Opinion
No. HHD X 03 CV 02 4022076 S
October 24, 2007
MEMORANDUM OF DECISION ON MOTION TO SET ASIDE VERDICT
The plaintiff has filed a motion to set aside the verdict that was accepted and recorded on June 28, 2007. The parties have filed memoranda and the court heard oral argument on September 17, 2007. While in her motion the plaintiff raised a number of grounds for setting aside the verdict, she has briefed and argued only two of those grounds. The plaintiff first claims that the court should set aside the verdict because the court failed to poll the jury upon the plaintiff's request in violation of Practice Book § 16-32. The plaintiff also argues that the court erred in charging the jury that they must find that one of the correctional employees violated Bryant Wiseman's civil rights in order to find supervisory liability on the part of the commissioner of correction, John Armstrong.
Practice Book § 16-31 provides: "Subject to the provisions of Section 16-17, the judicial authority shall, if the verdict is in order and is technically correct, accept it without comment." Practice Book § 16-32 provides, in relevant part: "Subject to the provisions of Section 16-17, after a verdict has been returned and before the jury have been discharged, the jury shall be polled at the request of any party or upon the judicial authority's own motion."
At the conclusion of the trial, the jury returned a verdict in favor of the defendants. The court accepted the verdict, thanked the jurors for their service and discharged the jury. The plaintiff's counsel then requested that the jury be polled. The court denied that request.
In support of her motion, the plaintiff cites to State v. Pare, 253 Conn. 611, 755 A.2d 180 (2000), in which the Connecticut Supreme Court found that in the context of a criminal case, the identical Practice Book rule, § 42-31, is mandatory, and a violation of § 42-31 is not subject to harmless error analysis, but, rather, requires automatic reversal of a defendant's conviction. In a criminal case, "because the purpose of permitting an individual poll is to protect the accused's constitutional right to an acquittal in the absence of the full consensus of each juror, the denial of a timely request to poll is of substantial and unique magnitude." State v. Pare, supra, 253 Conn. 236.
The court finds that the same constitutional considerations expressed in State v. Pare do not exist in the context of a civil case. In this case, even if the provisions of Practice Book § 16-31 are mandatory, the court finds that its denial of the plaintiff's request to poll the jury was harmless. The jury in this case did not indicate any confusion regarding the charge or lack of unanimity in the course of their deliberations and the eleven-page form containing the interrogatories and verdict shows no indication of any inconsistencies. The plaintiff has made no argument that the denial of her request to poll the jury affected the outcome of the trial. The court will not set aside the verdict on this ground.
The plaintiff's other argument is that the court erred by failing to charge the jury that it could find Commissioner Armstrong liable on the failure to train and other supervisory liability counts without first finding one or more of the other defendants or department of corrections employees liable for excessive force or deliberate indifference. The plaintiff filed "Supplemental Proposed Jury Instructions" on June 20, 2007. This filing contained the following proposed instructions regarding Commissioner Armstrong's liability: "If you find one or more of the named custody officer defendants liable for using excessive force against Bryant Wiseman, you may proceed to the claims against defendant Commissioner Armstrong for excessive force. If you find one or more of the named custody officer defendants and/or Dr. Hoffler liable for deliberate indifference to Bryant Wiseman's serious mental health needs, you may proceed to the claims against defendant Commissioner Armstrong for deliberate indifference to Mr. Wiseman's serious mental health needs." (Plaintiff's Supplemental Proposed Jury Instructions, pp. 3-4.) The plaintiff further proposed: "Even if you do not find one or more of the named custody officer defendants or Dr. Hoffler liable for deliberate indifference to Bryant Wiseman's serious mental health needs, you may proceed to the claims against defendant Commissioner Armstrong for deliberate indifference if you find that one or more other Department of Correction employees were deliberately indifferent to Mr. Wiseman's serious mental health needs. These employees include Nurse Linda Messenger, Developmental Specialist Susan Wright and Psychiatric Social Worker Associate George Hajjar" (Plaintiff's Supplemental Proposed Jury Instructions, p. 4.)
