Opinion
No. CV 01-0456684
February 22, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT #137
This is defendant's second motion for summary judgment. The following facts and procedural history are relevant to this motion. On September 24, 2007, the parties in this action argued a second motion for summary judgment (#137) filed on August 27, 2007, by the defendant, Michael Ryskin, an obstetrician-gynecologist.
The plaintiff filed a one-count complaint on October 17, 2001, alleging that while undergoing a laparascopic hysterectomy procedure, a tripolar cutting forceps employed by the defendant malfunctioned. She further alleged that this "intra-operative malfunction was a proximate result of the negligence of the defendant in that he failed to properly inspect the forceps." The plaintiff further alleged that "the defendant deviated from the standard of care in that he failed to have available . . . backup forceps in the event of a malfunction. As a proximate result of this negligence, the plaintiff alleged that the laparoscopic procedure was converted to a vaginal hysterectomy with ensuing problems outlined in the complaint. Subsequently, the plaintiff filed a number of amended complaints, that last being the operative complaint filed on June 29, 2007. The only relevant change to that complaint when compared to all preceding complaints is the addition of an alternative allegation that if the forceps did function, "the defendant deviated from the standard of care by failing to properly operate them."
On February 15, 2007, the court, Lopez, J., granted the defendant's motion seeking an order that the plaintiff disclose any experts intended to be called as witnesses at trial and issued the following order: "The plaintiff shall fully and fairly disclose, pursuant to the requirements of the Practice Book, all experts that she intends to use at trial on or before 3/30/07, or be precluded from using any experts not disclosed by that date." (Emphasis added.) On March 13, 2007, the plaintiff sought a thirty-day extension of the March 30, 2007 deadline set by Judge Lopez, which was granted, but did file a "Preliminary Expert Disclosure" on that date. This "preliminary disclosure" indicated that the plaintiff proposed to call as a witness Scott Savory, the alleged head of the biomedical engineering department at the hospital where her surgery was performed. The plaintiff indicated that Savory would testify as to the performance of the forceps in testing situations subsequent to the plaintiff's surgery. In her reply to the defendant's objection to her March 13, 2007 request for an extension of time up through April 30 to disclose other experts, which reply was also filed on March 30, the plaintiff argued that she had already disclosed a liability expert and that an additional thirty days to disclose her experts "in a simple case whose trial date has not yet been set can scarcely be said to work to the defendant's detriment." Thus, as of March 30, 2007, the plaintiff appears to have contemplated calling witnesses in addition to Savory. The record also reveals that the plaintiff, on April 30, 2007, filed yet another request for an extension of time to May 30, 2007, to disclose an expert. Although the defendant objected to this request, it does not appear that the objection was ruled upon. Nevertheless, it is worth noting that the plaintiff failed to file a disclosure on May 30, 2007.
On June 12, 2007, the defendant filed a motion for summary judgment on the same ground that he moves for summary judgment in the motion presently before this court, that is: "the plaintiff has disclosed no expert witness to provide an opinion of what the standard of care was in April, [1999] for an obstetrician/gynecologist in performing a laparoscopic hysterectomy, that Dr. Ryskin breached any such standard, or that the plaintiff sustained any injury as a result of such conduct." The plaintiff argued in opposition that while "she had moved for leave to disclose an additional expert should the court conclude that a standard of care expert is necessary," summary judgment was not warranted because the negligence alleged was "of a nature obviating the need for medical testimony."
On July 2, 2007, the court, Licari, J., denied the defendant's motion for summary judgment and issued the following order: "On the limited evidence before it the issue of gross negligence is beyond the scope of this motion. The plaintiff's request for a 30 day extension of time to disclose an expert on the standard of care and causation is granted since as yet there is no trial date." By granting the plaintiff's request for a thirty-day extension to disclose an expert on the standard of care and causation, Judge Licari thus concluded that such an expert was necessary and was to be disclosed by August 2, 2007. On August 2, 2007, the plaintiff filed an additional request for an extension of time of fourteen days to disclose an expert witness, stating that she was awaiting a report from a board certified obstetrician gynecologist who was reviewing the plaintiff's medical records. While it appears that the plaintiff's August 2, 2007 request was never ruled upon, the plaintiff did not file a disclosure.
