Opinion
CV136019304
11-09-2017
Laura Kos et al. v. Lawrence & Memorial Hospital et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION TO SET ASIDE THE JURY VERDICT (#242.00)
Timothy D. Bates, J.
INTRODUCTION
" In Connecticut, a jury's verdict is normally accorded great deference . . . Nevertheless, it is the trial court's duty to set aside a verdict when it does manifest injustice and is . . . palpably against the evidence." (Citations omitted; internal quotation marks omitted.) Fox v. Colony T.V. & Appliance, Inc., 37 Conn.App. 453, 455, 656 A.2d 705 (1995).
" A trial court has the inherent power to set aside a verdict where it finds it has made, in its instructions, rulings on evidence, or otherwise in the course of the trial, a palpable error which was harmful to the proper disposition of the case and probably brought about a different result in the verdict . . . It is proper for a trial court, using due caution, and in the exercise of its discretion, to set aside a verdict when satisfied that . . . its rulings on evidence were erroneous and that those erroneous . . . rulings were consequential enough to have had a substantial effect on the verdict." (Citations omitted; internal quotation marks omitted.) Melo v. Spencer, 62 Conn.App. 727, 730, 774 A.2d 217 (2001). " Our case law emphasizes, however, that this power vested in the trial court is to be exercised with caution." Hamernick v. Bach, 64 Conn.App. 160, 164, 779 A.2d 806 (2001).
" The decision to set aside a verdict is a matter within the broad legal discretion of the trial court and will not be disturbed unless there has been a clear abuse of that discretion." (Citation omitted; internal quotation marks omitted.) Melo v. Spencer, supra, 62 Conn.App. 729-30. " Absent an abuse of discretion, [our Appellate Court] will uphold the denial of a motion to set aside the verdict." Hamernick v. Bach, supra, 64 Conn.App. 163.
I
CROSS EXAMINATION
" In the context of a civil case, our Supreme Court, in accepting a common law right to cross-examination, stated [t]he right of cross-examination is not a privilege but [is] an absolute right . . . It is only after the right of cross-examination has been substantially and fairly exercised that the allowance of cross-examination becomes discretionary with the trial court." (Citations omitted; internal quotation marks omitted.) Dubreuil v. Witt, 65 Conn.App. 35, 40-41, 781 A.2d 503 (2001).
A
Videotape Deposition and Cross Examination of Dr. Girard
The plaintiffs claim that by allowing the defense to cross examine the defendant, Dr. Girard, after the plaintiff had offered to play the videotape of her deposition testimony, the court made a harmful error, which calls for a new trial.
The defendants respond that they had subpoenaed Dr. Girard to be present in court so that they could cross examine her after plaintiffs displayed the video of her deposition testimony. The court ruled in favor of the defense and stated that after the plaintiffs played the video, the defense could engage in cross examination of that deponent in court, provided such cross examination would be limited to the facts and opinions expressed in the deposition. In response to this ruling, the plaintiffs did not play the videotape or call Dr. Girard to testify, but elected to cross examine her after she testified for the defense.
The court notes that allowing testimony by way of a taped video deposition is an exception to the general rule calling for live testimony. The plaintiffs have not cited any section of the Practice Book prohibiting live cross examination following a videotape of a deposition of the plaintiffs' treating doctor. The plaintiffs argue that allowing live cross examination prevents the plaintiffs from presenting the case as they wish. However, in taking this position, the plaintiffs are changing an exception to the requirement for live testimony into a preclusion of live testimony.
Practice Book § 13-31(a) provides in relevant part: " At the trial of a civil action . . . any part or all of a deposition, so far as admissible under the rules of evidence applied as though the witness were there present and testifying, may be used against any party who was present or represented at the taking of the deposition or who had reasonable notice thereof, in accordance with any of the following provisions . . . (2) The deposition of any physician . . . licensed under the provisions of the General Statutes may be received in evidence in lieu of the appearance of such witness at the trial or hearing whether or not the person is available to testify in person at the trial or hearing." (Emphasis added.)
The plaintiffs have the right to present recorded testimony, but that does not prevent the defendant from subpoenaing the deposed witness and cross examining her before the jury after the playing of the videotape. It was ultimately the plaintiffs' election not to play the recorded testimony, once the court ruled that live cross examination would be permitted following the playing of the videotape. The plaintiffs were in no way precluded from playing their video.
In support of their argument, the plaintiffs cite Finch v. Weiner, 109 Conn. 616, 145 A.31 (1929), for the proposition that live cross examination should have been precluded. However, the Finch holding was based on objections to cross examination regarding issues that were not raised on direct, not the cross examination itself. Id., 619-20.
In Wilhelm v. Czuczka, 19 Conn.App. 36, 41, 561 A.2d 146 (1989), the Appellate Court noted, " It is elementary that cross-examination of a witness immediately follows direct examination of that witness." To disallow live cross examination of a deposed witness would violate this elementary and critical expectation.
