Opinion
No. X02 CV 97-0150435-S
July 14, 2006
I. BACKGROUND
This medical malpractice case was filed by plaintiff Michelle DiLieto and her husband, Robert DiLieto, on February 7, 1997, with a return date of March 4, 1997. In the complaint Mrs. DiLieto alleged that the defendants, and their respective agents, were negligent in telling her that she had a form of uterine cancer when, in fact, she did not have cancer. As a result of the diagnosis, Mrs. DiLieto underwent surgery in which she had her reproductive organs and some pelvic lymph nodes removed. She claimed that the surgery should not have been necessary because she did not have cancer, and that she also suffered permanent nerve damage as a result of the surgery. The surgery was performed on May 3, 1995. Mrs. DiLieto was informed on February 16, 1996, for the first time, that she never had cancer.
The Trustee in Bankruptcy was substituted for Mrs. DiLieto, as plaintiff, on July 27, 2000, after a two-day evidentiary hearing before this court (Sheldon, J.). The matter was later tried and appealed to the Supreme Court. The Supreme Court reversed the judgment in favor of some of the defendants, and returned the matter for a new trial. The verdict as to one of the defendants, not named herein, was upheld.
The case was retried before a jury in 2005. On November 10, 2005, the jury returned a verdict in favor of the plaintiff against all named defendants in the total sum of $5,200,000.00. The jury awarded $1,000,000.00 dollars for the unnecessary removal of Mrs. DiLieto's uterus, ovaries, and fallopian tubes. The jury also awarded the sum of $3,500,000.00 for the permanent nerve damage which she sustained as a result of the operation. The jury further awarded the sum of $700,000.00 for the mental anguish which Mrs. DiLieto sustained while she thought that she had cancer, when, in reality, she never had the disease.
On December 7, 2005 the plaintiff filed a Motion for Judgment with the award of prejudgment interest. On December 21, 2005 the plaintiff filed a Motion for Taxation of Costs.
Defendants have objected to both of the plaintiffs' motions. On December 27, 2005 Defendants filed motions: (1) To Set Aside the Verdict and for a New Trial; (2) Judgment Notwithstanding the Verdict; and (3) Remittitur. Plaintiff has objected to all of the Defendants' Motions. On July 10, 2006 these motions were argued before the court. The court, after hearing the arguments of counsel, reserved decision on the matter.
II. LAW A. Standard of Review Related to a Motion for Judgment Notwithstanding the Verdict
In its consideration of a Motion for Judgment Notwithstanding the Verdict the court must consider the evidence in a light most favorable to sustaining the verdict. Tragakiss v. Dowling, 183 Conn. 72 (1981). The court must also determine whether, from the evidence and all reasonable inferences that flow from the evidence, the trier of fact could reasonably have found as they did. Maher v. Quest Diagnostics, Inc., et al., 269 Conn. 154 (2004). "The verdict will be set aside and judgment directed only if we find that the jury could not reasonably and legally have reached their conclusion." Edwards v. Tardif, 240 Conn. 610, 622 (1997).
B. Standard of Review Related to a Motion to Set Aside a Verdict
The question for a trial court, in considering a Motion to Set Aside a Verdict, is whether there was evidence that the jury could have reasonably credited, and from which it could have fairly reached its conclusions. Rickert v. Fraser, 152 Conn. 678, 681 (1965). The court must view the evidentiary record most favorably toward sustaining the verdict. Douglass v. 95 Pearl St. Corp., 157 Conn. 73, 77 (1968).
C. Standard of Review Related to a Motion for Remittitur
The court may order a Remittitur only if it concludes as a matter of law that the verdict is excessive. Presidential Capital Corp. v. Reale, 231 Conn. 500, 510 (1994). The court does not sit as a seventh juror with absolute veto power. Campbell v. Gould, 194 Conn. 35, 41 (1984). "The only practical test to apply to this verdict is whether the award falls somewhere within the necessarily uncertain limits of just damages or whether the size of the verdict so shocks the sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption." Oakes v. New England Dairies, Inc., 219 Conn. 1, 14 (1991).
D. Court's Review of Defendants' Motions
The court has reviewed the defendants' motions and the transcript testimony relating thereto. In its consideration of these motions the court has applied the above standards.
