Summary
rendering judgment against plaintiff when “the plaintiff failed to plead res ipsa loquitur in his revised complaint, making it an improper issue for court to consider”
Summary of this case from White v. Mazda Motor of Am., Inc.Opinion
No. CV05-4010822S
July 25, 2008
MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (#121)
On February 10, 2003, Angel Santiago, the plaintiff, was admitted to the Hospital of Saint Raphael, the defendant, for surgery to remove cancerous lesions on his forehead and nose. During the surgical procedure, a fire started and burned the plaintiff's face, causing injury. The plaintiff alleges in his revised complaint that the fire was caused by the negligence of the defendant. The plaintiff further alleges that the defendant was negligent in not properly mitigating known risk factors, such as the plaintiff's facial hair, the use of supplemental oxygen, and the use of an electric knife during the procedure.
The defendant filed a motion for summary judgment with memorandum in support on May 19, 2008, arguing that the defendant is entitled to judgment in this medical malpractice action because the plaintiff has no expert to testify as to causation and damages. The plaintiff filed a memorandum in opposition at short calendar on June 2, 2008, arguing that the plaintiff can testify as to the effect of the fire on his physical condition. At short calendar on June 2, the plaintiff conceded that he has no causation expert, but argued that this case might not require one. For reasons more fully set forth herein, the court grants the defendant's motion for summary judgment.
"`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 . . . The test is whether the party moving for summary judgment would be entitled to a directed verdict on the same facts.' Leisure Resort Technology, Inc. v. Trading Cove Assoc., 277 Conn. 21, 30-31, 889 A.2d 785 (2006)." Nat'l City v. Blackledge County, Superior Court, judicial district of Hartford,
Complex Litigation Docket at Hartford, Docket No. X03 CV 054028648 (June 25, 2008, Langebach, J.T.R.). "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." (Citation omitted.) Wilson v. New Haven, 213 Conn. 277, 279, 569 A.2d 829 (1989).
The well established elements of a medical malpractice claim "require the plaintiff to prove by a preponderance of the evidence: (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." (Internal quotation marks omitted.) Hayes v. Camel, 283 Conn. 475, 484, 927 A.2d 880 (2007).
Summary judgment is appropriate for the defense if expert testimony regarding any of the required elements of a medical malpractice action is lacking. "[The appellate court] has approved the grant of a summary judgment in a medical malpractice case when . . . it is evident that the plaintiff will be unable to produce at trial an expert witness to testify regarding [one of the required elements]." Sullivan v. Yale-New Haven Hospital, Inc., 64 Conn.App. 750, 766, 785 A.2d 588 (2001).
"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 even to a lay person. "(Citations omitted; internal quotation marks omitted.) Dimmock v. Lawrence Memorial Hospital, Inc., 286 Conn. 789, 813 (2008). But, when the medical issue presented is not within the knowledge of the typical layperson, expert testimony is required. See, Boone v. William Backus Hospital, 272 Conn. 551, 565, 864 A.2d 1 (2005).
"In this state, decisions indicating that the exception to the general rule of expert testimony in medical malpractice case might be applicable have involved foreign objects discovered in the body of a patient after surgery or abnormal injuries sustained during surgery [ Puro v. Henry, 188 Conn. 301, 308, 449 A.2d 176 (1982)] (needle found in patient after hernia operation); Console v. Nickou, 156 Conn. 268, 274-75, 240 A.2d 895 (1968) (needle left in patient after delivery of child); Allen v Giuliano, 144 Conn. 573, 575, 135 A.2d 904 (1957) (lacerations
to patient's leg in removal of cast); Slimak v. Foster, 106 Conn. 366, 370, 138 A.2d 153 (1927) (piece of surgical instrument left in patient after nose operation.)." Boone v. William Backus Hospital, supra, 272 Conn. 567-68.
In the present case, the procedures and the risk factors related to head and neck cancer surgery do not fall within the common knowledge of laypersons. Nor does the correlation between proper use or misuse of instrumentation during head and neck surgery and the plaintiff's injuries fall within the common knowledge of laypersons. Therefore, the plaintiff needs expert testimony to establish the three elements of medical negligence.
In the present case, the plaintiff's only expert witness is Sophia A. Lang, a registered nurse. Pursuant to Practice Book § 13-4, the plaintiff disclosed that Lang would testify regarding the standard of care and the deviation therefrom. According to this disclosure, Lang's testimony does not address the issue of causation. Specifically, the disclosure states that:
The above referenced witness is expected to testify, where relevant and necessary, as to her opinions and conclusions regarding the applicable standard of care owed to Angel Santiago and the deviation therefrom by the Hospital of St. Raphael, its owners, agents, operators and employees relating to an operating room accident which occurred on February 10, 2003 at the Hospital of St. Raphael.
The plaintiff argues that the motion for summary judgment should be denied because it is uncontested that the plaintiff suffered serious injuries. Defense counsel treated this argument as a claim that the doctrine of res ipsa loquitur applies to the present case. Therefore, this court now considers the applicability of the doctrine of res ipsa loquitur.
"The doctrine of res ipsa loquitur, literally the thing speaks for itself, permits a jury to infer negligence when no direct evidence of negligence has been introduced . . . The doctrine of res ipsa loquitur applies only when two prerequisites are satisfied. First, the situation, condition or apparatus causing the injury must be such that in the ordinary course of events no injury would have occurred unless someone had been negligent. Second, at the time of the injury, both inspection and operation must have been in the control of the party charged with neglect." (Internal quotation marks omitted.) Boone v. William Backus Hospital, supra, 272 Conn. 575-76.
Had the plaintiff intended to rely upon the doctrine of res ipsa loquitur, he should have pled it. "A complaint must fairly put the defendant on notice of the claims of negligence against him . . . The purpose of the complaint is to limit the issues to be decided at the trial of a case and is calculated to prevent surprise . . . Only those issues raised by the plaintiffs in the latest complaint can be tried . . ." Gilbert v. Middlesex Hospital, 58 Conn.App. 731, 734, 755 A.2d 903 (2000). See, also Schurgast v. Schumann, 156 Conn. 471, 479, 242 A.2d 695 (1968) ("If the case is a proper one for the application of the doctrine of res ipsa loquitur, the plaintiff, by pleading the particular cause of accident, in no way loses his right to rely thereon").
In the present case, the court finds that the doctrine of res ipsa loquitur is inapplicable. First, the plaintiff failed to plead res ipsa loquitur in his revised complaint, making it an improper issue for this court to consider. Second, because "a jury reasonably could conclude that the [plaintiff's] injuries . . . could have occurred in the absence of negligence," Boone v. William Backus Hospital, supra, 272 Conn. 576, the first requirement for the application of the doctrine of res ipsa loquitur has not been satisfied.
As stated above, the plaintiff lacks expert testimony to establish causation, the third required element of a medical malpractice claim; and the doctrine of res ipsa loquitur does not apply in the present case. Thus the defendant is entitled to judgment, as a matter of law. For these reasons, the court grants the defendant's motion for summary judgment.