Opinion
X03HHDCV136046945S
05-31-2017
Christina LaPierre, Executrix of the Estate of Marguerite Matukaitis v. Lawrence M. Pareles, M.D. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTIONS FOR PROTECTIVE ORDER (##205.00 & 216.00)
Ingrid L. Moll, Judge, Superior Court.
Before the court are two motions for protective order (motions), specifically: (1) the motion for protective order precluding the plaintiff from eliciting expert testimony from party defendants dated November 3, 2015, filed by defendants Connecticut Multispecialty Group (CMG), Mahesh I. Patel, M.D., Emilio H. Pandika, M.D., Michael T. Lawlor, M.D., and Michael M. Conway, M.D. (collectively, CMG defendants) (#205.00); and (2) the motion for protective order dated November 17, 2015, filed by defendants Lawrence Pareles, M.D. and Cardiac Care Associates (CCA) (together, CCA defendants) (#216.00). Having reviewed the parties' submissions and the authorities cited therein, and having considered the arguments of counsel, for good cause shown, the court grants the motions.
The CMG defendants and the CCA defendants are referred to herein as " the defendants."
BACKGROUND
This case is a wrongful death action sounding in medical malpractice. The operative complaint, which is the plaintiff's Revised Amended Complaint dated July 14, 2015 (#191.00) (complaint), alleges the following facts. The plaintiff, Christina LaPierre (plaintiff), was appointed executrix of the estate of Marguerite Matukaitis (Ms. Matukaitis or plaintiff's decedent) and brings this action in her representative capacity. Ms. Matukaitis was hospitalized at Hartford Hospital (hospital) from July 25, 2011, through August 7, 2011, during which time she received treatment from the defendants. On July 25, 2011, Ms. Matukaitis was admitted to the hospital for complaints of chest pain and shortness of breath; she was found to have an abnormality on her electrocardiogram, a second degree heart block, and an elevated white blood count. She was seen by Dr. Patel, who wrote that there was no radiological evidence of pulmonary embolism, congestive heart failure, or pneumonia to account for her symptoms. Ms. Matukaitis was then seen by Dr. Pareles, who ordered that a transthoracic echocardiogram be performed. Such test occurred on July 26, 2011; Ms. Matukaitis's artificial aortic valve could not be clearly seen. Dr. Pareles ruled out bacterial endocarditis. On July 26, 2011, Dr. Lawlor examined Ms. Matukaitis and ordered intravenous antibiotics to be started. On July 27, 2011, Ms. Matukaitis continued to have symptoms, including anxiety, trouble sleeping, an elevated white count, fever, chest pain, shortness of breath, and a decreasing heart rate. On July 28, 2011, Dr. Lawlor saw Ms. Matukaitis and, noting " no evidence of infection, " discontinued the intravenous antibiotics. From July 25 to August 1, 2011, Ms. Matukaitis's white count remained elevated, her chest pain was alleviated only by pain medication, and she remained short of breath. Drs. Lawlor, Pandika, Pareles, and Patel did not consider additional testing to rule out an infection of her heart. On August 1, 2011, Dr. Conway examined Ms. Matukaitis and ordered intravenous steroids and oral inhaled medications for asthmatic bronchitis. On August 2, 2011, Ms. Matukaitis continued to have an elevated white count and continued to exhibit signs of a worsening heart condition. None of the treating physicians considered that she might have a bacterial infection of her heart or artificial aortic valve. On August 3, 2011, a pacemaker was implanted in Ms. Matukaitis's heart. On August 4, 2011, Dr. Conway examined Ms. Matukaitis; his diagnosis for her continued chest pain, anxiety, shortness of breath, and elevated white count was asthmatic bronchitis. Ms. Matukaitis's condition worsened over the following days.
The complaint also alleges the following. At all relevant times, Dr. Pareles was a duly licensed physician, specializing in cardiology, was an employee, agent, and/or apparent agent of CCA, CMG, Hartford HealthCare Corporation (HHC), and/or Hartford Hospital, and acted within the scope of his agency and/or employment in his treatment of the plaintiff's decedent. At all relevant times, Dr. Conway was a duly licensed physician, specializing in pulmonology; Dr. Lawlor was a duly licensed physician, specializing in infectious disease; and Drs. Pandika and Patel were duly licensed physicians, practicing as hospitalists. At all relevant times, Drs. Conway, Lawlor, Patel, Pandika were employees, agents, and/or apparent agents of CMG, HHC, and/or Hartford Hospital, and acted within the scope of their agency and/or employment in their treatment of the plaintiff's decedent.