1. Statute of Limitations
Defendants claim that they are entitled to a judgment notwithstanding the verdict because (1) the claims were not made within the applicable statute of limitations period, and (2) that there was not legally competent evidence with which to sustain the verdict. Mrs. DiLieto underwent surgery on May 3, 1995. The final pathology report was issued on May 10, 1995. She was not informed that she did not have cancer until February 16, 1996. Defendants argue that, even if we assume that February 16, 1996 is the proper starting date, many of the allegations of negligence were not added until July 2, 1998, when a third amended complaint was filed. Plaintiffs argue that all of the allegations of negligence stem from the amended complaint dated September 11, 1997 and, therefore, the allegations of negligence relate back to a period within the statute of limitations. Plaintiffs argue that the later amendments merely combined or restated the same allegations that were presented earlier in the case.
Connecticut General Statutes Section 52-584 provides, in relevant part, that no action in negligence shall be brought but within two years when the injury is first sustained or discovered or in the exercise of reasonable care should have been discovered, and except that no such action may be brought more than three years from the act or omission complained of . . .". The three-year period has been referred to as the period of repose. Sherwood v. Danbury Hospital, 252 Conn. 193 (2000). It does appear to the court that the proper starting point for this analysis would be the date in which Mrs. DiLieto first learned that she never had cancer, which was February 16, 1996.
Connecticut courts have consistently held that the relation-back doctrine is to be "liberally interpreted" to permit amendment so long as the new allegations involve the same "transaction or occurrence" as the original claims, rather than a new cause of action. Giglio v. Connecticut Light Power Co., 180 Conn. 230, 239-40 (1980). A second prong of the theory is that the allegations must give fair notice of the core allegations of negligence such that relevant evidence can be preserved before it becomes stale. Alswanger v. Smego, 257 Conn. 58, (2001). Thus, in the Alswanger case the Supreme Court upheld a trial court ruling disallowing an amendment because the amendment had its basis in a different set of facts from the original complaint. The original complaint alleged that the defendants had performed surgery without informing the plaintiff of the material risks. The amendment, filed after the statute of limitations had expired, attempted to insert the fact that the plaintiff was never told that a resident would participate in the surgery. The Supreme Court held that the amended complaint inserted new facts into the case, even though the parties and the injuries were the same.
The court has compared all of the allegations contained in the various complaints. In reaching its conclusion, the court is mindful of the admonition that "the modern trend, which is followed in Connecticut, is to construe pleadings broadly and realistically, rather than narrowly and technically." Parsons v. United Technologies Corp., 243 Conn. 66, 83 (1997). The court finds that, at the very least, all of the allegations of negligence relate back to the amended complaint of September 11, 1997, which is well within the repose period.
Defendants argue that plaintiff's allegations relating to the time-period after May 10, 1995, are barred because they were not added until the Third Amended Complaint filed on July 2, 1998. The duration of Dr. Casper's negligence was changed from between "April 5, 1995 to May 10, 1995" to the time period between "April 5, 1995 to October 26, 1995". Dr. Edraki's (an employee of Yale School of Medicine) time period was changed from "May 3, 1995 to June 13, 1995", the last date he saw her postoperatively. The expanded time-frame allegations relate only to the claim that both Dr. Casper and Dr. Edraki breached their duty to tell Mrs. DiLieto that she did not have cancer after her surgery, an allegation that has been in the case since the original complaint was filed. The allegation did not allege any new or different act of negligence which would require the court to invoke the Alswanger decision. The amended complaint simply articulated the same act of negligence on each of the follow-up visits with the doctors. The court also finds that the defendants had sufficient notice of the claims so that the relation back theory may be applied. Both Dr. Casper and the doctors from Yale were represented by the same counsel.
The court finds that the allegations were sufficiently pleaded in the September 11, 1997 complaint. Therefore, the relation back doctrine applies. Since the court finds that February 16, 1996 is the proper starting date, the amendment is well within the statute of repose. In view of the court's ruling it is unnecessary for the court to consider either whether the statute may have been tolled, or whether the doctors may have had a continuing duty to disclose which would have extended the statute. It is also unnecessary for the court to decide if the defendants waived their claims regarding the statute of limitations by not requesting the court to charge the jury on the matter.