Turning now to the motion for summary judgment presently before the court, it bears noting that rather than filing the disclosure ordered by Judge Licari, the plaintiff, in the context of the present motion for summary judgment, raises once again the argument that the "issue now before the court appears to be whether the plaintiff is entitled to rely on the gross negligence exception," obviating the need for the testimony of an expert witness. At the time of oral argument on September 24, 2007, this court granted the plaintiff an additional two weeks (October 8) to file a reply to the defendant's reply memorandum to the plaintiff's objection to the defendant's motion for summary judgment. The record reflects that on October 9, 2007, the plaintiff filed a request for an additional two weeks up to and including October 23, 2007, to file her response to the defendant's reply brief. Although that request was never ruled upon, the record also reflects that the plaintiff failed to file a reply brief on October 23.
The plaintiff, Rowena Dickinson, does not dispute that her action sounds in medical malpractice arising out of a hysterectomy performed on her by the defendant on April 12, 1999.
The defendant moves for summary judgment on the ground that because "the plaintiff has disclosed no expert witness to provide an opinion of what the standard of care was in April, [1999] for an obstetrician/gynecologist in performing a laparoscopic hysterectomy, that Dr. Ryskin breached any such standard, or that the plaintiff sustained any injury as a result of such conduct . . . there is no question of material fact in dispute and that as a matter of law [the defendant] is entitled to judgment on the plaintiff's amended complaint dated June 29, 2007."
The central argument raised by the plaintiff in opposition to the defendant's motion for summary judgment is that "under the unusual facts of this case, [the plaintiff] is entitled to rely on the gross negligence exception to the general requirement of expert testimony."
DISCUSSION
"Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party entitled to judgment as a matter of law . . . The motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." (Citations omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). Thus, there is no merit to the only new argument raised by the plaintiff in opposition to this motion, that is: "In the intervening months, developments have occurred rendering the instant motion premature. The defendant sought . . . an unusually distant trial date. This case is now set for trial in May of 2008, more than eight months away." The trial date established for an action has no bearing on the appropriate time for filling a motion for summary judgment, except, as the defendant correctly points out, the rules of practice dictate that once a case has been assigned for trial a party wishing to move for summary judgment must obtain the judicial authority's permission to file the motion. See Practice Book § 17-44.
"[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 a 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 because the requirements for proper medical diagnosis and treatment are not within the common knowledge of lay persons . . . An exception to the general rule [requiring] expert medical opinion evidence . . . is when the medical condition is obvious or common in everyday life . . . Similarly, expert opinion may not be necessary as to causation of an injury or illness if the plaintiff's evidence creates a probability so strong that a lay jury can form a reasonable belief . . . Expert opinion may also be excused in those cases where the professional negligence is so gross as to be clear to a lay person." (Citations omitted; internal quotation marks omitted.) Boone v. William Backus Hospital, 272 Conn. 551, 567, 864 A.2d 1 (2005). In Boone, the Supreme Court upheld the trial court's conclusion that the defendant hospital's administration of a drug to the plaintiff's decedent and subsequent refusal to treat or readmit him despite signs of an allergic reaction did not meet the " high threshold of egregiousness necessary to fall within the gross negligence exception." (Emphasis added.) Id., 568. In support of his motion for summary judgment, the defendant has attached his affidavit in which he avers that "there are several types of instruments available to a surgeon that can be used interchangeably to sever and cauterize uterine ligaments and blood vessels when using a laparoscopic approach." He further avers that the tripolar cautery device that he chose to use during the plaintiff's surgery successfully severed and cauterized most of the ligaments and vessels before failing to cauterize one of the ligaments. Upon discovering the device would no longer cauterize, the defendant avers that he selected another type of instrument to address the remaining vessels.
Furthermore, the plaintiff has offered nothing in opposition to the defendant's motion for summary. She relies solely on her allegations that the defendant "failed to properly inspect the forceps, deviated from the standard of care in that he failed to have available a backup forceps in the event of a malfunction," and "[a]dditionally, or in the alternative, the forceps functioned, but the defendant deviated from the standard of care by failing properly to operate them," to argue, once again, that she is entitled to rely on the gross negligence exception to the requirement that expert testimony be presented in her malpractice action.
CONCLUSION
This court concludes that because the procedures and equipment used by a surgeon in performing a laparoscoptic hysterectomy are not within the common knowledge of laypersons, the plaintiff's allegations regarding the defendant's inspection or lack of inspection of the forceps, use or discontinuance of use of the forceps and failure to have a backup forceps could not be considered gross negligence such as to excuse the plaintiff from the need to present expert testimony. Without the testimony of an expert on the established standard of care for such a procedure, a lay jury could not determine whether the defendant deviated from the standard of care. The plaintiff in this action has been granted numerous continuances to disclose an expert and has failed each time to make such disclosure. The defendant's motion for summary judgment is therefore granted.