Opinion
No. CV06 500 46 13
October 10, 2007
MEMORANDUM OF DECISION RE MOTION FOR ARTICULATION (#115)
On May 9, 2007, the plaintiff, Cecilia Harrold, individually and as Administratrix of the Estate of her late husband Michael Harrold, filed a two-count amended complaint against the defendant, the Norwalk Hospital Association. The first count raises a claim of medical malpractice, and the second count sounds in loss of consortium. The present case arises out of alleged medical malpractice resulting from the care and treatment provided to Michael Harrold (decedent) on November 20, 2005, November 23, 24 and 25, 2005, while he was a patient at the defendant's facility. The decedent passed away while a patient at the hospital on November 24, 2007.
On July 16, 2007, the defendant filed a motion for a protective order to prohibit or, alternatively, to limit the scope of the deposition of Dr. Michael Carius, the chairman of the department of emergency medicine at the Norwalk Hospital. The defendant also sought an order regarding the duplicative production requests included in the notice of deposition. The plaintiff filed a memorandum in opposition on July 26, 2007, to which the defendant filed a reply memorandum on July 30, 2007. This court granted the defendant's motion for a protective order on August 1, 2007.
On November 8, 2006, the plaintiff filed a motion for articulation, requesting clarification of the basis of the court's decision to grant the defendant's motion; specifically, the request questions the effect of the decision in light of the fact that the defendant sought alternative relief, as well as whether the court considered the plaintiff's memorandum in opposition. The court now grants the motion for articulation and provides a clarification of its ruling.
The defendant argued that the motion for protective order should be granted because Dr. Carius was not involved in the decedent's treatment or care; accordingly, he does not have independent knowledge concerning the treatment. The defendant further maintained that the plaintiff is seeking testimony in the nature of expert testimony, and Carius has not been disclosed as an expert witness. The defendant was also concerned that Carius may be required to provide information that he gained in connection with the peer review process, which is protected pursuant to General Statutes § 19a-17b. In the alternative, the defendant argued that if the plaintiff is permitted to depose Carius, the scope of the deposition should be limited to how the emergency department is managed, and/or any rules, protocols or regulations the department may have pertaining to issues relevant in this case. An inquiry beyond this scope would be redundant, according to the defendant, as the requested information has already been provided to the plaintiff.
The plaintiff responded by arguing that the procedure and protocols of the Norwalk emergency room staff is a significant issue in the present case, and her notice of deposition seeks to explore this issue. As the chairman of the department of emergency medicine, Carius is in a position to explain what is and what should be done with positive blood test results such as those of the decedent. It was the plaintiff's contention that, even though Carius was not a treating doctor, under the liberal rules of discovery, the deposition seeks relevant information. Furthermore, the plaintiff argues that there is no rule that prohibits a plaintiff from eliciting expert opinions in a deposition of defendant medical agents/employees in medical malpractice cases involving the plaintiff's treatment or hospital standards and procedures relating the plaintiff's care.
The defendant, in turn, responded by arguing that an attempt to elicit expert testimony is not permitted under the rules of practice; furthermore, the cases cited by the plaintiff in which the court allowed expert testimony to be elicited prior to the disclosure of experts involved the treating physician, which is not the case here.
"[T]he court's inherent authority to issue protective orders is embodied in Practice Book § 13-5, which provides [in relevant part]: Upon motion by a party from whom discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had . . . (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters . . ." (Internal quotation marks omitted.) Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 221-22 n. 59, 884 A.2d 981 (2005). The court must first determine whether the moving party has demonstrated "good cause" for the issuance of the protective order. This finding is to be determined from the facts and circumstances of the situation presented. The court has substantial discretion in this matter. See generally Carrier Corporation v. The Home Insurance Company, Superior Court, judicial district of Hartford, Docket No. CV 88 352383 (February 11, 1992, Schaller, J.) ( 6 Conn. L. Rptr. 3). "Good cause has been defined as a sound basis or legitimate need to take judicial action . . . Good cause must be based upon a particular and specific demonstration of fact, as distinguished from stereotyped and conclusory statements." (Citation omitted; internal quotation marks omitted.) Welch v. Welch, 48 Conn.Sup. 19, 20, 828 A.2d 707 [ 34 Conn. L. Rptr. 171] (2003).
