Court: Connecticut Appellate Court; September 17, 2002; Connecticut; State Appellate Court
Linda Raybeck appeals a trial court judgment favoring Danbury Orthopedic Associates, P.C. in a medical malpractice case. The plaintiff seeks a new trial based on several claims: (1) the court wrongly overruled her objection to part of the defendant’s closing argument and denied a curative instruction; (2) the court improperly required expert testimony to demonstrate the defendant's duty to inform her of surgical risks and alternatives; (3) certain evidence was wrongly admitted while other evidence was excluded; (4) jury instructions on medical negligence and informed consent were inadequate and misleading; (5) the jury charge was unduly limited regarding the plaintiff's claims of failure to treat and inform; and (6) the verdict in favor of the defendant on some claims should have been set aside. The court finds the first two claims compelling and grants the requested relief, noting that the other claims will be addressed in the event of a retrial.
The background reveals that Raybeck, a title searcher, injured her left wrist on February 8, 1994, after falling on ice. She was treated by Dr. Thomas M. Malloy, who diagnosed a Colles’ fracture and recommended a closed reduction and casting. After surgery, follow-up visits indicated her wrist was healing but developing a pronounced tilt, causing deformity and significant pain. After further consultations, including a recommendation from her family doctor, Raybeck sought a second opinion at Yale University, where Dr. Scott Wolfe ultimately performed corrective surgery.
The plaintiff filed a one-count complaint alleging lack of informed consent and medical malpractice. Expert testimony from Dr. Elias Sedlin, who provided deposition evidence, indicated that the plaintiff was not informed of the risks associated with casting, specifically the potential for bones to misalign and heal improperly. Dr. Sedlin asserted that the standard of care required using percutaneous pins for the type of fracture sustained by the plaintiff, which the defendant failed to do. In contrast, the defendant's expert, Dr. Derek Woodbury, claimed that casting was the appropriate standard of care and that the only alternative was allowing the fracture to heal naturally. After the trial, the jury ruled in favor of the defendant. The plaintiff's motion for a new trial was denied, leading to an appeal.
The plaintiff contended that the court wrongly overruled her objection to the defendant's closing argument, which suggested an adverse inference from her failure to call Dr. Sedlin’s partner, Dr. Michael Houseman, as a witness. She argued that the abrogation of the missing witness rule did not negate the need for prior notice before such an argument was made and that a curative instruction was warranted. The defendant maintained that the statute did not apply as the argument did not explicitly invite the jury to draw an adverse inference and that no prior notice was necessary. The court agreed with the plaintiff on this issue.
The applicable standard of review allows trial courts significant discretion over counsel's arguments, with appellate interference only warranted in cases of clear abuse of discretion causing manifest injury. When interpreting statutes related to final arguments, the review is plenary. The Secondino rule, established in Secondino v. New Haven Gas Co., permits an adverse inference against a party that fails to call a witness who is available and expected to be called. This "missing witness rule" infers that the absent witness's testimony would have been unfavorable to the party's case. However, General Statutes § 52-216c, enacted in 1998, abrogated the Secondino rule in civil cases, preventing jury instructions on adverse inferences from a party's failure to call a witness. Counsel may still argue for such an inference during closing arguments if they first demonstrate the witness's availability to the court. Legislative history indicates that the trial judge must confirm the witness's availability before allowing the argument, reflecting a recognition of the unfairness of drawing inferences from absent witnesses who are unavailable due to death or other reasons. Additionally, during Dr. Sedlin's deposition, he discussed treating his wife's similar fracture while planning a trip to Tahiti, revealing that he would have referred her to Dr. Houseman for a different treatment plan had the trip not been a factor.
During closing arguments, the defendant's counsel referenced Dr. Sedlin's testimony, suggesting that if Dr. Houseman, an expert, had testified, it might have clarified the treatment of patients. However, no evidence was presented to establish that Dr. Houseman was available to testify. The plaintiff's counsel requested a curative instruction regarding the missing witness rule, which the court denied, stating that the plaintiff's counsel did not ask the jury to infer negatively from Dr. Houseman's absence. The court concluded that the plaintiff was entitled to a curative instruction because the defendant's counsel, by implying that Dr. Houseman's absence was significant, was inviting the jury to infer that the plaintiff should have called Dr. Houseman, whose testimony was likely unfavorable to the plaintiff.
The ruling emphasized that § 52-216c mandates advance notice and a ruling by the trial judge before counsel can argue for an adverse inference based on a witness's absence. The statute's language indicates that there must be evidence showing the witness was available to testify. Counsel's comments about the plaintiff's failure to present Dr. Houseman were improper without establishing such availability, as they suggested inferences from facts not in evidence. The defendant's reliance on State v. Malave was misapplied, as that ruling pertains only to criminal cases, while § 52-216c is relevant in civil cases. The interpretation of the statute must align with its purpose, preventing unfair adverse inferences when a witness's absence is not adequately justified.
The defendant's counsel failed to obtain an advance ruling from the court before suggesting to the jury that it should infer negatively from the absence of Dr. Houseman as a witness. There was no evidence presented to indicate Dr. Houseman was available to testify. Consequently, the remarks made during closing arguments were deemed improper, and the court erred by not providing a curative instruction. This impropriety was considered harmful, as the jury might have drawn an adverse inference from the plaintiff's failure to call Dr. Houseman, impacting the outcome of the trial.
