the foregoing, Dr. Cuellar's deposition was taken on September 8, 2006, and a full transcript was made available to the court after oral argument on September 18, 2006. At her deposition Dr. Cuellar claimed that she had an opinion. After stating that she needed and would receive more records from Norwalk Hospital, and needed to "thoroughly look at the whole chart," and that she did not have all of the evidence that would make any decision from (Tr. 81-82), she nevertheless engaged in the following colloquy:
Q. (defendant's attorney) So, as of right now, am I correct that you are not able to express an opinion concerning a breach of nursing standard of care —
A. (Dr. Cuellar) No, you are not correct. No, you are not correct.
Based on what I read here, based on what I have now, I would say that there are some questions that still need to be answered.
Q. Are you able to express an opinion as of today, based upon reasonable medical certainty, that there was a breach of the standard of care that caused Victor Mason to fall on August 27, 2001?
A. Based on what I know now, which I will say may change if any other information comes my way, I would say there was a breach.
Q. What is the breach of the standard of care?
A. I am not convinced that there was a fall protocol that was actually implemented because of the deposition of the nurses, documents that I have read, that have said there was no fall protocol, they didn't know of any fall protocol.
So, I believe these nurses may have just signed their names by fall protocol thinking that a lower bed, guardrails up was all they had to do.
Thus, Dr. Cuellar properly admitted that her "opinion" might change based on additional information she expected to receive. Further, her statement "I am not convinced" does not appear to reach the level of certainty required for admissibility of an expert medical opinion. Significantly, as she rather argumentatively discussed what she thought, Dr. Cuellar again referred to information she needed but does not have. Id., 91-95. Most importantly, at the end of the deposition plaintiff's attorney, Mr. Brandon elicited the following from Dr. Cuellar:
Dr. Cuellar's belief that Norwalk Hospital nurses were not aware of a "fall protocol" was pretty much discredited through further examination. Tr. 107-17.
BY MR. BRANDNER:
Q. Now, you have not had the opportunity to review the deposition of anybody else at this point other than Nurse Forsythe and Nurse Davey, correct?
A. Correct.
Q. If you received the remaining depositions, it is your intention to review them carefully?
A. Most definitely.
Q. And until you review them, you don't know whether or not they may supplement or change your opinions here today?
A. Right.
In this court's view the two written disclosures and Dr. Cuellar's deposition do not provide sufficient information to permit the defendant to know and understand what the parameters of the plaintiff's case are against it. It is well accepted that a plaintiff must prove a medical malpractice case by offering expert opinion as to the relevant prevailing professional standard of care and expert opinion that the standard was breached by the defendant. See Gold v. Greenwich Hospital Ass'n., 262 Conn. 248 (2002). In this case, the plaintiff did not disclose pursuant to Practice Book § 13-4 any expert opinion as to the standard of care or how it was breached. Even with the benefit of a deposition the plaintiff has not set forth any clear exposition of an expert opinion as to standard of care, breach of the standard or causation of injury by the breach. Furthermore, those particles of testimony by Dr. Cuellar that might be deemed relevant expert witness opinion have been so conditioned and undermined by the witness' and plaintiff's counsel's position that any opinions might change upon receipt of additional information (information that Dr. Cuellar observes is desperately needed) as to make their disclosure almost worthless. Therefore, the defendant Hospital is in the present position of having little and perhaps inaccurate information as to the thrust of plaintiff's case. This does not amount to adequate disclosure. See e.g. Sullivan v. Yale-New Haven Hospital, Inc., 64 Conn.App. 750, 757 n. 4 (2001); Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., 79 Conn.App. 22, 44-45 (2003); Merra v. Jaiman, 80 Conn.App. 131, 136 (2003).
In addition to finding the plaintiff's disclosure inadequate in content, the court finds the disclosure to be untimely, in violation of a court order and ultimately prejudicial to the defendant. The plaintiff concedes, as it must, that its disclosure was in violation of Judge Rogers' order of October 5, 2005. Furthermore, the plaintiff has provided no reason or excuse for violating the order. A trial court may issue a scheduling order for the timely disclosure of expert witnesses. McVerry v. Charash, 96 Conn.App. 589, 590 (2006). Indeed, such orders are necessary to the effective dispensing justice. See In Re Mongillo, 190 Conn. 686 (1983) rev'd in part on other grounds, State v. Salmon, 250 Conn. 147 (1999). The court also has the authority to preclude an expert not disclosed within a reasonable time before trial. Practice Book § 13-4(4).