2. Sufficiency of Evidence
Defendants claim that the plaintiff failed to offer evidence of every specification of negligence against the various doctors. Therefore, they argue that even if one of the plaintiff's specifications of negligence as to a defendant should not have gone to the jury, that defendant is entitled to a new trial. Curry v. Burns, 225 Conn. 782, (1993). Upon review, the court finds that there was sufficient evidence submitted to prove each and every specification of negligence submitted to the jury. The court has reviewed every claim of negligence and compared it to the transcript in making this finding. However, one claim merits particular attention, since a significant portion of the arguments and briefs were devoted to it. Defendants claimed that there was no evidence of either negligence or the standard of care relating to Dr. Schwartz's (another employee of Yale University School of Medicine) supervision of Dr. Edraki. However, one of the plaintiff's experts, Dr. Shepard, testified regarding Dr. Schwartz, that "Dr. Schwartz was Dr. Edraki's supervisor and therefore, I believe that he should not have authorized or allowed Dr. Edraki to proceed with the pelvic lymph node dissection surgery in the absence of cancer being present in the uterus." In a medical negligence case, the plaintiff need not elicit a specific expression of an expert opinion that the defendant was negligent, so long as there is sufficient evidence to allow the jury to determine the applicable standard of care without speculation. Williams v. Chameides, 26 Conn.App. 818 (1992). Sufficient evidence was presented to allow the jury to determine the applicable standard of care, without speculation, through the testimony of Dr. Shepard.
Defendants have raised other claims relating to the court's rulings on evidence and part of the court's charge. The court, having previously explained its rulings on the record, feels that the prior explanations are sufficient. The court will, however, address two further points raised by the defendants in their argument. First, the defendants claim error in the fact that the court failed to charge the jury that this case was not an informed consent case. The court felt that such a charge would create the potential for confusion if an instruction were given on a non-issue. Traditionally, trial courts have been discouraged from using non-standard jury instructions because of the potential for confusion to the jury. Villar v. Pereiras, 588 So.2d 678 (Fla. 3d DCA 1991).
Prior to the case being submitted to the jury, plaintiff requested the opportunity to reopen his case for the sole purpose of having the court take judicial notice of the life expectancy table. The court granted this request because "it was a technical matter, that there was extensive evidence in the trial of permanent disability and there was evidence of Mrs. DiLieto's age, and it was just another oversight that should not prevent Mrs. DiLieto from having it considered by the jury." The court then proceeded to charge the jury on Mrs. DiLieto's life expectancy. Defendants claim that the court abused its discretion in allowing the case to be re-opened and further charging the jury on the plaintiff's life expectancy. Judicial notice may be taken at any stage of the proceedings, including on appeal. Drabik v. Town of East Lyme, 234 Conn. 390, 662 A.2d 118 (1995). Whether or not a trial court will permit further evidence to be offered after the close of testimony in a case is a matter resting in the sound discretion of the court. Toffolon, et al. v. Town of Avon, 173 Conn. 525, 537, 378 A.2d 580 (1977). This case is distinguishable from Caccavale v. Hospital of St. Raphael, 14 Conn.App. 504 (1988) cited by the defendants, because the plaintiff in this case moved to reopen the case for the purpose of allowing the court to take judicial notice of the life expectancy tables. The plaintiff did not move to reopen in the Caccavale case and the Appellate Court held that it was not an abuse of discretion for the trial court to deny a request to charge on life expectancy under such circumstances. This court does not believe that it abused its discretion in allowing the case to be reopened for the limited purpose of taking judicial notice of the life expectancy tables.
