Opinion
No. CV-08-6003151
June 23, 2011
MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT
The defendant, David A.L. Johnson, M.D., has filed a Motion for Summary Judgment in this medical malpractice action on the grounds that the trial was scheduled to commence on June 1, 2011 and the plaintiffs had never disclosed an expert witness. For the reasons set forth herein, the motion is granted.
Factual and Procedural History
This action was commenced by complaint dated August 27, 2008. The complaint alleges that sometime prior to June 15, 2006, the plaintiff, Joseph Dorreman, sustained a quadriceps tendon rupture to his right knee; that he consulted with Dr. Johnson who performed a surgical repair of that quadriceps tendon on June 15, 2006; and that following that surgery, the plaintiff sustained a re-rupture of the tendon. The complaint further alleges that "[a]lthough [Dr. Johnson] became aware of the re-rupture of the right quadriceps tendon on or before July 12, 2006, he decided not to repair the re-ruptured quadriceps tendon." The plaintiff further alleges that he subsequently developed an inability to extend his knee and had an unstable knee secondary to the quadriceps tendon re-rupture.
The complaint alleges that the defendant was negligent in the following ways:
(1) that the defendant knew or should have reasonably known in July 2006, that plaintiff's right knee condition would not do well without a revision surgery to his right knee taking place in July 2006 and that he would have right knee instability as a result of failure to perform the revision surgery in July 2006; and
(2) that the defendant knew or should have reasonably known that he would have been able to reconstruct the quadriceps to the right knee in July 2006 without a graft and would have gotten an appropriate result.
On October 29, 2009 this case was assigned a trial date of June 1, 2011. The scheduling order provided that the plaintiffs were to disclose their expert witnesses on or before August 1, 2010. As of May 25, 2011, the plaintiffs still had not disclosed any expert witness and the defendant filed a Motion to Preclude.
After argument the court granted the Motion to Preclude on June 1, 2011, finding that there had never been a disclosure of an expert who would testify as to the defendant's violation of the standard of care or as to a causal connection between that violation and the plaintiff's injuries. In many cases, the plaintiff advances a good reason for his failure to disclose an expert. Often the expert who the plaintiff had relied upon to provide testimony becomes unavailable. The plaintiffs here advanced no good reason — or any reason — for their failure to disclose.
In light of the ruling on the Motion to Preclude, the defendant obtained permission to file the Motion for Summary Judgment now under consideration. At the hearing on the Motion to Preclude on June 1, 2011, the court gave the plaintiffs time to respond to the Motion for Summary Judgment. That response was filed on June 20, 2011.
Discussion of the Law and Ruling
Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. "In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Citations omitted; internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 251-52, 819 A.2d 773 (2003). "It is not enough . . . for the opposing party merely to assert the existence of such a disputed issue. Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence property presented to the court under Practice Book § [17-45]." Boone v. William W. Backus Hospital, 272 Conn. 551, 558-59 (2005). Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).
Summary judgment is the appropriate disposition of a medical malpractice case where the plaintiff cannot present expert testimony to support her claims at trial of the matter. See Sullivan v. Yale-New Haven Hospital, Inc., 64 Conn.App. 750, 785 A.2d 588 (2001) (affirming summary judgment in medical malpractice case where plaintiff lacked the requisite expert testimony); Stowe v. McHugh, 46 Conn.App. 391, 699 A.2d 279 (1997) (affirming summary judgment in favor of apportionment defendants where plaintiff lacked requisite expert testimony to support claims of medical malpractice); Guzze v. New Britain General Hospital, 16 Conn.App. 480, 547 A.2d 944 (1988) (affirming summary judgment in medical malpractice case where plaintiff lacked the requisite expert testimony).
In order for the plaintiffs to prevail here, they must prove a prima facie case by expert testimony on (1) the requisite standard of care; (2) a deviation from the standard of care; (3) the plaintiff, Joseph Dorreman, suffered some injury; and (4) the defendant's act in departing from the standard of care caused the plaintiff's injuries. Boone v. William W. Backus Hospital, 272 Conn. 551, 571, 864 A.2d 1 (2005); Hammer v. Mount Sinai Hospital, 25 Conn.App. 702, 717, 596 A.2d 1318 (1991); LePage v. Horne, 262 Conn. 116, 123, 809 A.2d 505 (2002). Generally expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard. Mather v. Griffin Hospital, 207 Conn. 125, 130-31, 540 A.2d 666 (1998); Shelnitz v. Greenberg, 200 Conn. 58, 66, 509 A.2d 1023 (1986); Cross v. Huttenlocher, 185 Conn. 390, 393, 440 A.2d 952 (1981).