The plaintiff contends essentially that the delay in disclosure has not been egregious and that other cases where testimony has been precluded involved longer delays. In McVerry v. Charash, supra, the plaintiff was eleven or twelve months in arrears of court-ordered disclosure times when disclosing experts. However, the disclosure was finally made thirteen weeks before the trial date. Here the amended disclosure was filed eight weeks before the trial date, and since the court finds that adequate disclosure has not been made yet, in effect disclosure is still wanting two weeks before trial. In Vitone v. Waterbury Hospital, 88 Conn.App. 347 (2005) a motion to preclude was granted about six weeks before the trial date when the plaintiff's disclosure of experts had remained incomplete for several years. While there are cases in which a party has been in violation of court orders for a longer period of time, the court has not found, nor has the plaintiff pointed to, any cases in which the failure to disclose has continued as close to the trial date (two weeks) as in this case.
Practice Book § 13-4(4) authorizes a trial court to preclude expert testimony if late disclosure of such testimony will cause undue prejudice to the moving party, or will cause undue interference with the orderly progress of the case, or involved bad faith delay in disclosure. The court makes no finding on the issue of bad faith. However, it is clear that the late disclosure unfairly prejudices the Norwalk Hospital for the reasons stated earlier, i.e. that the disclosure so far does not provide adequate information to allow Norwalk Hospital to defend itself. Furthermore, the late disclosure interferes with the orderly progress of the case which has a trial date two weeks hence. Without a preclusion order the Hospital will be forced to seek a continuance for further discovery of Cuellar (presumably after she has had access to additional medical records) and for disclosure of its own experts.
In Millbrook Owners Association v. Hamilton Standard, 257 Conn. 1 (2001) the Connecticut Supreme Court set out and clarified parameters for imposing sanctions for violation of a discovery order. First, the order to be complied with must be reasonably clear, or the party to be sanctioned understood its meaning; second, the record must establish that the order was violated; third, the sanction imposed must be proportional to the violation. Id., 257 Conn. 17-18.
The scheduling order is clear that disclosure of the plaintiff's expert was to be made by March 1, 2006, almost seven and a half months before trial. Counsel for both parties signed the order indicating agreement and understanding. Similarly, disclosure of experts is defined in Practice Book § 13-4(4) as including "the substance of the facts and opinions to which the expert is expected to testify, and a summary of the grounds for each opinion." The court finds the orders to be clear, and the plaintiff has not contended otherwise.
Plaintiff has admitted that she violated the scheduling order. This court has found, as set forth above, that the provisions of Practice Book § 13-4(4) have not been complied with.
The proportionality of the sanction of preclusion merits further discussion. The court is aware that preclusion of the testimony of Dr. Cuellar will likely have serious, possibly fatal, consequences for the plaintiff's case, since, as noted above, expert testimony is essential to prove a medical negligence case. This court is also mindful of the goal of the judiciary to obtain adjudication of those cases, which cannot be resolved by agreement, on the merits of the parties' positions. It is important, however, to the court's function in expediting and controlling the flow and progress of civil litigation that rules and orders designed to accomplish that end be adhered to, and if necessary enforced. A scheduling order such as Judge Rogers' should not be flaunted, nor should Practice Book provisions be ignored. This case is based on events over five years old. The lawsuit itself has been pending almost three years and a trial date of October 11, 2006 was set a year ago. A defendant is entitled to its day in court on a level battleground equally as much as the plaintiff, and both parties are entitled to rely on compliance by the other with orders and court rules. In this case the plaintiff's failure to comply has placed the defendant in a position of being unfairly prejudiced if the plaintiff's expert is allowed to testify on the scheduled trial date. Therefore, the court finds that an order of preclusion is proportional to the rules violations of the plaintiff because any other remedy, e.g. no preclusion, lengthy continuance of trial date to allow further discovery of Dr. Cuellar and defendant's disclosure of rebuttal expert, would prejudice the defendant's rights or impair the court's ability to control its docket and schedule the expeditious and fair resolution of cases. See Advanced Financial Services, Inc. v. Associated Appraisal Services, Inc., supra, 79 Conn.App. 47.
Conclusion
The motion to preclude Dr. Cuellar's testimony is granted.