On August 7, 2011, Ms. Matukaitis passed away while a patient at the hospital. An autopsy revealed that Ms. Matukaitis died from an undiagnosed, acute bacterial endomyocarditis, an infection of her heart and artificial heart valve.
The plaintiff commenced this action on or about November 21, 2013. The complaint sets forth three counts of negligence as follows: (1) count one, as to the CCA defendants; (2) count two, as to CMG and Drs. Pareles, Patel, Pandika, Conway, and Lawlor; and (3) count three, as to defendants HHC and Hartford Hospital. The parties have engaged in discovery and were in the process of completing the depositions of the defendant treating physicians. During the deposition of Dr. Lawlor, plaintiff's counsel engaged in questioning relating to causation and standard of care.
On November 3 and 17, 2015, respectively, the CMG defendants and CCA defendants filed the instant motions. (##205.00, 216.00.) The plaintiff filed objections to both motions. (##206.00, 220.00.) The CMG defendants filed a reply and a supplemental reply to the plaintiff's objection. (##209.00, 211.00.) The court, Miller, J., heard oral argument on the above motions on December 17, 2015, a transcript of which the undersigned has reviewed.
The undersigned's assignment to the X03 commenced on September 5, 2016. Thereafter, the plaintiff, the CMG defendants, and the CCA defendants indicated, through counsel, their wish to have oral argument before the undersigned on the instant motions. Following the submission of supplemental memoranda (##222.00-225.00), the court heard oral argument on February 7, 2017.
LEGAL STANDARD
Defendants move pursuant to Practice Book § 13-5, which provides in relevant part: " Upon motion by a party from whom discovery is sought, and for good cause shown, the judicial authority may make any order which justice requires to protect a party from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: . . . (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters . . ." Practice Book § 13-5. " Good cause has been defined as 'a sound basis or legitimate need to take judicial action.'" Welch v. Welch, 48 Conn.Supp. 19, 20, 828 A.2d 707 (2003). The trial court has the inherent authority, embodied in § 13-5, to issue protective orders under appropriate circumstances. Rosado v. Bridgeport Roman Catholic Diocesan Corp., 276 Conn. 168, 221 n.59, 884 A.2d 981 (2005). " [T]he granting or denial of a discovery request rests in the sound discretion of the court." (Internal quotation marks omitted.) Woodbury Knoll, LLC v. Shipman & Goodwin, LLP, 305 Conn. 750, 775, 48 A.3d 16 (2012).
DISCUSSION
The motions seek to preclude the plaintiff from eliciting expert testimony from the decedent's treating physicians, who have not been disclosed as expert witnesses in the present case. The CMG defendants' motion seeks a broad protective order that would encompass " the defendant physicians in this case, or other health care providers who have not been disclosed as expert witnesses." The CCA defendants' motion limits the scope of the requested protective order to Dr. Pareles. The defendants argue that Connecticut law clearly provides that a physician cannot be compelled against his or her wishes to serve as an expert witness. The CMG defendants further contend that, because the plaintiff has already retained an expert, who signed the opinion letter attached to the complaint, it would be unreasonable to require the defendant treating physicians in this case or other healthcare providers, who have not been disclosed as expert witnesses, to offer expert opinions without their consent. The plaintiff contends, to the contrary, that Connecticut law permits a plaintiff to prove her case through the expert testimony of a defendant treating physician. The plaintiff further contends that the CCA defendants' motion should be denied because it is overbroad and vague. The court agrees with the defendants that a defendant treating physician may not be compelled to provide expert testimony where such individual has not been disclosed as an expert witness by the defense and where such individual has not expressed an opinion in the patient's medical records.
As a threshold matter, the court notes that there is no statutory or Practice Book provision, nor any appellate authority, on the specific question presented here, namely, whether a defendant treating physician--(1) who has not been disclosed by the defense as an expert witness, and (2) whose opinions of an expert nature do not appear in the patient's medical records--may be compelled to provide expert opinions.
