Opinion
No. X10 UWYCV024010138S
August 10, 2007
MEMORANDUM OF DECISION
Before the court are four motions for summary judgment filed by the defendants: Nitai Riegler, M.D., James Ciarcia, M.D., Hospital of Saint Raphael, William Bodden, M.D. and Milford Hospital Inc., in a medical malpractice action brought by the plaintiff David Ferris. This action was commenced by writ summons and complaint dated December 18, 2001. The plaintiff's claims of medical malpractice arise out of an alleged failure to test and diagnose the plaintiff with Lyme disease during an emergency room visit which resulted in the plaintiff receiving electroconvulsive therapy treatments (ECT), seizures induced by the ECT, an alleged delay in receiving proper treatment for Lyme encephalitis and permanent brain damage.
Count one of the complaint is directed to Nitai Riegler, M.D., the doctor who examined the plaintiff in the emergency room; it is a claim for medical malpractice. Count two of the complaint is directed to William Bodden, M.D., who was the emergency room physician "on call" on the day of the visit to the emergency room. Count three is directed to Milford Hospital for the negligence of its apparent agent/employee, Nitai Riegler, for his malpractice and count four is directed to Milford Hospital for the negligence of its apparent agent/employee, William Bodden. The fifth count of the complaint is directed to Milford Hospital for its negligence and the negligence of its agents, servants and employees. The sixth count of the complaint is directed to psychiatrist James Ciarcia M.D. for his malpractice and count seven is directed to the Hospital of St. Raphael for the negligence of its apparent agent/employee, James Ciarcia. The eighth count of the complaint is directed to the Hospital of St. Raphael for its negligence.
I FACTUAL ASSERTIONS AND ISSUES
The eight-count complaint alleges the following facts. Plaintiff David Ferris was a board-certified emergency room physician who had been employed by Defendant Milford Hospital beginning in 1994 and ending in 1998. During his employment with Milford Hospital, the plaintiff complained of fatigue, insomnia, irritability and multiple joint pains. After seeking advice from multiple physicians employed by Milford Hospital the plaintiff was diagnosed with degenerative arthritis in his left hip, which led to hip replacement surgery.
On October 25, 1999, the plaintiff was admitted to the emergency room of Milford Hospital, where he was seen by Nitai Riegler, M.D., who, according to the admission documents, was indicated to be the private physician of the plaintiff. This is factually disputed: the plaintiff disavows requesting Riegler and claims that he had never been treated by Riegler prior to this date. William Bodden, M.D., the on call physician, did not examine or render care to the plaintiff. However, Bodden did briefly visit the plaintiff to say hello as a professional courtesy. Riegler diagnosed the plaintiff with gastroenteritis. The plaintiff claims this diagnosis was reached without a physical examination and any laboratory results. Plaintiff asserts that he had informed Riegler that he believed himself to be suffering from Lyme encephalitis, and that recently he had been admitted to another hospital with that diagnosis.
On November 1, 1999, the plaintiff voluntarily admitted himself to the psychiatric ward of the Hospital of St. Raphael, where he was under the medical supervision of James Ciarcia, M.D. Ciarcia diagnosed the plaintiff with agitated major depression, dysthymia, obsessive-compulsive disorder, chronic pain and possible social phobia. On November 5, 1999, the plaintiff was confined involuntarily to the Hospital of St. Raphael psychiatric ward by Ciarcia. While at the Hospital of St. Raphael, the plaintiff underwent multiple electroconvulsive treatments for his worsening mental condition. The plaintiff claims the electroconvulsive therapy, which induced electroconvulsive brain seizures has reduced his ability to recover from the alleged Lyme encephalitis as well as delaying him from receiving proper treatment for his alleged Lyme encephalitis.
II PROCEDURAL HISTORY
The court issued a scheduling order on April 4, 2003, after all parties had filed numerous requests for extension of time relating to responsive pleadings and discovery issues. The scheduling order required the plaintiff to disclose his experts by March 1, 2004, with the depositions of plaintiff's experts to be completed by May 1, 2004. Defendants' experts were to be disclosed by July 1, 2004, with depositions of defendants' experts completed by September 1, 2004. Trial was scheduled for October 2004.