Turning first to the defendant's argument that the deposition is inappropriate because it elicits expert testimony from an individual that has not been disclosed as an expert witness, it should be noted that "[t]here is no Practice Book rule that permits such expert opinion questions in a deposition prior to their disclosure as experts. On the other hand the Practice Book contains no rule that prohibits a plaintiff from eliciting expert opinions in the deposition of defendant medical providers in medical malpractice cases." Kekelik v. Hall-Brooke Hospital, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 980169297 (December 15, 2000, Tierney, J.) ( 29 Conn. L. Rptr. 136). Practice Book § 13-4, however, does provide in pertinent part: "Discovery of facts known and opinions held by experts, unless otherwise discoverable under the provisions of Section 13-2 and acquired or developed in anticipation of litigation or for trial, may be obtained only as follows: (1)(A) A party may through interrogatories require any other party to identify each person whom the other party expects to call as an expert witness at trial, to state the subject matter on which the expert is expected to testify, and to state the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion. (B) Unless otherwise ordered by the judicial authority upon motion, a party may take the deposition of any expert witness disclosed pursuant to subdivision (1)(A) of this rule in the manner prescribed in Section 13-26 et seq. governing deposition procedure generally." (Emphasis added.)
It is established law in Connecticut in medical malpractice cases that the plaintiff's obligation to provide expert testimony can be fulfilled by declaring defendant medical providers as plaintiff's experts. No independent expert is necessary. Slimak v. Foster, 106 Conn. 366, 371, 138 A. 153 (1927). Furthermore, "Practice Book Sec. 220(A)(1) [now Practice Book § 13-4] employs the term `expert witness' and does not draw a distinction between treating and independent experts." Perez v. Mt. Sinai Hospital, 7 Conn.App. 514, 518, 509 A.2d 552 (1986).
The requirement of disclosure pursuant to Practice Book § 13-4 prior to eliciting expert testimony from a nontreating doctor has not been addressed by an appellate court. In a medical malpractice action against a hospital, however, the Superior Court has held that the opinions and judgments of defendant's experts who were plaintiff's attending physicians and nurses were discoverable, but Practice Book § 220 [now Practice Book § 13-4] disclosure was not required prior to a plaintiff's commencement of the deposition process. Matzkevich v. Waterbury Hospital Health Center, 41 Conn.Sup. 373 (1988); see also Kekelik v. Hall-Brooke Hospital, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 980169297 (December 15, 2000, Tierney, J.) ( 29 Conn. L. Rptr. 136) ("the plaintiff is entitled to use the defendant's treating physician's opinion to establish the standard of care, breach of that standard and proximate cause") (Emphasis added.). In reaching this conclusion, the court in Matzkevich noted that in cases involving a claim for medical malpractice, "it is axiomatic that numerous health-care experts, agents of the named defendant, who formulated professional opinions and made professional judgments in providing care to the plaintiffs, are necessarily implicated." Id., 375. The court also found that each deponent was "intimately connected with the process of health care received by the plaintiffs . . . [and was] directly involved in the treatment received by the plaintiffs or [was] responsible for hospital policies and procedures affecting the plaintiffs' treatment." Id., 374.
Practice Book § 220 has since been replaced by the current provision addressing disclosure of experts as found in Practice Book § 13-4.
The facts of the present case, however, are distinguishable from the situation discussed by the court in Matzkevich. Unlike Matzkevich and Kekelik, the plaintiff here sought to elicit expert testimony from a doctor that was not involved in the decedent's treatment. Therefore, the policy concerns raised in Matzekevich to support the court's decision to circumvent the disclosure provisions of the Practice Book are not applicable. Carius is not a treating physician, and the plaintiff has other means available to discover the evidence she seeks to obtain from Carius. Based on the facts and circumstances of this case, this court finds that the defendant has exhibited good cause to support the grant of the protective order.
Furthermore, regarding the plaintiff's argument in her motion for articulation that the plaintiff sought alternative relief to limit the scope of the deposition, the court notes that although it is within the court's discretion to allow the deposition to go forward with limitations; Practice Book § 13-5(4); the fact that the defendant argued for this approach in the alternative does not limit the court's discretion. Adequate alternative sources exist and the deposition of Carius is unnecessary because he has no independent knowledge of the decedent's treatment; for this reason, the defendant's motion for a protective order is granted.
The court need not address the defendant's alternative arguments in support of the protective order, having already found that adequate grounds exist to grant the motion.