Our Supreme Court addressed a similar issue vis-à-vis a real estate appraiser in an eminent domain proceeding. In Town of Thomaston v. Ives, 156 Conn. 166, 167, 239 A.2d 515 (1968), our Supreme Court considered " whether, in eminent domain proceedings initiated by the state highway commissioner in which the amount assessed by the commissioner as damages is the only issue in dispute, the owner of the condemned property may compel a real estate appraiser employed by, but not offered as a witness by, the commissioner to testify concerning his opinion as to the value of the condemned property." The Court remarked that " [u]ndeniably, there is a distinction between the duty of a witness to testify to factual matter within his knowledge and the imposition of a requirement that he voice his opinion concerning a subject with which he is conversant as an expert. It is the duty of every witness, lay or expert, to respond to a subpoena and, unless privileged, to testify to factual matters relevant to a controversy. If the rule was otherwise, the trial of causes in the courts would be seriously impeded. The same necessity does not exist, however, for requiring a witness who has been employed as an expert by a litigant to testify to his expert opinion as a witness for his employer's adversary. It is because of this factor that the unanimity which exists in the first situation disappears when courts have been confronted with the second." Id. at 172. The Court went on to hold that the appraiser--who was employed by the state to perform a valuation of the condemned property, but who had not been produced by the state as an expert witness--was required to testify concerning his valuation. Id. at 168, 171, 173-74. The Court reasoned that
justice is best served in a case such as the one before us by requiring the appraiser to testify to his expert opinion when called upon to do so. This is not to be taken to mean that every expert witness is to be held to the same requirement . The wide diversity of subjects on which expert opinion may be required and the varying circumstances under which the opinion may be sought militate against any such sweeping generalization. We decide only the case of the type at hand .(Emphasis added.) Id. at 173-74. The Court went on to emphasize that " [t]he single objective of the present proceeding is to ensure that the property owner shall receive, and that the state shall only be required to pay, the just compensation which the fundamental law promises the owner for the property which the state has seen fit to take for public use." Id. at 174. The Court perceived " no unfairness to the witness in requiring him to give the trier the benefit of his expert opinion to that end." Id.
The Appellate Court subsequently has noted the narrow holding in Thomaston : " The Thomaston court was careful to limit its holding to the specific context and circumstances of the case. In so doing, the court did not bar, in other contexts and under other circumstances, application of the 'position that the admissibility of such [expert] testimony rests in the sound discretion of the trier.' [ Thomaston, 156 Conn.] at 173, 156 Conn. 166, 239 A.2d 515." Cavallaro v. Hospital of Saint Raphael, 92 Conn.App. 59, 68, 882 A.2d 1254 (2005).
The parties have devoted much attention to the applicability of the respective appellate decisions in Milliun v. New Milford Hospital, 129 Conn.App. 81, 20 A.3d 36 (2011), aff'd on other grounds, 310 Conn. 711, 80 A.3d 887 (2013). In Milliun, a medical malpractice action in which the plaintiff had disclosed nonparty treating physicians as expert witnesses, the Appellate Court held that, because such physicians had expressed causation opinions in the patient's medical records, such individuals could be compelled to testify at a deposition regarding such opinions. 129 Conn.App. at 108-09. On appeal from the judgment of the Appellate Court, the Supreme Court stated the following:
Indeed, the Supreme Court granted the petition for certification to appeal, limited to the following question: " Did the Appellate Court properly conclude that the trial court abused its discretion in its failure to admit certain statements contained within medical records to establish a causal connection between [the patient's] injuries and the alleged negligence?" Milliun v. New Milford Hosp., 302 Conn. 920, 28 A.3d 338 (2011).
We underscore that the narrow issue that was raised in the present case is whether a treating physician can be compelled to testify as an expert regarding an opinion previously expressed by that physician. As we have explained, there is no need to resolve that question under the particular circumstances of this case. The plaintiff has never claimed that she is entitled to compel expert opinion regarding matters on which [the plaintiff's] treating physicians had expressed no opinion in their reports. Indeed, the Appellate Court's opinion did not address that broader issue. Accordingly, we need not address that issue either.(Emphasis in original.) Milliun, 310 Conn. at 741. Based on this clear language, the court finds Milliun to be inapposite. That is, the Supreme Court expressly stated that it was not addressing the very issue presented here, where there is no indication in the record that the treating physicians expressed standard of care and/or causation opinions in the decedent's medical records.