On April 22, 2004, a one-year continuance of the trial until April 2005 was requested. All parties consented to the continuance. On September 23, 2004, the plaintiff requested a continuance of the pretrial to after February 1, 2005, since discovery was not complete. Judge Moran granted the continuance. At this time, the trial was scheduled to begin on April 26, 2005.
Plaintiff's first disclosure of experts was on February 23, 2005, just shy of one year later than the deadline in the first scheduling order. Plaintiff disclosed five experts: Zane Saul, M.D.; Amiram Katz, M.D.; Lidia A. Domitrovic, Ph.D.; Thomas Landino, Ph.D.; and Stanley M. Augenstein, Ph.D. On March 1, 2005 the plaintiff disclosed Peter Sterling, M.D. as an expert as to causation and James Merikangas, M.D. as an expert as to standard of care. Plaintiff disclosed that Sterling would testify that the plaintiff sustained brain damage as a result of the ECT treatment. Merikangas would testify that Ciarcia deviated from the standard of care by failing to perform an adequate assessment, order appropriate tests and properly diagnose the plaintiff with Lyme encephalitis prior to the ECT treatments. On March 18, 2005, the plaintiff disclosed Anthony Mustalish, M.D. as an expert as to standard of care and violations thereof by defendants Riegler, Bodden and Milford Hospital. Mustalish was also disclosed as an expert as to causation and damages. The disclosure stated that Mustalish would "offer his opinion that the forgoing departures from the standard of care were the proximate cause and substantial factors in causing the plaintiff's injuries." It offered no further detail.
On April 1, 2005 the first motion to preclude was filed by defendant Ciarcia. The motion sought to preclude all of plaintiff's experts from testifying at trial due to plaintiff's failure to produce the experts for their depositions. This motion was not ruled upon. Shortly after the filing of this motion, on April 5, 2005 and April 13, 2005 plaintiff disclosed David Fried, M.D. and Arthur Wright, Ph.D. as additional experts.
A second scheduling order was issued by Judge Lager on April 26, 2005. The order permitted the plaintiff until June 10, 2005 to disclose his experts and moved the trial date to January 4, 2006.
On June 21, 2005, Judge Lager issued a new scheduling order vacating her previous scheduling order. The order provided for the depositions of plaintiff's experts Saul and Katz to be completed by November 1, 2005. Depositions of all experts (plaintiff and defendant) were to be completed by May 1, 2006, and the trial was continued to May 9, 2006. Subsequent to Judge Lager's scheduling order, the defendants noticed plaintiff's experts (David Fried, James Merikangas, Peter Sterling and Arthur Wright) for depositions prior to the May 1, 2006 deadline. Unable to proceed with the deposition of Wright on the noticed date, Attorney Silvestri, counsel for Hospital of St. Raphael, wrote to the plaintiff requesting dates for rescheduling the deposition. Silvestri received no response from the plaintiff and the plaintiff did not produce any of the noticed experts for depositions.
A deposition of David Fried was started on July 25, 2005, but it was not completed at that time.
Judge Stevens issued a revised scheduling order on January 5, 2006. In this order, the defendants were given until January 27, 2006 to notice any depositions of plaintiff's experts and such depositions were to be completed by September 1, 2006. No specific trial date was given. However, based upon new deadlines in the order, the trial would have been no earlier than mid-2007. Plaintiff disclosed expert Richard Klein, M.D. on January 26, 2006.
An application to complex litigation was filed. On January 17, 2006, Judge Lagenbach granted the request, assigning the case to the X10 docket in New Haven. The patties attended a status conference with Judge Munro and a new scheduling order was issued on March 30, 2006. Under the newest scheduling order, the plaintiff had until April 30, 2006 to disclose his experts. The depositions of plaintiff's experts were to be completed by November 30, 2006. A jury trial was scheduled to commence on March 3, 2008.