E. Remittitur
The jury reasonably could have found, based upon the evidence, that: (1) Mrs. DiLieto underwent unnecessary surgery; (2) she suffered excruciating pain in the immediate postoperative period when an epidural line carrying pain medication became "kinked", as a result of which she received no relief from the pain caused by the incisions made into her abdominal wall and pelvic region, and incisions made in order to remove all of her reproductive organs just a few hours before; (3) experienced the permanent loss of healthy organs and body parts, including her uterus, ovaries, fallopian tubes and two lymph nodes; (4) suffered permanent nerve damage in her pelvic area as a result of physical injuries to her genital femoral nerve and/or obturator nerve; (5) experienced severe vaginal burning and pain in the months following unnecessary surgery; (6) continues to suffer pain and discomfort in her pelvic region as a result of 30-40 metal surgical clips that remain in the area of the damaged nerves; (7) experienced emotional distress during the preoperative period when she was told that she had a deadly form of uterine cancer when, in reality, she had nothing more than a benign fibroid; (8) suffered emotional distress in the postoperative period when her doctors did not tell her that she never had cancer; and (9) experienced the discomfort and inconvenience associated with an unnecessary hospitalization, including the insertion of a Foley catheter into her bladder, multiple injections, the drawing of blood, coupled with the postoperative physical pain associated with the removal of various parts of her anatomy. At the time of trial Mrs. DiLieto was 54 years old and had a life expectancy of approximately 24 years.
Proper compensation for non-economic damages cannot be computed by mathematical formula, and there is no precise rule for the assessment of damages. Johnson v. Chaves, 78 Conn.App. 342 (2003). A generous award of non-economic damages should be sustained if it does not shock the court's sense of justice. Campbell v. Gould, 194 Conn. 35, 40, 478 A.2d 596 (1994). Litigants have a constitutional right to have factual issues resolved by the jury. This right embraces the determination of damages when there is room for a reasonable difference of opinion among fair-minded persons as to the amount that should be awarded. Johnson v. Chaves, ( supra). Based on the severity of Mrs. DiLieto's injuries, the pain associated with the removal of her healthy organs and body parts, and the fact that the injuries are permanent, the jury's award was justified and does not shock the conscience of the court. This court will not, therefore, order a remittitur in the case.
Based upon the foregoing, the court denies the defendants' motions: (1) for a new trial; (2) judgment notwithstanding the verdict; (3) remittitur and (4) to set aside the verdict. In making this ruling the court has considered the evidence in a light most favorable to sustaining the verdict. The court finds, from the evidence and all reasonable inferences that flow from the evidence, that the trier of fact could reasonably have found as they did. The court finds that the verdict falls somewhere within the necessarily uncertain limits of just damages, and the verdict does not shock the court's sense of justice as to compel the conclusion that the jury was influenced by partiality, prejudice, mistake or corruption.
F. Plaintiff's Motion for Prejudgment Interest
On June 9, 1998 Offers of Judgment were filed in this matter by Mrs. DiLieto. Mrs. DiLieto offered to settle her case against Yale University School of Medicine in the amount of $1,499,999.00. She also offered to settle her case against Dr. Scott Casper and County Obstetrics and Gynecology Group, P.C. in the amount of $1,499,999.00.
The jury awarded damages against Yale University School of Medicine in the amount of $2,485,000.00. The verdict against Dr. Scott Casper and County Obstetrics Gynecology Group, P.C. was in the amount of $2,715,000.00. In both instances, the plaintiff has recovered an amount greater than the sum stated in the plaintiff's offer of judgment as to the respective defendants. The original complaint was filed with the court on February 7, 1997. In view of the fact that the offers of judgment were made within eighteen months of the filing of the complaint (February 7, 1997-June 9, 1998) the interest is computed from the date the complaint was originally filed (February 7, 1997) pursuant to Connecticut General Statutes Section No. 52-192a(b). Pursuant to the aforesaid statute and Connecticut Practice Book Section No. 17-18 plaintiff has requested that the court add interest at the rate of 12% onto the verdicts and enter judgment accordingly.
Defendants have objected to the entry of any prejudgment interest. They claim that a valid offer of judgment was never filed as to any of the defendants. They claim that Mrs. DiLieto did not have standing to pursue or settle this cause of action, because she had already filed for bankruptcy. They further argue that the Trustee in Bankruptcy never filed an offer of judgment after he was substituted as the plaintiff, and that he cannot retroactively validate Mrs. DiLieto's Offer of Judgment.