There is a split of Superior Court authority on the issue in dispute. For example, in Hill v. Lawrence & Memorial Hospital, No. X04-HHD-CV4034622-S, 2008 WL 2802907, at *1 (Conn.Super. June 30, 2008) (Shapiro, J.) [45 Conn.L.Rptr. 789, ], the plaintiffs disclosed nonparty treating physicians as expert witnesses, despite the fact that those individuals did not consent to rendering opinion testimony. Those nonparty treating physicians moved for protective orders to preclude the plaintiffs from inquiring into damages or causation opinions. Distinguishing Town of Thomaston, 156 Conn. 166, 239 A.2d 515, the court in Hill reasoned: " Here, where the movants were employed as treating physicians, and not as adversary experts, it does not follow that, they, in the normal course of events, would expect to be called upon as expert witnesses for the plaintiffs on causation and damages.", 2008 WL 2802907, at *3. The court granted the motions and issued protective orders, stating:
Counsel are prohibited from questioning the movants on the issues of opinion concerning damages or causation, as to whether, if the mass had been detected in November 2001, the decedent could have been treated and would have survived, as specified in the plaintiffs' disclosure of expert witnesses as pertaining to them. They may be questioned as to factual matters related to their own conduct and treatment of the decedent., Id. at *5.
Similarly, in Baker v. Mongelluzzo, Superior Court, judicial district of Waterbury at Waterbury, No. UWY-CV12-6016555-S (Conn.Super. June 28, 2016) (Shapiro, J.), the court held that the defendant treating physician could " not be compelled to give standard of care opinion testimony regarding treatment by other health care providers. He may be questioned concerning opinions he already formulated, as expressed in medical records . . . [H]e may be questioned about his care and treatment of the plaintiff . . . and may be required to explain the reasons and basis for such care and treatment as related to the standard of care. He is not required to answer hypothetical questions which seek opinion testimony or regarding facts not known to him during his care of the plaintiff." (Slip Op. at 4.)
In Lotring v. Doherty, Superior Court, judicial district of New London at New London, No. KNL-CV14-6022396S (ConnSuper. Jan. 28, 2016) (Vacchelli, J.), the court issued a similar protective order,
precluding the plaintiff from asking the doctor questions about standard of care until such time as he is disclosed as an expert for the defense on such topic, or he otherwise voluntarily opined on the subject outside the scope of privilege for the reasons stated on the record. Plaintiff may ask question[s] on all other of his opinions as appear in the medical records or that he has voluntarily expressed outside of the scope of privilege, and plaintiff may inquire on all facts.
Order re: Objection #173.00. See also Carano v. Kabadi, No. KNL-CV11-6009251S, 2014 WL 3805522, at *2-5 (Conn. Super. June 27, 2014) (Devine, J.) [58 Conn.L.Rptr. 411, ] (sustaining objections by defendant treating physicians, who had not been disclosed as experts, to requests for admissions that sought expert opinions regarding breach of standard of care); Rinelli v. Danbury Hosp., Superior Court, judicial district of Danbury at Danbury, No. DBD-CV07-60004905, Order re: Motion for Protective Order #169.00 (Conn.Super. April 27, 2010) (Ozalis, J.) (granting motion for protective order to preclude opinion deposition testimony from treating healthcare professionals who did not consent to expert disclosure by plaintiff).
In contrast, in Kekelik v. Hall-Brooke Hospital, No. X05-CV98-0169297S, 2000 WL 1918016, at *4 (Conn.Super. Dec. 15, 2000) (Tierney, J.) [29 Conn.L.Rptr. 136, ], on which the plaintiff relies, the court denied a motion for protective order and permitted the plaintiff to elicit expert testimony from nonparty treating physicians employed by the defendant hospital. The court principally relied on the liberal scope of discovery under Practice Book § 13-2. Id.; see also Drown v. Markowitz, HHD-CV05-4010740-S, 2006 WL 2604986, at *1 (Conn.Super. Aug. 18, 2006) (Rittenband, J.T.R.) [41 Conn.L.Rptr. 855, ] (holding that the plaintiff could use the defendant treating physician " as an expert witness as to her own conduct" but not " as her expert witness in regard to matters other than her own conduct"); Matzkevich v. Waterbury Hosp. Health Ctr., 41 Conn.Supp. 373, 375, 576 A.2d 1320 (Conn. Super. Mar. 16, 1990) (Murray, J.) (granting motion to compel answers to certain deposition questions posed to treating healthcare professionals absent expert witness disclosure).
This court is persuaded to join the first line of cases, particularly Judge Shapiro's well-reasoned decisions in Baker and Hill, which held that treating physicians may not be compelled to provide expert opinions involuntarily, absent an expression of such opinions in the patient's medical records. First, it is well settled that " [a]n adversary can subpoena and force an expert witness retained and disclosed by the other side to disgorge an expert opinion at trial . . . Except for that particular scenario, however, one cannot usually require an expert to appear and render an opinion, even if qualified to do so, if the expert refuses to offer the opinion voluntarily. Thomaston v. Ives, 156 Conn. 166, 172-74, 239 A.2d 515 (1968)." (Citation omitted.) Izquierdo v. KIA Motors America, Inc., No. X07-CV00-0075599-S, 2003 WL 21499379, at *1 (Conn.Super. June 16, 2003) (Sferrazza, J.).