Defendants re-noticed the depositions of Klein, Merikangas, Sterling and Wright to complete depositions by the new deadlines established by the court. Plaintiff did not produce any of the noticed experts. On April 28, 2006, the plaintiff requested a modification of the new scheduling order, requesting an additional 60 days to disclose his experts. The motion was never acted upon inasmuch as the plaintiff never filed a request for adjudication with the court in accordance with the complex litigation docket protocol.
Defendants again re-noticed the depositions, noticing Klein for two depositions and adding a notice of deposition for Fried. All depositions conformed to the deadline imposed by the court. Again, plaintiff failed to produce his noticed experts. A motion for the modification of the scheduling order was granted by the court on December 4, 2006, extending the deadline for deposition of plaintiff's experts to March 2, 2007. Defendants renoticed Fried, Klein, Merikangas, Sterling and Wright, conforming to the new deadline imposed by the court. Once more, plaintiff failed to produce his experts.
On March 1, 2007, the court granted another extension of the deadline for depositions of plaintiff's experts. The new deadline to complete depositions of plaintiff's experts was November 1, 2007. Specifically, the order noted that, in reference to the depositions of Fried, Klein, Merikangas, Sterling and Wright, that prior to March 21, 2007 ". . . plaintiff's counsel would provide at least 2 dates and locations that plaintiff's counsel and the deponents are available before 5/30/07 for deposition." The order specifically stated that failure to abide to this specific order would result in sanction of preclusion or judgment of dismissal. Plaintiff's counsel failed to provide the required information, prompting all the defendants to file motions for sanctions requesting either preclusion or dismissal. Upon receiving a request for adjudication and waiting more than fifteen days without receiving an objection from the plaintiff, the court granted the motions for sanctions on May 2, 2007, ruling that ". . . the plaintiff is precluded from calling the following experts at trial: David Fried, Richard Klein, James Merikangas, Peter Sterling and Arthur Wright."
Following the court's ruling on the motions for sanctions, defendants filed motions for summary judgment on May 14, 15, 16 and 21, 2007. Plaintiff's counsel filed a motion for re-argument of the motions for sanctions on May 18, 2007, and on May 25, 2007 plaintiff's counsel simultaneously filed an objection to the motions for summary judgment and a motion for extension of time to respond to the motions for summary judgment. The motion for extension of time was timely to the three motions for summary judgment that were filed last and untimely for the first summary judgment motion filed. Notwithstanding this, the court granted the extension of time as to all the motions for summary judgment.
The court held a hearing on June 6, 2007 on the motion for re-argument and ruled that its prior rulings on the motions for sanctions would stand without alteration. At that hearing the court scheduled a hearing on the motions for summary judgment and subsequently sent notice to all parties regarding deadlines for filing objections and responses to the objections. On July 9, 2007, a hearing was held on the motions for summary judgment.
III STANDARD OF REVIEW
"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 moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Grey v. Stamford Health System, Inc., 282 Conn. 745, 750 (2007). "[T]he party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." Appleton v. Board of Education, 254 Conn. 205, 209, 757 A.2d 1059 (2000). "Mere assertions of fact . . . are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17-45]." (Internal quotation marks omitted.) Zielinski v. Kotsoris, 279 Conn. 312, 319, 901 A.2d 1207 (2006). "In ruling on a motion for summary judgment, the court's function is not to decide issues of material fact, but rather to determine whether any such issues exist." Nolan v. Borkowski, 206 Conn. 495, 500, 538 A.2d 1031 (1988). "A motion for summary judgment is properly granted if it raises at least one legally sufficient defense that would bar the plaintiff's claim and involves no triable issue of fact." (Internal quotation marks omitted.) O'Connor v. Board of Education, 90 Conn.App. 59, 67, 877 A.2d 860, cert. denied, 275 Conn. 912, 882 A.2d 675 (2005).
A. Defendant James Ciarcia
Defendant Ciarcia moves for summary judgment on count six arguing that there is no issue of genuine material fact. He notes that General Statute § 52-184c(a) requires expert testimony to prove a claim for malpractice, and, because the plaintiff is precluded from calling his disclosed experts, Sterling and Merikangas, to testify against Ciarcia regarding causation and standard of care, there is no genuine issue of material fact and the plaintiff, as a matter of law, cannot meet his burden of proof at trial.
