Opinion
No. CV 05 400 2998 S
June 7, 2010
MEMORANDUM OF DECISION
FACTS
This is a medical malpractice action wherein the plaintiff is Robert S. Sargis, Sr., Executor of the Estate of Cynthia Sargis, and the defendants are Terrence Donahue, M.D. and New Britain Surgical Group, Inc. This claim stems from an alleged failure to diagnose and treat timely a post-operative infection following laparoscopic umbilical hernia repair.
Robert S. Sargis, Sr., Executor, was substituted for Cynthia Sargis who had initiated this action and who died during its pendency. Her death is not a claim in this case.
After a jury trial, a verdict was rendered in favor of the plaintiff. The defendants have moved for judgment notwithstanding the verdict on the ground that the jury's verdict is against the evidence and the law.
DISCUSSION
In considering a motion for judgment notwithstanding the verdict, the court "must consider the evidence, and all inferences that may be drawn from the evidence, in a light most favorable to the party that was successful at trial . . . Judgment notwithstanding the verdict should be granted only if we find that the jurors could not reasonably and legally have reached the conclusion that they did reach." (Citations omitted.) Craine v. Trinity College, 259 Conn. 625, 635-36, 791 A.2d 518 (2002). "If, on the evidence as presented and under the pleadings, the jury could have reasonably found in accordance with the verdict as rendered, then it cannot be set aside as against the evidence." (Internal quotation marks omitted.) Birchard v. New Britain, 103 Conn.App. 79, 86, 927 A.2d 985, cert. denied, 284 Conn. 920, 933 A.2d 721 (2007). "If the jury, however, without conjecture could not have found established an element of the claim, the verdict on the claim cannot withstand a motion for judgment notwithstanding the verdict." (Citations omitted.) Craine v. Trinity College, supra, 636.
"The sifting and weighing of evidence is peculiarly the function of the trier. [N]othing in our law is more elementary than that the trier is the final judge of the credibility of witnesses and of the weight to be accorded to their testimony . . . The trier is free to accept or reject, in whole or in part, the testimony offered by either party." (Internal quotation marks omitted.) Smith Brook Farms, Inc. v. Wall, 52 Conn.App. 34, 37, 725 A.2d 987 (1999). "It [is] the jury's function to consider the evidence and testimony, giving weight to that which it deemed credible and persuasive and discarding that which it deemed implausible and weak." Wilson v. Kent Realty, Superior Court, judicial district of Litchfield, Docket No. CV 99 0081115 (June 26, 2002, Cremins, J.). "We note that `[i]t is not the function of this court to sit as the seventh juror when we review the sufficiency of the evidence . . . rather, we must determine, in the light most favorable to sustaining the verdict, whether the totality of the evidence, including reasonable inferences therefrom, supports the jury's verdict . . . In making this determination, [t]he evidence must be given the most favorable construction in support of the verdict of which it is reasonably capable." (Internal quotation marks omitted.) Bosco v. Regan, 102 Conn.App. 686, 696, 927 A.2d 325, cert. denied, 284 Conn. 914, 931 A.2d 931 (2007). "The most favorable reasonable construction must be given to the circumstantial as well as to the direct evidence of what actually transpired." (Internal quotation marks omitted.) Elliott v. Larson, 81 Conn.App. 468, 475, 840 A.2d 59 (2004).
The defendants argue that the evidence adduced at trial is insufficient, as a matter of law, to support a finding that the alleged negligent actions or inactions of the defendants proximately caused the plaintiff's decedent's injuries and damages. Specifically, the defendants argue that the plaintiff failed to offer evidence, through requisite expert opinion testimony, sufficient to establish the required nexus between the alleged medical negligence and the claimed harm in order to support a verdict in favor of the plaintiff. The plaintiff counters that there was abundant evidence to support the jury's verdict. The plaintiff argues that the testimony of his expert witness, Dr. Gabor Kovacs, clearly and unequivocally expressed the requisite opinions so that the jury would have been able to determine that the defendants' negligence proximately caused or was a substantial factor in causing the plaintiff's injuries and damages.
The requisite standard of proof in a medical malpractice case is well settled. "[T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury . . . Generally, the plaintiff must present expert testimony in support of a medical malpractice claim because the requirements for proper medical diagnosis and treatment are not within the common knowledge of laypersons." (Internal quotation marks omitted.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 656, 904 A.2d 149; Boone v. William W. Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005).