The court's jury instructions contain substantially similar language to that in the plaintiff's supplemental proposed jury instructions. The court charged the jury as follows: "If you find one or more of the correctional officer defendants liable for using excessive force against Mr. Wiseman, you must then determine whether the plaintiff has also demonstrated a basis for recovery against Commissioner Armstrong." The court also instructed the jury: "If you find one or more of the correctional officer defendants or Dr. Hoffler liable for deliberate indifference to Mr. Wiseman's serious medical or mental health needs, you may proceed to the claims against Commissioner Armstrong for deliberate indifference to Mr. Wiseman's serious medical or mental health needs. Even if you do not find one or more of the correctional officers or Dr. Hoffler liable for deliberate indifference to Mr. Wiseman's serious medical or mental health needs, you may proceed to the claims against Commissioner Armstrong if you find that one or more other department of correction employees were deliberately indifferent to Mr. Wiseman's serious mental health needs. These other department of correction employees include nurse Linda Messenger, developmental specialist Susan Wright and psychiatric social worker associate George Hajjar."
The plaintiff filed a proposed verdict form on June 20, 2007. The three questions in Part IV of the plaintiff's proposed verdict form regarding John Armstrong's liability regarding John Armstrong are substantially similar if not identical to the wording of the three questions contained in Part IV of the verdict form completed by the jury.
The court finds that its charge, and the interrogatories submitted to the jury, are not inconsistent with the plaintiff's supplemental proposed jury instructions or interrogatories contained in the plaintiff's proposed verdict form. The court will not set aside the verdict on this ground.
For all the forgoing reasons, the plaintiff's motion to set aside the verdict and for new trial is denied.
So ordered
MEMORANDUM OF DECISION ON MEDICAL MALPRACTICE CLAIM
The plaintiff, Elaine Wiseman, administrator of the estate of Bryant Wiseman, filed an eight-count third amended complaint against the defendants, State of Connecticut ("State"), Commissioner of Correction John Armstrong, and various corrections officers and medical personnel at Garner Correctional Institute ("Garner"), claiming that the defendants failed to properly care for Bryant Wiseman, a mentally ill inmate who died while incarcerated at Garner in November 1999. Seven of the eight counts of the amended complaint were tried to a jury, who returned a verdict for the defendants on June 28, 2007. The remaining count, a medical malpractice action against the State, was tried to the court. The court heard the testimony from the parties' witnesses during the jury trial and the parties submitted proposed findings of fact and conclusions of law. The court heard oral argument on September 17, 2007.
The claims commissioner granted permission to sue the State for medical malpractice.
The court finds the following facts. Bryant Wiseman was mentally ill, and at the time of his death he had been diagnosed as suffering from paranoid schizophrenia. Bryant Wiseman was an inmate on the F Block at Garner. F Block housed the lowest functioning mentally ill inmates. Nursing coverage was assigned twenty-four hours a day, and psychiatric social workers and a developmental specialist were also assigned to F Block. On November 17, 1999, Bryant Wiseman died while being restrained by correctional staff after striking one or more of them as they conducted a strip search before admitting him to the inpatient medical unit ("IPM") after he assaulted another inmate.
Dr. Reginald Hoffler was a psychiatrist, employed by the UCONN Correctional Managed Care program, and was part of Bryant Wiseman's treatment team. Hoffler was the psychiatrist primarily responsible for treating Wiseman. Psychiatric social worker George Hajjar, nurse Linda Messenger and developmental specialist Susan Wright were also members of Wiseman's treatment team. Wiseman was incarcerated at the Connecticut Department of Correction for several years before he died on November 17, 1999.
Hoffler knew that Wiseman required anti-psychotic medication. Prior to November 17, 1999, and during the course of his incarceration, Wiseman was generally noncompliant with his medications, occasionally decompensated, occasionally became aggressive, was occasionally restrained by correctional staff without resistance, and on two occasions had medications administered against his will. These occasions are documented in various clinical record entries by the mental health staff Hoffler was aware that on one or more occasions, Wiseman refused to take his prescribed medications, had been aggressive and had subsequently been given medications.