Whether Dr. Johnson breached the applicable standard of care that would be applied to orthopedic surgeons can only be determined by a similar health care provider. "[A]n understanding of the applicable standard of care and the behaviors that may constitute a violation of that standard are beyond the experience and ken of the ordinary fact finder." Neff v. Johnson Memorial Hospital, 93 Conn.App. 534, 546, 889 A.2d 921 (2006). The plaintiffs' allegations against the defendant sound in negligence stemming from his care and treatment of Mr. Dorreman in connection with orthopedic surgery. The standard of care applicable to care rendered by an orthopedic surgeon is not within the ordinary knowledge of a lay juror. Therefore, expert testimony is required to establish the standard of care for orthopedic surgeons in the care and treatment of quadriceps tendon repairs. Without expert testimony the plaintiffs cannot establish a prima facie case.
In addition to proving a violation of the standard of care, the plaintiffs must also prove that Dr. Johnson's conduct was a proximate cause of Mr. Dorreman's alleged injuries. Ardoline v. Keegan, 140 Conn. 552, 558, 102 A.2d 352 (1954); Grody v. Tulin, 170 Conn. 443, 448, 365 A.2d 1076 (1976). Generally, expert opinion is necessary to establish proximate cause in a medical malpractice case. Klein v. Norwalk Hospital, 113 Conn.App. 771, 778, (2009); Gold v. Greenwich Hospital Assn, 262 Conn. 248, 254-55, 811 A.2d 1266 (2002).
In opposition to summary judgment, the plaintiffs argue that under Practice Book Section 13-4(b)(2) they will be permitted to offer the opinions of Mr. Dorreman's treating physicians. The plaintiffs have attached portions of the transcript of the deposition of Dr. Johnson and notes from Dr. Nagarkatti, who treated Mr. Dorreman after Dr. Johnson. The court has reviewed everything submitted by the plaintiffs. They all discuss treatment provided to Mr. Dorreman. However, there is nothing contained therein in which any orthopedic surgeon opines that Dr. Johnson violated the applicable standard of care or that such violation was a proximate cause of the Mr. Dorreman's alleged injuries. Therefore, the plaintiffs' introduction of those records at trial will not serve to establish a prima facie case of malpractice.
At oral argument the plaintiffs' counsel speculated that Dr. Nagarkatti or other doctors would opine at trial that Dr. Johnson violated the standard of care. However, such an opinion, not being found in any of Dr. Nagarkatti's reports, and never having been disclosed to the defendant, would not be admissible. There is abundant authority that a party cannot cure a failure to disclose an expert opinion by means of a question eliciting such an opinion at trial. See Ahern v. Fuss and O'Neill, Inc., 78 Conn.App. 202, 211 (2003), cert. denied, CT Page 13950 266 Conn. 903, 832 A.2d 64 (2003); Ciarlelli v. Romeo, 46 Conn.App. 277, 280-81, 699 A.2d 217, cert. denied, 243 Conn. 929, 701 A.2d 657 (1997); Kemp v. Ellington Purchasing Corp., 9 Conn.App. 400, 404-05, 519 A.2d 95 (1986); Sturdivant v. Yale-New Haven Hospital, 2 Conn.App. 103, 106-08, 476 A.2d 1074 (1984).
Summary judgment is "designed to eliminate the delay and expense of litigating an issue where there is no real issue to be tried." Wilson v. City of New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). The court's ruling on the Motion to Preclude and the plaintiffs' failure to disclose any expert opinion on the defendant's violation of the standard of care or causation will prevent the plaintiffs from proving a prima facie case of medical malpractice. Requiring the parties to select a jury and then requiring the plaintiffs to present their case, prior to directing a verdict would cause the type of expense and delay that a summary judgment is intended to forestall.
For the foregoing reasons, summary judgment enters in favor of the defendant, Dr. Johnson.