"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, and the cases provide a helpful analytic framework for the claims in this case — that, as a result of the defendants' failure to diagnose and treat a post-operative infection, the infection was not eradicated and it spread, thereby causing injury to the plaintiff's decedent. The plaintiff and the defendants have employed such cases in presenting their arguments. "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; emphasis added.) Poulin v. Yasner, supra, 64 Conn.App. 745.
"[T]he [plaintiff] must first prove that had the standard of care been followed, there was a greater than 50 percent chance of avoiding the harm . . . The [plaintiff] must then prove that the decreased chance for survival or successful treatment more likely than not resulted from the defendant's negligence." (Citations omitted; internal quotation marks omitted.) Peterson v. Ocean Radiology Associates, P.C., 10 Conn.App. 275, 277-79, 951 A.2d 606 (2008). "In other words, the plaintiff must show that what was done or failed to be done probably would have affected the outcome." (Internal quotation marks omitted.) LaBieniec v. Baker, 11 Conn.App. 199, 207, 526 A.2d 1341 (1987).
"[I]t 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." (Emphasis added; internal quotation marks omitted.) Boone v. William W. Backus Hospital, supra, 272 Conn. 574.
"Although we acknowledge that an expert opinion need not walk us through the precise language of causation, there must be more than mere speculation or conjecture. State v. Nunes, 260 Conn. 649, 672-73, 800 A.2d 1160 (2002); Struckman v. Burns, 205 Conn. 542, 554-55, 534 A.2d 888 (1987). `To be reasonably probable, a conclusion must be more likely than not . . . Whether an expert's testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert's testimony.' (Citation omitted.) [ Id., 555]; see, e.g., State v. Weinberg, 215 Conn. 231, 245, 575 A.2d 1003 (`[a]n expert witness is competent to express an opinion, even though he or she may be unwilling to state a conclusion with absolute certainty, so long as the expert's opinion, if not stated in terms of the certain, is at least stated in terms of the probable, and not merely the possible' [internal quotation marks omitted]), cert. denied, 498 U.S. 967, 111 S.Ct. 430, 112 L. Ed.2d 413 (1990); Aspiazu v. Orgera, 205 Conn. 623, 632-33, 535 A.2d 338 (1987) (`[w]hile we do not believe that it is mandatory to use talismanic words or the particular combination of magical words represented by the phrase reasonable degree of medical certainty [or probability] there is no question that, to be entitled to damages, a plaintiff must establish the necessary causal relationship between the injury and the physical or mental condition that he claims resulted from it' [citation omitted; internal quotation marks omitted])." Macchietto v. Keggi, 103 Conn.App. 769, 775-76, 930 A.2d 817, cert. denied, 284 Conn. 934, 935 A.3d 151 (2007).
Having reviewed the entire record, the court finds the plaintiff has failed to sustain his burden to prove by way of expert testimony that the defendants' actions, or in this case inactions, were a proximate cause of the decedent's injuries as a result of a loss of opportunity for successful treatment. Rather, Dr. Kovacs' testimony, while informative as to what should have been done by Dr. Donahue and why, failed to show that if what should have been done had been done it probably would have affected the outcome for Cynthia Sargis in this case. Based on the record before the court, the evidence presented is insufficient to remove from the realm of speculation the issues of whether the breach of the standard of care was the proximate cause of her injuries.
Examples of such testimony follow. "The standard would be to make sure the patient in the least continues with a regimen of oral antibiotics or possibly admit the patient to the hospital for intravenous antibiotics to prevent any further spread of that infection and to closely follow that patient up to make sure that there's been improvement or worsening of the situation." Kovacs Tr. At 21.
"Based upon a reasonable degree of medical certainty, I feel that a breach of medical — the standard of medical care was breached because there was a failure to fully appreciate the patient's condition in the sense that she was developing an infection and take the appropriate steps to eradicate the infection." Kovacs Tr. at 22.
"If you have a cellulitis, which is a superficial infection of the skin, if you don't treat it, obviously the infection is going to get worse and its going to invade the deeper tissues." Kovacs Tr at 26.
For the foregoing reasons, the court grants the defendants' motion for judgment notwithstanding the verdict. Judgment shall accordingly enter for the defendants.