"The Bankruptcy Trustee steps into the shoes of the debtor in order to maintain the debtor's causes of action . . ." DiLieto v. County Obstetrics and Gynecology Group, P.C., 265 Conn. 79, 828 A.2d 31, 46 n. 20 (Conn. 2003). Judge Sheldon ruled at the prior evidentiary hearing in this case that "the substitution of the real party in interest is permitted to cure lack of standing by . . . an original plaintiff without standing who was named through mistake when the action was commenced." The court ruled therein that the trustee's substitution as the correct party plaintiff related back to the original filing so as to cure any lack of standing on the part of Mrs. DiLieto acting individually when she commenced the suit. A Fortiori the substitution would also relate back to any of Mrs. DiLieto's pleadings filed after the original complaint until the time in which the trustee was substituted.
In Federal Deposit Ins. Corp. v. Retirement Management Group, Inc., 31 Conn.App. 80, 84-85, 623 A.2d 517 (1993), the Connecticut Appellate Court opined:
General Statutes Section 52-109 and Practice Book Section 101 allow a substituted plaintiff to enter a case "when any action has been commenced in the name of the wrong person as plaintiff . . ." Both rules, of necessity, relate back to and correct, retroactively, any defect in a prior pleading concerning the identity of the real party in interest.
Thus, it was held that a substituted plaintiff could properly prosecute a motion for deficiency judgment even though it had not presented the original motion for strict foreclosure. This ruling is in general accord with accepted treatises in the law which state that the substituted party takes the place of the original plaintiff with respect to both the benefits and the burden of his or her predecessor. In other words, the substitution of parties is given the same effect as if the action had been originally commenced in the name of the real party. 67A C.J.S. Parties Section 84; 59 Am.Jur.2d Parties Section 359. This rule is in accord with Connecticut's first Supreme Court decision on the topic. In Bowen, Admr. v. National Life Association, 63 Conn. 460, 476 (1893) the court stated that "all things done in the case by or in favor of the original plaintiff . . . remain for the benefit of the plaintiff who succeeds him, as if done by and for him originally and just as if no change of parties had been made."
In Maulucci v. St. Francis Hospital Medical Center Foundation, Inc. 1996 WL 397716 (Conn.Super.Ct. 1996), the court (Blue, J.) ruled that the substitution of a party defendant did relate back to a previous offer of judgment. Judge Blue noted that "given the remedial purpose of the statute, the motion for prejudgment interest should not be defeated by a purely technical error . . ." He further opined that the "plaintiffs offer of judgment was designed to encourage an early, fair, and reasonable settlement. That offer was not accepted. The purpose of the statute would thus be satisfied by an award of prejudgment interest."
The court finds that the offers of judgment in this case were not conditional offers. They were valid as presented. The court further holds, in light of Judge Sheldon's ruling and the existing case law, that the substitution of the Trustee in Bankruptcy as a party plaintiff relates back to the institution of the original writ and all pleadings, including the offers of judgment, filed by Mrs. DiLieto until the substitution of the Trustee as the party plaintiff. Therefore, the court grants the plaintiff's motion for prejudgment interest. As in the Maulucci case, the defendants "made a strategic decision not to (accept the offer). That was their right. Now they must bear the statutory consequences."
The court awards prejudgment interest as follows:
As to Yale University
Amount of Verdict: $2,485,000.00 Interest on $2,485,000.00 for one year @ 12 %= $ 298,200.00 Interest on $2,485,000.00 for nine years (February 7, 1997-February 6, 2006) = $2,683,800.00 Per Diem Interest ($298,200 divided by 365) = $ 816.98 Per Diem Interest from February 7, 2006 to July 14, 2006 = $ 129,082.84 (February 7, 2006-July 14, 2006 = 158 days × $816.98)
Total Prejudgment Interest ($2,683,800.00 plus $129,082.84) $2,812,882.84
As to Scoff Casper, M.D. and County Obstetrics Gynecology Group, P.C.
Amount of Verdict: $2,715,000.00 Interest on $2,715,000.00 for 1 year at 12%= $ 325,800.00 Interest on $2,715,000.00 for 9 years = $2,932,200.00 Per Diem Interest ($325,800.00 divided by 365) = $ 892.60 Per Diem Interest from 2/7/06-7/14/06= $ 141,030.80 (158 days × $892.60) Total Prejudgment Interest ($2,932,200.00 plus $141,030.80): $3,073,230.80
Therefore, Judgment shall enter in favor of the plaintiff in the total amount of $11,086,113.64, plus costs, apportioned as follows:
As to Yale University: $5,297,882.84, plus costs. As to Scott Casper, M.D. and County Obstetrics Gynecology Group, P.C.: $5,788,230.80, plus costs.