General Statute § 52-184c(a) provides: "In any civil action to recover damages resulting from personal injury or wrongful death occurring on or after October 1, 1987, in which it is alleged that such injury or death resulted from the negligence of a health care provider, as defined in section 52-184b, the claimant shall have the burden of proving by the preponderance of the evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers."
The plaintiff filed his first objection to all the motions for summary judgment on May 25, 2007, prior to the hearing on his motion to reargue the previously granted sanctions which resulted in experts Fried, Klein, Merikangas, Sterling and Wright being precluded. The objection requested an extension of time to respond to the motions for summary judgment and an objection based upon the plaintiff receiving a favorable ruling after rearguing the sanctions. Lastly, counsel for the plaintiff claimed that there was no bad faith on his part and that the defendants had issued deposition notices "en masse." Included with the objection were copies of numerous deposition notices.
Defendant's reply reiterates that the plaintiff cannot meet his burden of proof and defendant notes that Merikangas is already precluded from testifying and that Saul and Katz are not similar health care providers as required by General Statute § 52-184c(c).
General Statute § 52-184c(c) provides: "If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a "similar health care provider" is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty; provided if the defendant health care provider is providing treatment or diagnosis for a condition which is not within his specialty, a specialist trained in the treatment or diagnosis for that condition shall be considered a `similar health care provider.'"
Citing deposition testimony of Dr. Mustalish, an expert in emergency medicine, the plaintiff's second objection argues that there are genuine issues of material fact that must be left to the trier of facts. However, Ciarcia notes that none of the issues of fact raised in the objection pertain to him and that Mustalish is disclosed as an expert only as to Bodden, Reigler and Milford Hospital and not as to him. Additionally defendant Ciarcia notes that the plaintiff is precluded from calling Merikangas who was the only standard of care expert disclosed as to the defendant.
[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. Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 656, 904 A.2d 149 (2006).
"Except in the unusual case where the want of care or skill is so gross that it presents an almost conclusive inference of want of care . . . the testimony of an expert witness is necessary to establish both the standard of proper professional skill or care on the part of a physician." (Citation omitted; Internal quotation marks omitted.) Doe v. Yale University, 252 Conn. 641, 687, 748 A.2d 834 (2000). The granting of summary judgment in medical malpractice matters is appropriate where the plaintiff is unable to produce an expert to testify at trial. See Gold v. Greenwich Hospital Assn., 262 Conn. 248, 257, 811 A.2d 1266 (2002), See also Boone v. William W. Backus Hospital, 272 Conn. 551, 575, 864 A.2d 1 (2004), McVerry v. Charash, 96 Conn.App. 589, 590, 901 A.2d 69 (2006).
Upon entering the X10 complex litigation docket, a status conference was held and a scheduling order was created with the participation of all parties. That scheduling order was issued on March 30, 2006 and established a deadline of April 30, 2006 for plaintiff to disclose his experts and depositions of plaintiff's experts to be completed by November 30, 2006. Scheduling orders entered December 4, 2006 and March 1, 2007 both confirmed the April 30, 2006 deadline for expert disclosure by the plaintiff and extended the deadline for depositions first to March 2, 2007 and, finally, to November 1, 2007. Further, the X10 scheduling order was not issued in a vacuum: plaintiff had already been the beneficiary of numerous extensions in this area of pretrial discovery. The only experts disclosed as to Ciarcia are Sterling and Merikangas, who are both precluded from testifying by order of this court.
Although the plaintiff disclosed Dr. Mustalish as an expert, he was disclosed only as an expert as to Milford Hospital, William Bodden and Nitai Reigler. At his deposition, Mustalish specifically stated that he would only be providing testimony regarding Milford Hospital, Bodden and Reigler and would not be testifying as to Ciarcia. Without an expert as to the standard of care, deviation from the standard of care and causation the plaintiff is unable to demonstrate the existence of a genuine issue of material fact in regards to defendant Ciarcia. The motion for summary judgment is granted as to count six, which is directed to the defendant Ciarcia. Because the liability of the Hospital of Saint Raphael in count seven is based upon the negligence of its agent and/or apparent agent defendant Ciarcia the motion for summary judgment is granted as to count seven.