In October 1999, Hoffler ordered that Wiseman be confined to his cell and noted that he had a history of "extreme agitation" and that he is a "danger to self or others when in psychotic state." In October 1999, Wiseman spent several days in the IPM and was discharged back to F Block on October 20, 1999. In October 1999, Wiseman took only a few of his prescribed dosages of medication, and he took no medication in November 1999. On November 1, 1999, Hoffler prescribed Prolixin for two weeks and then ordered that it be discontinued if Wiseman was not compliant with the medication.
On November 16, 1999, Hoffler saw Wiseman in the stairwell between the two levels of the housing unit. He had a two-to three-minute conversation with Wiseman, and testified that he wanted him to see another psychiatrist the next day. He did not write a note in the chart to that effect and did not tell any other staff member. Hoffler did not confine Wiseman to his cell or order an immediate psychiatric evaluation or take steps to forcibly medicate Wiseman.
On the night of November 16, 1999, Wiseman was seen by psychiatric social worker George Hajjar after Wiseman was discovered screaming and banging in his cell. Hajjar noted that he was possibly decompensating or having nightmares, but he was presently stable. Hajjar noted that the nurse should refer Wiseman to a psychiatrist the next morning.
On the morning of November 17, 1999, correctional officer James Santopietro observed that Wiseman was "acting bizarre." He noted this in the log book and informed developmental specialist Susan Wright and nurse Linda Messenger, who observed Wiseman and found him to be stable. Wiseman was one of eight to ten inmates who went to a community meeting run by Wright that morning. At the meeting, he did not verbalize much, but this was not unusual for him.
At approximately 12:40 p.m., on November 17, 1999, Wiseman assaulted another inmate and voluntarily submitted to restraint by correctional staff. He was escorted in handcuffs to a cell in the IPM to be strip searched before his admission to the IPM. The correctional officers present in the cell for the strip search testified that Wiseman was ordered to remove his shoes and that he started to move as if to do so, but then suddenly jumped up and struck one of the correctional officers. During the efforts of the correctional officers to restrain Wiseman, he was cuffed with his hands behind his back and shackled at the ankles with leg irons.
At some point after Wiseman was restrained at the wrists and ankles, he vomited. At the time that Wiseman vomited, he was not capable of being resuscitated. At approximately 1:16 p.m., Wiseman was transported by ambulance to the emergency department at Danbury Hospital, where he was pronounced dead at 2:01 p.m. The medical examiner found that the cause of death was sudden death during restraint.
The plaintiff claims that the State is liable for medical malpractice in that it breached its duty to provide adequate psychiatric care and supervision to Wiseman, and that breach was a substantial factor in causing his injury and death. The plaintiff claims that the State is liable for medical malpractice both on an "entity" theory and an "agency" theory. On the entity theory, the plaintiff argues that the State did not provide adequate and sufficient personnel with the requisite knowledge and skill, and adequate and sufficient facilities and policies and practices, to treat psychiatric patients such as Wiseman in 1999. On the agency theory, the plaintiff argues that the State is vicariously liable for the negligent acts of its employees, including, but not limited to, the employees specifically named in the third amended complaint.
The State claims that the plaintiff has failed to establish that any state employees or agents were negligent in their care and treatment of Wiseman. The State further argues that even if the court finds that State medical providers were negligent, the plaintiff cannot establish a causal relationship between any negligent acts or failure to act and the resulting injury. The State claims that the plaintiff cannot establish that any alleged negligence of the State or its personnel was a substantial factor in causing Wiseman's death.
To prevail in a medical malpractice claim, the plaintiff must prove the following elements by a preponderance of the evidence: "(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." Hayes v. Camel, 283 Conn. 475, 484, 927 A.2d 880 (2007).