G. Plaintiff's Motion for Taxation of Costs
The plaintiff has moved for the taxation of costs against the defendants pursuant to Connecticut General Statutes Sections 52-257; Section 52-258; and Section 52-260. Plaintiff has requested the sum of $60,257.15 be taxed as costs. Defendant has objected to the bill of costs on the grounds that the costs are unreasonable and furthermore, in accordance with Connecticut General Statute Section 52-243, because the defendants had probable cause to plead the matters found against them, that costs should not be permitted.
Conn. General Statute Section 52-243 applies to cases wherein the plaintiff has been partly successful regarding several issues raised in the case. Said statute does not apply to the instant case wherein the only issue involved the negligence of the defendants, which issue was resolved entirely in favor of the plaintiff. The fact that one of the employees of the defendant Yale was found not to be negligent does not change the overall responsibility of Yale. Especially since the employee was not named as a separate defendant in the lawsuit. The statute reads in terms of judgment, thus it is inapplicable to the present situation.
Defendants have objected to numerous items contained in the plaintiff's motion on the grounds that the Bankruptcy Trustee did not incur the costs. Again, in light of the court's ruling regarding the substitution of the Trustee and the relation back of his standing in the case, he has a right to claim the expenses incurred by Mrs. DiLieto. Mrs. DiLieto may have recourse pursuing these expenses in the Bankruptcy Court. For the court to rule otherwise would deprive Mrs. DiLieto from recovering some expenses to which a prevailing party is entitled pursuant to our statutes. Therefore, the court will allow the expenses regardless of which party incurred same.
Defendants further object to an award of costs on the basis of C.G.S. Statute 52-257(12) on the grounds that said section did not exist when the costs were incurred. However, the statute reads in terms of an award to a prevailing party. The operative time period is the time when the party prevailed, not when the costs were incurred. The statute was in existence when the plaintiff prevailed. Defendants claim that the statute does not have retroactive effect. However, they have not cited any case or legislative history which would suggest such a result. Therefore, the court will make an award based upon section 12 of the statute.
Defendants have objected to an award of costs based upon the success of the plaintiff's prior appeal. This request is presented in items 6 and 7 of the plaintiff's request. It appears to the court that, pursuant to Section 71-2 of the Practice Book, any bill of costs related to the appeal should have been taxed, after filing, by the appellate clerk. Therefore, the court will not allow items 6 and 7, and sustains defendants' objection regarding those amounts.
The court is given wide discretion in the award of costs for the testimony of medical experts. The statute provides for fees for expert testimony and allows that the fees should be reasonable.
Therefore, the court allows the following costs in this matter:
1-Sec. 52-257(a)(1) pretrial proceedings $ 50.00 2-Sec. 52-257(a)(2) trial proceedings 75.00 3-Sec. 52-257(a)(3) trial of a difficult case 200.00 4-Sec. 52-257(b)(2) depositions 1,560.00 5-Sec. 52-257(b)(12) fees for depositions 5,897.15 6-Sec. 52-258-Jury claim fee 350.00 7-Sec. 52-260-Expert witness fees:
Dr. Mendel 2,500.00 Dr. Cromartie 2,800.00 Dr. Hendrikson 3,000.00 Professor Sheperd 7,500.00
Total Costs allowed: $23,932.15
III. CONCLUSION
Based upon the foregoing reasons, defendants' motions for:
(1) new trial; (2) judgment notwithstanding the verdict; (3) remittitur; and (4) to set aside the verdict, are denied. Plaintiff's motion for prejudgment interest is granted. Plaintiff's motion for taxation of costs is granted in part and denied in part. Judgment shall enter in favor of the plaintiff in the amount of $11,086,113.64 plus costs in the amount of $23,932.15. The judgment is apportioned as follows: Yale University $5,297,882.84 plus its share of the costs; Dr. Casper and County Obstetrics and Gynecology P.C.-$5,788,230.80 plus their share of the costs.