The plaintiff also argued that the jury was incorrectly instructed regarding the necessity of expert testimony to establish the defendant's duty to inform her of risks and alternatives related to her treatment. The court's instruction was evaluated based on the overall fairness of the charge, rather than its individual components. The plaintiff referenced the Supreme Court's decision in *Godwin v. Danbury Eye Physicians, Surgeons, P.C.*, which determined that expert testimony is not required to establish a physician's duty to inform when only one physician is involved in the patient's treatment. The jury was instructed that if the duty existed, the physician must provide all material information necessary for the patient's decision-making regarding a proposed procedure.
The plaintiff must demonstrate a duty to inform, supported by expert testimony. In this case, both Dr. Malloy and Dr. LaGratta provided such testimony regarding the information and alternatives that should have been communicated to the patient, establishing the existence of a duty to inform, despite some disagreement on the specifics of that information. The court's instruction to the jury required them to apply a lay standard in determining informed consent, aligning with the precedent set in Godwin. However, the court wrongfully instructed the jury that the plaintiff had to prove the defendant's duty to inform through expert testimony, which was deemed harmful as it likely influenced the jury's verdict. The jury was misled into thinking they could not independently assess the duty to inform, contradicting the precedent that allowed for lay assessment.
Additionally, the plaintiff contested the court's evidentiary rulings regarding the exclusion of a statement made by an emergency room physician. The court agreed with the plaintiff that the exclusion was improper, as the statement was intended to demonstrate her willingness to consent to a pinning procedure if it had been presented as an option, rather than to assert the necessity of the procedure itself. This evidentiary issue will be relevant in a potential retrial.
The court ruled that an out-of-court statement was hearsay and thus inadmissible. In its jury instructions, the court clarified that the plaintiff bore the burden of proving that she would have consented to the use of percutaneous pins if they had been presented as an option. The plaintiff contended that the out-of-court statement from the emergency room physician should not have been excluded as hearsay because it was not intended to assert the truth of the statement but rather to demonstrate its effect on her decision-making. In Connecticut, statements offered for purposes other than establishing their truth are not considered hearsay. The plaintiff's intent was to use the physician's statement to show that she would have consented to the procedure had it been offered. If retried, the plaintiff's out-of-court statements from the physician and attending nurses to illustrate their effect on her decision should not be excluded as hearsay.
Additionally, the plaintiff argued that the court improperly admitted evidence concerning Dr. Sedlin's fees for providing deposition and court testimony, as well as his treatment of his wife after her wrist injury. She claimed this evidence was prejudicial, especially since the court allowed this while not permitting her to introduce what the defendant’s expert was charging in this case. Prior to trial, the plaintiff agreed to allow the defendant’s expert, Dr. Woodbury, to testify out of order due to a scheduling conflict. Dr. Woodbury testified about his fees, which were later followed by the introduction of Dr. Sedlin's fee information. The trial court allowed Dr. Sedlin’s fee information to be read to the jury, despite the plaintiff's objections. However, the appellate court declined to address this issue, suggesting that the circumstances that led to this situation are unlikely to recur in a retrial.
Defendant’s counsel may question the plaintiff's expert regarding fees for case preparation and trial, which could allow the plaintiff's counsel to highlight that the defense expert, Dr. Woodbury, also had a financial interest in the case outcome. The plaintiff contends that evidence of Dr. Sedlin's treatment method for his wife's fracture (using a cast instead of pins) was irrelevant and distracting; however, this evidence is deemed relevant as it pertains to the critical issue of whether the defendant breached the duty of care. The experts’ differing testimonies regarding the appropriate treatment method further raise issues of credibility, which are for the jury to determine.
The plaintiff also argues that the jury instructions regarding medical negligence and informed consent were inadequate and failed to incorporate the plaintiff's requested charges. The court's jury instructions, although lengthy, were found sufficient and appropriate for guiding the jury, as the overall correctness of the law was maintained. The plaintiff's assertion that the instructions overly emphasized what is not expected of physicians was rejected.
Additionally, the court chose not to address the plaintiff's remaining claims regarding directed verdicts on certain claims, noting that these issues may not arise again in a new trial due to potential new evidence. Consequently, the judgment is reversed, and the case is remanded for a new trial.
The legal opinion involves a case against Danbury Orthopedic Associates, P.C., and its agents, initially including Dr. Thomas M. Malloy and Dr. Roger J. LaGratta, but the claims against the latter two were withdrawn before trial. The plaintiff alleged multiple failures by the defendant, including: inadequate advice on treatment options, failure to inform about risks associated with a specific fracture treatment, inappropriate use of casting instead of more suitable procedures, lack of follow-up treatment after an unsuccessful closed reduction, and not informing the plaintiff about the failure of treatment when it was first recognized. The opinion also references procedural aspects of presenting witness availability in court, citing a scenario involving a husband and wife as parties in a case. The defendant contends that the case is governed by Mason v. Walsh, arguing the plaintiff should have established which physician owed her a duty of informed consent due to the involvement of multiple doctors. However, the court disagrees, noting that the plaintiff did not claim that the two doctors owed her informed consent duties simultaneously, as claims of informed consent were limited to one physician due to the timeline of treatments. The court ultimately determined that certain testimony should have been admitted, leading to the conclusion that further arguments about its admissibility were unnecessary.