On an entity level, the plaintiff claims that F Block lacked adequate and proper staffing, and that the department of correction did not provide adequate training and policies concerning proper communication between custody and mental health staff when dealing with mentally ill inmates. The only evidence pointed to by the plaintiff in support of her inadequate staffing claim was the testimony of Hoffler, who testified that F Block definitely needed more mental health workers and if there had been more staff members or another doctor on F Block, it would be better and safer for everybody. The plaintiff, however, does not connect this alleged lack of adequate staffing with her claim that the State breached the standard of care. In other words, the plaintiff has not shown that if F Block had a larger staff, the clinical judgments made by that staff regarding Bryant's care and treatment in the days and hours preceding his death would have been any different. Furthermore, the plaintiff did not present any evidence that the staffing level violated any constitutional, statutory or policy standards. The court finds that any lack of adequate or proper staffing on F Block did not result in a breach of the standard of care with respect to the State's care and treatment of Bryant Wiseman.
The plaintiff also claims that the State's lack of training and policies concerning mentally ill inmates and proper communication between custody and mental health staff after a "Code Blue" emergency involving an assault is alone sufficient to support a plaintiff's verdict on the malpractice claim. While the plaintiff elicited some testimony from the State's expert, Dr. Metzner, that the amount of training offered by the department of correction and a lack of communication between custody and mental health staff is troubling, the plaintiff offered insufficient evidence to show, by a preponderance of the evidence, that the standard of care in this case was violated by any lack of training or communication. The failure of the custody staff and the mental health treatment team to communicate regarding Wiseman's psychiatric status and behavior prior to conducting the strip search did not violate the standard of care. As noted by the State, the correctional staff that responded to the incident involving Wiseman knew, when they were called to F Block, that they were responding to a "Code Blue" on the block that housed the lowest functioning mentally ill inmates. The State's experts testified that they knew of no correctional systems in this country that require a mental health consultation prior to a strip search.
With respect to any liability on the part of the State for the negligent acts of Wiseman's mental health treatment team members, the court has reviewed the documentary evidence submitted by the parties and the testimony of the employees and the expert witnesses, and finds that the plaintiff has not met her burden of proving, by a preponderance of the evidence, that any of the members of the treatment team breached the standard of care. The decisions and actions of the staff in the days and hours leading up to Wiseman's death were appropriate clinical judgments in response to his deteriorating mental condition. While it is easy to say in hindsight that Wiseman should have been admitted sooner to the IPM, confined to his cell or forcibly medicated, the evidence shows that his deteriorating condition was being closely monitored by the staff and that his behavior had not reached a level where more assertive or intrusive treatment measures were required.
The plaintiff makes several claims of negligence specific to Hoffler, including ordering Wiseman's medication discontinued if he continued to refuse it, failing to order that Wiseman see a psychiatrist on the morning of November 17, 1999, and failing to confine Wiseman to his cell, admit him to the IPM or involuntarily medicate him prior to the time when he assaulted the other inmate. With respect to the order to discontinue the medication, Wiseman had been generally noncompliant with respect to taking his medication for some time. He took only a few doses in October and none in November. Hoffler attempted to engage him to accept medication, but Wiseman had a right to refuse medication. Hoffler and other members of the rest of the treatment team knew Wiseman had been refusing the medication and he was being watched closely as his condition deteriorated. There was no indication that medication would not have been immediately ordered for Wiseman by Hoffler or another psychiatrist if Wiseman had indicated a willingness to take medicine or Hoffler or another staff member was able to convince him to take medication. Hoffler's order to discontinue the medication if Wiseman was noncompliant did not breach the standard of care.
Wiseman was not seen by a psychiatrist on the morning of November 17, 1999, despite Hoffler's testimony that he wanted him to be seen that morning (but did not write it down as an order) and Hajjar's notation that he should see a psychiatrist in the morning. Hoffler's meeting with Wiseman on November 16, 1999, had been a chance encounter in the stairwell and was not a psychiatric consultation. The mental health staff, including Hoffler, had frequent interactions with the inmates on F Block, and they were not required to document every encounter with an inmate. The court finds that while Wiseman should have seen a psychiatrist in the morning, he was being monitored by members of the treatment team during the morning, and if he had exhibited behavior requiring attention by a psychiatrist, the medical staff present on the unit could have called the psychiatrist on duty to see him. Hoffler did not violate the standard of care by failing to write an order that Wiseman see a psychiatrist in the morning.