Second, where a treating physician is offered to give expert testimony regarding standard of care and/or causation, he or she must be disclosed as an expert witness. See Practice Book § 13-4(b); Wyszomierski v. Siracusa, 290 Conn. 225, 235-36, 963 A.2d 943 (2009); Wright v. Hutt, 50 Conn.App. 439, 451, 718 A.2d 969 (1998) (" [T]he disclosure requirements of Practice Book § 220(d) [now § 13-4] apply with equal force to treating physicians as well as to independent experts." [internal quotation marks omitted]); Carano,, 2014 WL 3805522, at *4 (" Treating physicians are subject to the same expert disclosure requirements as independent experts"). Here, the defendant treating physicians have not been disclosed by the defense as expert witnesses.
The Supreme Court's narrow decision in Town of Thomaston, 156 Conn. at 174, does not lead to a different conclusion. In contrast to the expert witness in that case (i.e., the appraiser to whom the Court perceived " no unfairness . . . in requiring him to give the trier the benefit of his expert opinion"), the witnesses at issue in the present case are defendants. Although they necessarily have a duty to testify to factual matter within their knowledge, the court concludes, as a matter of fundamental fairness, they have no duty to assist the plaintiff, in satisfying her burden of proof, by providing expert opinions that have been neither disclosed in an expert disclosure pursuant to Practice Book § 13-4 nor expressed in the patient's medical records.
The plaintiff contends that " [t]he defendants' position is directly contrary to Connecticut law, which permits a plaintiff to prove her case by calling and qualifying a defendant physician as an expert for the plaintiff." (#206.00 at 7.) In support of this argument, the plaintiff relies on Levett v. Etkind, 158 Conn. 567, 574-75, 265 A.2d 70 (1969); Console v. Nickou, 156 Conn. 268, 273-74, 240 A.2d 895 (1968); Allen v. Giuliano, 144 Conn. 573, 575, 135 A.2d 904 (1957); Snyder v. Pantaleo, 143 Conn. 290, 296, 122 A.2d 21 (1956); and Williams v. Chameides, 26 Conn.App. 818, 823, 603 A.2d 1211 (1992). The court finds these cases readily distinguishable because in each case the defendant treating physician voluntarily (or at least without objection) testified as to standard of care. Accordingly, those courts did not address whether a plaintiff could compel a defendant treating physician to provide expert testimony involuntarily.
The plaintiff also argues that the defendants essentially seek the creation of a testimonial privilege for treating physicians. The court disagrees. As discussed above, " there is a distinction between the duty of a witness to testify to factual matter within his knowledge and the imposition of a requirement that he voice his opinion concerning a subject with which he is conversant as an expert." Thomaston, 156 Conn. at 172. The court's holding is strictly limited to the circumstances before it, namely, where the treating physicians have not been disclosed by the defense as expert witnesses and where there is no suggestion in the record that they have expressed opinions of an expert nature in the patient's medical records. The treating physicians may not withhold testimony regarding their factual knowledge; nor may they withhold testimony of an expert nature in the event they are disclosed as expert witnesses by the defense. Thus, because the decision does not permit the withholding of factual matter within the witness's knowledge, no testimonial privilege is created.
CONCLUSION
For the foregoing reasons, and for good cause shown, the motions for protective order are granted. In the absence of an expert witness disclosure, the defendant treating physicians may not be compelled to give causation and/or standard of care opinions regarding treatment by other providers or opinions that do not appear in the decedent's medical records. Such treating physicians may be questioned as to their educational and professional background and experience, factual matters about their own care and treatment of the plaintiff's decedent, and the reasons and basis for such care and treatment as related to the standard of care. Moreover, such defendant treating physicians are not required to answer hypothetical questions that solicit opinions or assume facts not known to the witness during his care of the plaintiff's decedent.
The court has reviewed the instances in which Dr. Lawlor was instructed during his November 29, 2015 deposition not to answer. (See #206.00, Ex. B.) Notwithstanding the court's ruling herein, and consistent herewith, the court finds that the instructions that are reflected at 122:13-23, 151:8-16, 155:14-19, and 155:21-156:3 were improper. If posed again, those questions must be answered absent any privilege.
It is so ordered.