B
Limitation of Cross Examination of Dr. Girard Regarding Possibility of Fourth Degree Laceration
The plaintiffs claim that the court engaged in reversible error when it limited the plaintiffs' cross examination of Dr. Girard to the subject matter of her direct testimony. Specifically, the plaintiffs argue that while the direct testimony related to her diagnosis of a third degree laceration, the plaintiffs should have been able to cross examine her regarding the possibility that the defendant missed an unrepaired fourth degree laceration resulting in a fistula.
Dr. Girard testified on direct as a fact witness, and her testimony was limited to her treatment of Ms. Kos. Dr. Girard acknowledged on cross examination that the fistula became apparent sometime after the surgery, and the patient was then forced to undergo significant medical treatment to eliminate it.
The defendants argue that the court was correct in limiting the plaintiffs' scope of cross examination to Dr. Girard's direct testimony. The defendants point out that the testimony, if allowed, would have been " nothing more than a back door attempt to elicit testimony of the issue of causation, which was not within the scope of defense counsel's direct examination." The defense submitted that Dr. Girard testified only to what she saw, what she did and how she made a diagnosis on August 19th. After the initial surgery, Dr. Girard was not the treating physician, had no personal knowledge of events that took place at the time and the line of questioning was covered by other treating physicians' testimony at trial.
Given these factors, the plaintiff had ample opportunity to cross examine Dr. Girard, based on her direct testimony.
" [B]efore a party is entitled to a new trial because of an erroneous evidentiary ruling, he or she has the burden of demonstrating that the error was harmful . . . When determining that issue in a civil case, the standard to be used is whether the erroneous ruling would likely affect the result." (Citation omitted; internal quotation marks omitted.) Dubreuil v. Witt, supra, 65 Conn.App. 45.
II
REASONABLE ALTERNATIVES
The plaintiffs presented expert evidence that prior to commencing the surgery performed by Dr. Girard, an extensive physical inspection of the rectum and vagina should have been performed to determine if there was an opening in the birth canal that directly connected the bowel and vagina, that is a fistula. The plaintiffs' expert, Dr. Young, affirmed that failure to make that inspection can result in an infection that occurred in this case.
However, Dr. Girard testified that she did not perform such an inspection before commencing surgery to repair the vagina. Rather, she said, due to risk factors, she preferred to do a rectal exam after the episiotomy was completed. If, after performing the inspection, she noted a fistula connecting the vagina and the rectum, she would take apart the repairs and deal with the infection then.
The plaintiffs' expert, Dr. Ling, endorsed this approach, stating " putting a gloved finger in the rectum before you do the repair is actually frowned upon by a lot of folks . . . Because bad things can happen when you put your finger in the rectum . . ." He stated that such a procedure results in more exposure to bacteria and is likely to cause an infection by itself. (Ex. CT 98-99.)
Dr. Ling, therefore, endorsed the approach taken by Dr. Girard, who had inspected the plaintiff after the surgery and found no evidence, at that time, of a fistula. In her testimony, Dr. Girard asserted that Ms. Kos' rectovaginal fistula was likely caused by a " complication" in the episiotomy. Although she admitted that it was possible that an episiotomy repair can lead to a rectovaginal fistula, Dr. Girard responded that in her opinion " that's not what happened in this case."
In sum, it appears that two approaches to an episiotomy are recognized by experts. The plaintiffs' expert prefers thorough inspection of the vagina and rectum prior to surgery and the second approach, preferred by defendants' expert, avoids inspection of the injured area prior to surgery, and rather makes an inspection of the area after surgery.
Both appear to be reasonable alternatives, and the fact that the one chosen by the defendant in this case did not detect the fistula immediately after the surgery, does not make Dr. Girard's decision malpractice.
The court in its original jury instructions and in its reply to a note by the jury inquiring about these different opinions instructed the jury that it could accept one of these two expert opinions or both, depending on how they weigh the evidence. The plaintiff took exception to these instructions.
In Wasfi v. Chaddha, 218 Conn. 200, 211, 588 A.2d 204 (1991), the Supreme Court endorsed the instruction that the jury could find both approaches reasonable over objections that it weakened the plaintiffs' proof and potentially suggests to the jury that both methods were reasonable. In placing both of these procedures before the jury, this court was following the instructions endorsed in Wasfi . The jury apparently determined that both approaches appeared to be within the standard of care even though they had obvious differences and, therefore, even though there was a subsequent infection, there was no malpractice.
CONCLUSION
For all of the foregoing reasons, the court denies the plaintiffs' motion to set aside the jury verdict.
The plaintiffs, despite their objections to the contrary, were able to enter through Dr. Girard's testimony considerable evidence regarding the development of the fistula. For instance, Dr. Girard testified that Laura Kos' medical report indicated her " breakdown of the repair." (Trans. 05-25-17, at 413.) Dr. Girard opined that rectovaginal fistula was likely caused by " a small complication of the episiotomy." Id., 144. Dr. Girard also admitted that an undiagnosed fourth degree laceration, rather than an infection or poor healing, could have caused a fistula, but she did not believe that is what happened in this case. Id., 138. Accordingly, it appears that the plaintiffs were given more than an ample opportunity to cross examine Dr. Girard, and any limitations of her testimony, if error, were harmless.