B. Defendant Hospital of Saint Raphael
Defendant Hospital of Saint Raphael moves for summary judgment on the eighth count arguing that there is no issue of genuine material fact as to causation and standard of care because the plaintiff is precluded from calling experts Sterling and Merikangas. The supporting and opposing arguments for this motion are the same as those for defendant Ciarcia's summary judgment motion. Inasmuch as Sterling and Merikangas were the only experts disclosed as to Hospital of Saint Raphael, the plaintiff does not have any experts to testify as to standard of care, breach of standard of care and causation. Because there is no question of material fact, the motion for summary judgment is granted as to the defendant Hospital of Saint Raphael.
C. Defendant Nitai Riegler
Defendant Nitai Riegler moves for summary judgment on the first count claiming because (1) the plaintiff has no expert testimony on causation his claim must fail and (2) tests for Lyme disease administered both preceding and subsequent to the emergency room visit produced negative results and the plaintiff has not proven that he has Lyme disease. Additionally, defendant asserts that the plaintiff cannot produce expert testimony regarding the standard of care because the plaintiff's disclosed experts have either been precluded or the expert is not a "similar health care provider." Lastly, the defendant claims that the plaintiff's supporting documentation regarding social security and deposition testimony is not certified or authenticated and, therefore is inadmissible.
Plaintiff counters that there are genuine issues of material fact relating to standard of care that must be decided. To support his position, he cites deposition testimony of his remaining expert on standard of care, Dr. Mustalish, and social security records as evidence that the plaintiff had Lyme disease prior to the emergency room visit. Plaintiff states that the party moving for summary judgments must show that there are no issues of genuine material fact before the burden shifts to the plaintiff to submit supporting documents that a genuine question of fact exists, otherwise the plaintiff may rest on allegations and denials contained in his pleadings.
Plaintiff's objections to each motion for summary judgment are largely the same as to each defendant since his objection does not address each motion individually.
1 Causation
"[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." (Emphasis added.) Carrano v. Yale-New Haven Hospital, 279 Conn. 622, 656, 904 A.2d 149 (2006).
There is no genuine issue of material fact as to whether Riegler or Bodden caused the plaintiff's injury. Plaintiff's expert disclosure of Mustalish states "Dr. Mustalish will testify concerning causation and damages and offer his opinion that the forgoing departures from the standard of care were the proximate cause of and substantial factors in causing the plaintiff's injuries." However, when questioned on causation at his deposition, Mustalish could not say whether the actions of Riegler and/or Bodden were the cause of the plaintiff's injuries.
Q "[Y]ou cannot tell us whether if Dr. Riegler had asked for consult or ordered an additional test on October 25th, whether that would have made any difference whatsoever in the outcome: correct?"
A "The standard of practice in my opinion would be to do that. Whether or not it would make any difference in the outcome depends on the findings of the ID or the neurology specialist. I would defer to their opinion whether or not it could have made any difference in this particular case."
Q "You cannot provide us based on what you know in your background in public health and in the clinic or helping to start a clinic on Lyme disease, you cannot tell us whether if Dr. Riegler or Dr. Bodden had ordered a Lyme titer or ordered a CAT scan or ordered a lumbar puncture on October 25 whether that would have made any difference in the outcome of this case, correct?
A "I don't have an opinion on that."
Q "Am I correct in my last statement."
A "Yes"
April 19, 2005, deposition of Anthony Mustalish, M.D., pg. 120, lines 3-24.
There is also no genuine issue of material fact that the plaintiff did not actually have Lyme encephalitis at the time of the emergency room visit. Defendant has put forth exhibits which show that plaintiff had six Lyme tests from May 29, 2005 until the emergency room visit. All of these tests came back negative. Further, the plaintiff had at least six tests after the emergency room visit. The first tests performed on November 11, 1999 were negative. The one positive test occurred on January 20, 2000 and the other tests performed that day were negative. Dr. Peter Welch, an infectious disease specialist states in his affidavit that in light of other test results the one positive test is a false positive. He notes that to a reasonable degree of medical certainty, the plaintiff did not have Lyme disease on the day of the emergency room visit.