As described by Dr. Burns, one of the State's experts, the symptoms of paranoid schizophrenia wax and wane. While Wiseman had displayed behavior that was cause for concern, he was able to attend the community meeting and perform his job functions in the laundry on the morning of November 17, 1999. His behavior was not disruptive or out of control. It was not unreasonable for the treatment team to attempt to leave Wiseman in the familiar, less restrictive setting of F Block for as long as possible before taking more drastic measures to treat his condition. Furthermore, the plaintiff presumes that if Wiseman had seen a psychiatrist during the morning of November 17, the psychiatrist would have decided to take more assertive treatment measures, such as admitting Wiseman to the IPM or involuntarily medicating him, but the court finds that another psychiatrist could have reasonably agreed with the approach that was taken at the time, which was to leave Wiseman on F Block and watch him. The court finds that the decisions made by the treatment team members on November 16 and 17, 1999 were appropriate judgment calls, which were reasonable under the circumstances and did not violate the standard of care. The plaintiff has not met her burden of proving, by a preponderance of the evidence, that the care and treatment of Wiseman by any member of the treatment team violated the standard of care.
Furthermore, even if the court were to find that the conduct of any of the State employees breached the standard of care, the court finds that any negligence on the part of the mental health treatment team was not the proximate cause of Wiseman's injuries or death. In order to prevail upon a medical malpractice claim, the plaintiff is "required to establish that the defendant's negligent conduct was a cause in fact and a proximate cause of the decedent's injuries and death . . . The test for cause in fact is [w]ould the injury have occurred were it not for [the defendant's] negligent . . . conduct . . .? Proximate cause is defined as [a]n actual cause that is a substantial factor in the resulting harm . . . The substantial factor test, in truth, reflects the inquiry fundamental to all proximate cause questions; that is, whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant's negligence." (Citation omitted; internal quotation marks omitted.) Boone v. William Backus Hospital, 272 Conn. 551, 571, 864 A.2d 1 (2005).
"[I]t is the plaintiff who bears the burden to prove an unbroken sequence of events that tied [the] injuries to the [defendant's conduct] . . . The existence of the proximate cause of an injury is determined by looking from the injury to the negligent act complained of for the necessary causal connection . . . This causal connection must be based upon more than a conjecture and surmise." (Citations omitted; emphasis in original: internal quotation marks omitted.) Weigold v. Patel, 81 Conn.App. 347, 354-55, 840 A.2d 19, cert. denied, 268 Conn. 918, 847 A.2d 314 (2004); see also Malloy v. Colchester, 85 Conn.App. 627, 633-34, 858 A.2d 813, cert. denied, 272 Conn. 907, 863 A.2d 698 (2004).
In this case, the court finds that the mental health staff was aware that Wiseman had become violent or aggressive and had been involved in altercations with other inmates in the past when he did not take his medication. The parties presented no documentation or testimony, however, that Wiseman had ever been aggressive or resistant toward the correctional staff. It was the policy to strip search inmates before they were admitted to the IPM, for their own safety and for the safety of the other patients and staff. Wiseman had been strip searched every time he was admitted to the IPM and would have been strip searched if he was admitted to the IPM earlier. He had never resisted before. Indeed, in this case, after he assaulted the other inmate, he did not resist as he was led away by the correctional staff, and he showed no indication that he would strike or otherwise resist the correctional staff during the strip search.
The court finds that it was not foreseeable that any failure by the mental health staff to take earlier measures to forcibly medicate Wiseman, confine him to his cell or admit him to the IPM would result in his death as a result of restraint by correctional staff The court has considered the documentary evidence and the testimony of the employees and experts presented by both parties and concludes that, even if the plaintiff had shown that the mental health staff breached the standard of care, the plaintiff has not met her burden of showing, by a preponderance of the evidence, that any breach of that standard of care by any member of the mental health staff in their care or treatment of Wiseman's paranoid schizophrenia was the proximate cause of his death.
For all of the foregoing reasons, the court finds in favor of the defendant State on count eight of the third amended complaint.
So ordered