The only contrary evidence proffered by the plaintiff is the Social Security Administration's decision granting disability benefits. That decision concludes that the plaintiff had Lyme disease as of late 1999. Defendants argue the inadmissibility of this evidence.
[O]nly evidence that would be admissible at trial may be used to support or oppose a motion for summary judgment . . . In fact, we have held that Practice Book § [17-45], although containing the phrase `including but not limited to,' contemplates that supporting documents to a motion for summary judgment be made under oath or be otherwise reliable . . . [The] rules would be meaningless if they could be circumvented by filing [unauthenticated documents] in support of or in opposition to summary judgment. (Citation omitted; Internal quotation marks omitted.) New Haven v. Pantani, 89 Conn.App. 675, 678, 874 A.2d 849 (2005).
The decision and conclusion by an administrative law judge that the plaintiff had Lyme disease as of late 1999 is not evidence provided by an expert properly disclosed with the requisite expertise. Nor would it be admissible at trial for the purposes of establishing that the plaintiff had Lyme disease on October 25, 1999.
Additionally, but not determinative of the holdings herein, the Social Security document, as well as Mustalish's deposition testimony, is neither certified nor authenticated, unlike the documents submitted by the defendants.
Without an expert to testify as to causation, and absent any evidence that the plaintiff had Lyme disease before, at the time of or around the time of the emergency room visit, there is no question of fact regarding the failure to test and diagnose the plaintiff with Lyme disease on his October 25, 1999 visit to the emergency room at Milford Hospital.
2 Standard of Care
Even if the plaintiff could establish a question of fact regarding causation, he is unable to establish a question of fact as to the requisite standard of care.
Section 52-184c(a) requires the plaintiff to prove . . . that the defendant breached the prevailing professional standard of care for that health care provider . . . That subsection then defines the prevailing professional standard of care for a given health care provider [as] that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers. (Internal quotation marks omitted.) Friedman v. Meriden Orthopaedic Group, P.C., 272 Conn. 57, 65, 861 A.2d 500 (2004).
General Statute § 52-184c(c) provides in part: "If the defendant health care provider is certified by the appropriate American board as a specialist, is trained and experienced in a medical specialty, or holds himself out as a specialist, a `similar health care provider' is one who: (1) Is trained and experienced in the same specialty; and (2) is certified by the appropriate American board in the same specialty . . ."
Plaintiff has disclosed Mustalish as an expert to testify as to standard of care regarding the defendant. However, plaintiff's expert disclosure of Mustalish states that he is board certified in Emergency Medicine whereas the defendant is board certified in Internal Medicine. The plaintiff has provided no foundation nor has he presented any evidence that would allow Mustalish to testify as an expert against the defendant.
In his deposition Mustalish admitted that Riegler was an appropriate physician given the symptoms the plaintiff displayed at the time of the emergency room visit.
General Statute § 52-184c(d) provides:
d) Any health care provider may testify as an expert in any action if he: (1) Is a `similar health care provider' pursuant to subsection (b) or (c) of this section; or (2) is not a similar health care provider pursuant to subsection (b) or (c) of this section but, to the satisfaction of the court, possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of medicine within the five-year period before the incident giving rise to the claim.
In reference to General Statute § 52-184c(d) the Connecticut Supreme Court stated
The witness must demonstrate a knowledge acquired from experience or study of the standards of the specialty of the defendant physician sufficient to enable him to give an expert opinion as to the conformity of the defendant's conduct to those particular standards, and not to the standards of the witness' particular specialty if it differs from that of the defendant . . . [T]he crucial question is whether . . . [the expert] knows what . . . [the standards of practice] are. (Internal quotation marks omitted.) Friedman v. Meriden Orthopaedic Group, P.C., 272 Conn. 57, 69, 861 A.2d 500 (2004).
Plaintiff has failed to provide affidavit deposition testimony or an affidavit by Mustalish of his knowledge of internal medicine. Mustalish's curriculum vitae primarily evidences emergency treatment with no training or specific experience in internal medicine. His professional certifications do not include internal medicine. Any involvement with teaching within the 5-year period prior to the incident giving rise to the claim relates to emergency treatment and public health. There is no evidence of any training, experience, knowledge or teaching that would allow Mustalish to testify as an expert as to internal medicine nor has Mustalish stated in his deposition that he knows what the standards of practice for internal medicine are. Plaintiff, without any experts to testify as to standard of care, has not put forth an evidentiary foundation to demonstrate the issue of a material fact. The motion for summary judgment is granted as to Nitai Riegler on count one.
D. Defendants William Bodden and Milford Hospital
Defendants Milford Hospital and William Bodden filed a motion for summary judgment as to the second, third, fourth, and fifth counts on the grounds that there is no genuine issue of material fact as to liability and causation. Bodden argues that even though he was the emergency room doctor on call, he did not treat Ferris and that there was no physician-patient relationship and, therefore, he had no duty to care for or treat plaintiff. Milford Hospital asserts that it is not vicariously liable for Bodden since he had no duty to treat the plaintiff and Milford Hospital asserts that it is not vicariously liable for Riegler since he was not an agent, servant or employee of the hospital.
Plaintiff counters that there are questions of material fact as to the standard of care exercised by Bodden, as to whether Riegler or Bodden was responsible for the treatment of the plaintiff, whether Milford Hospital violated the standard of care and whether Milford Hospital is responsible under respondeat superior.
1 Causation
There is no genuine material question of fact regarding causation. The analysis is the same as that for Riegler. Inasmuch as Mustalish is the only expert disclosed as to causation and the social security record is not admissible as probative evidence on this issue, plaintiff has not provided any evidence on causation from which the court could find the existence of a question of fact.
2 Standard of care
There is no genuine material question of fact regarding standard of care as Ferris was not a patient of Bodden. As such, there was no duty of care.
The existence of a duty is a question of law and only if such a duty is found to exist does the trier of fact then determine whether the defendant violated that duty in the particular situation at hand . . . We have stated that the test for the existence of a legal duty of care entails (1) a determination of whether an ordinary person in the defendant's position, knowing what the defendant knew or should have known, would anticipate that harm of the general nature of that suffered was likely to result, and (2) a determination, on the basis of a public policy analysis, of whether the defendant's responsibility for its negligent conduct should extend to the particular consequences or particular plaintiff in the case . . . The first part of the test invokes the question of foreseeability, and the second part invokes the question of policy. Neuhaus v. Decholnoky, 280 Conn. 190, 217, 218, 905 A.2d 1135 (2006).
"[W]e are not required to address the issue of foreseeability if we determine, based on the public policy prong, that no duty of care existed." Neuhaus v. Decholnoky, supra at 223. Bodden's affidavit states that it was the custom and practice to allow a private physician to see a patient in his emergency room. His affidavit states "[i]t was not expected that the `on call' emergency room physician would render any care or treatment to the plaintiff, if the plaintiff was non-emergent." Plaintiff's expert Mustalish testified that, absent an official policy, based upon the facts in the instant case, Riegler's significant involvement, and Riegler appearing to assume control of the treatment, that Bodden does not bear any responsibility for the treatment of the plaintiff.
Although Bodden's affidavit references practice and custom regarding emergency room treatment by private physicians at Milford Hospital there has been no evidence submitted of any specific written policy governing this practice.
"The physician/patient relationship is a consensual one and is created when the professional services of a physician are rendered to or accepted by another for the purposes of medical or surgical treatment." Rumbin v. Baez, Superior Court, judicial district of New Haven at New Haven, Docket No. CV 95-0378968-S (Dec. 8, 1997, O'Keefe, J.) 1997 Ct.Sup. 13532, aff'd, 52 Conn.App. 487, 727 A.2d 744 (1999).
In the present matter, a physician-patient relationship did not exist between Bodden and Ferris. As Bodden stated in his affidavit "[m]y only contact . . . was to briefly inquire as to [Ferris's] well-being . . . I did not render any care or treatment . . . nor did the plaintiff accept any care or treatment by me . . ." Plaintiff has provided no evidence to dispute Bodden and the plaintiff's signature on the discharge papers acknowledge that his treatment was provided by Riegler.
There is no genuine question of fact as to Bodden's breach of a duty of care since there is no factual issue as to whether a physician-patient relationship exists. Because Bodden had no duty to render care or treatment summary judgment is granted as count two and to Milford Hospital's vicarious liability for the negligence of Bodden in count four. Because the liability of Milford Hospital in count three is based upon the negligence of its agent and or apparent agent Riegler, the motion for summary judgment is granted as to count three.
Even if plaintiff had an expert who could testify as to standard of care and breach thereof in regards to Riegler, Milford Hospital would still not be liable as Riegler is not an agent of Milford Hospital.
[T]he three elements required to show the existence of an agency relationship include: (1) a manifestation by the principal that the agent will act for him; (2) acceptance by the agent of the undertaking; and (3) an understanding between the parties that the principal will be in control of the undertaking . . . The existence of an agency relationship is a question of fact . . . Some of the factors listed by the Second Restatement of Agency in assessing whether such a relationship exists include: whether the alleged principal has the right to direct and control the work of the agent; whether the agent is engaged in a distinct occupation; whether the principal or the agent supplies the instrumentalities, tools, and the place of work; and the method of paying the agent . . . In addition, [a]n essential ingredient of agency is that the agent is doing something at the behest and for the benefit of the principal . . . Finally, the labels used by the parties in referring to their relationship are not determinative; rather, a court must look to the operative terms of their agreement or understanding. (Internal quotation marks omitted.) Wesley v. Schaller Subaru, Inc., 277 Conn. 526, 543, 544, 893 A.2d 389 (2006).
The affidavit of David Stahelski, Vice President of Administration, Milford Hospital attests that Riegler was not an agent of Milford Hospital. Stahelski notes that Riegler did not, and never has, received compensation from the hospital, that Riegler has never executed a contract with the hospital, that the hospital bills patients separately from any bills resulting from Riegler's treatment of patients within the hospital and that the hospital has never exercised any control over Riegler. Plaintiff provided no evidence in rebuttal.
Plaintiff provided no facts from which a trier of facts could find that Milford Hospital acted in a manner that would cause one to believe Riegler was acting under apparent authority of the hospital. "An agent has apparent authority to represent the principal when a principal through his own acts or inadvertences, causes or allows third persons to believe his agent possesses such authority." (Internal quotation marks omitted.) Bella Vista Condominium Assn., Inc., v. Byars, 102 Conn.App. 245, 253 (2007). In his affidavit, Stahelski states the hospital's custom and practice that existed at the time of the incident allowed attending physicians to see patients in the emergency room. Ferris, who had been employed by the hospital as an emergency room physician for four years would most likely be aware of this practice.
In his affidavit, Dr. Zane states that a hospital's written policies or customs would govern procedure for a private physician attending to a patient in the emergency room and that there are no federal guidelines mandating an emergency room physician to oversee the care of a non-emergent patient under these circumstances. Additionally, he states that standard of care would not require the emergency room physician to oversee the attending physician.
Mustalish confirms that the hospital met the standard of care when he states ". . . it was pretty accepted practice from the notation in the medical record by the nursing staff that a private doctor could see the patient and provide a definitive examination and meet the obligation of the hospital to provide a physician in that setting." In his deposition testimony Mustalish agrees that Riegler was ". . . an appropriate consultant based on [Ferris's] symptoms." He notes that based upon Bodden's perception that Riegler was the plaintiff's physician and that, absent an official policy of Milford Hospital requiring Bodden to review Riegler's workup, evaluation and disposition, Bodden met the standard of care.
As previously noted no evidence of a formal written policy has been submitted to the court.
Because the plaintiff has not produced any evidence contrary to Dr. Zane's affidavit placing the standard of care of the hospital into question summary judgment is granted on count five.
Having presented no evidence to establish a question of material fact in regard to both duty of care and causation the plaintiff's objection to the motions for summary judgment are overruled and the motions for summary judgment of all the defendants are granted.