Opinion
No. CV 09-503067 S
March 5, 2010
MEMORANDUM OF DECISION RE PLAINTIFFS' MOTION TO STRIKE (#123)
PROCEDURAL AND FACTUAL BACKGROUND
The plaintiffs, James and Cynthia Teixeira, commenced this medical malpractice action against the defendants, Yale New Haven Hospital, Yale University School of Medicine, Yale Medical Group, Dirk C. Johnson, M.D., Erik Carlson, M.D., Lee Rubin, M.D., John Sather, M.D., Rick Kulkarni, M.D., Jeffrey Sumner, M.D., and Center for Orthopedics by summons and complaint, along with a certificate of good faith and a probable cause report, on June 24, 2009. A state marshal completed service on the above named defendants on June 10, 2009 and June 15, 2009. Defendants Yale New Haven Hospital, Jeffrey Sumner, and Center for Orthopedics entered appearances on July 14, 2009. Thereafter, the plaintiffs filed an amended complaint on September 8, 2009.
The plaintiffs withdrew their action as against Johnson, Rubin, Sather, and Kulkarni on September 4, 2009.
In their second amended complaint, the plaintiffs allege the following facts. On September 22, 2008, the plaintiff, James Teixeira, fell from the roof of a two-story building and suffered a Schatzker V/VI tibial plateau fracture with posterior displacement of the distal tibial fracture fragment to his left leg. The defendants agreed to diagnose and treat the plaintiff for his injuries, including the necessary testing and monitoring during the plaintiff's hospitalization. On September 23, 2008, the plaintiff underwent closed reduction with external fixation surgery at Yale New Haven Hospital for the injury to his left leg. Three days later, on September 26, 2008, the plaintiff was diagnosed with blood clots in the popliteal artery and tibial arteries of his left leg. Due to these blood clots, the defendants amputated the plaintiff's left leg above the knee on October 1, 2008.
Unless otherwise noted, "the plaintiff" refers to James Teixeira.
The plaintiffs allege, inter alia, that the left leg amputation and injuries resulting therefrom occurred due to the negligence of the defendants in that: they failed to obtain a consultation from a vascular surgeon; failed to diagnose the plaintiff's popliteal artery injury "by means of non-invasive [d]uplex ultrasonography, arteriogram, or multi-slice helical computed tomographic angiography;" failed to render timely treatment for that injury and the arterial thrombosis of the plaintiff's tibial arteries; and failed to monitor, or give orders to monitor, the plaintiff's condition after the September 23, 2008 surgery, including a failure to monitor coagulability, circulation, and compartment pressures in the plaintiff's left leg. The plaintiffs also allege that the defendants were negligent after the September 23, 2008 surgery in failing to continue thrombo prophylaxis and failing to obtain pressure indices. The plaintiff alleges that he has incurred present, and will incur future, medical expenses, as well as a loss of earning capacity. The plaintiff's wife alleges that she has incurred the loss of support, comfort, society, and affection of her husband.
On September 22, 2009 the defendants, Jeffrey Sumner and Center for Orthopedics, filed an answer and a special defense. Specifically, the defendants assert: "If the plaintiffs suffered damages and/or injuries in the manner and to the extent as alleged in the complaint, which is hereby expressly denied, then the same were due to the plaintiffs' own negligence in that: The plaintiff, James Teixeira, failed to use appropriate and reasonable care while working on a two-story roof on September 22, 2008. That the plaintiff's failure to use reasonable care caused him to fall from said two-story roof. That plaintiff's fall caused him to suffer a Schatzker V/VI tibial plateau fracture with posterior displacement of the distal tibial fracture fragment of the left leg. That the plaintiff's negligence proximately caused the severe and traumatic left leg injury that led to his left leg amputation on October 1, 2008."
The plaintiffs filed the present motion to strike the defendants' special defense on September 28, 2009. On October 7, 2009, the defendants filed an objection to the plaintiffs' motion to strike, asserting that the plaintiff proximately caused his own injuries. The motion was argued on November 16, 2009 at short calendar.
DISCUSSION
"[A] plaintiff can [move to strike] a special defense . . ." Nowak v. Nowak, 175 Conn. 112, 116, 394 A.2d 716 (1995). "[A] motion to strike challenges the legal sufficiency of a pleading . . . and, consequently, requires no factual findings by the trial court." (Internal quotation marks omitted.) American Progressive Life Health Ins. Co. of New York v. Better Benefits, LLC, 292 Conn. 111, 120, 971 A.2d 17 (2009). "In ruling . . . on the . . . motion to strike, the trial court [is obligated] to take the facts to be those alleged in the special defenses and to construe the defenses in the manner most favorable to sustaining their legal sufficiency." Connecticut National Bank v. Douglas, 221 Conn. 530, 536, 606 A.2d 684 (1992).
Our Appellate Court has recognized comparative negligence as a viable defense "[i]n situations where the claim of malpractice sounds in negligence." Somma v. Gracey, 15 Conn.App. 371, 378, 544 A.2d 668 (1988) (recognizing that other jurisdictions have long sanctioned this defense in medical malpractice actions); see also Juchniewicz v. Bridgeport Hospital, 281 Conn. 29, 34, 914 A.2d 511 (2007); Bradford v. Herzig, 33 Conn.App. 714, 716, 638 A.2d 608, cert. denied, 229 Conn. 920, 642 A.2d 1212 (1994). Where the comparative negligence of the plaintiff is alleged by the defendant, "[i]t shall be affirmatively pleaded by the defendant or defendants, and the burden of proving such [comparative] negligence shall rest upon the defendant or defendants." General Statutes § 52-114; see Bradford v. Herzig, supra, 722; See also Practice Book § 10-53 (requiring the defense of contributory negligence to be specially pled).
General Statutes § 52-572h(b) lays out Connecticut's system of comparative negligence: "In causes of action based on negligence, contributory negligence shall not bar recovery in an action by any person or the person's legal representative to recover damages resulting from personal injury . . . if the negligence was not greater than the combined negligence of the person or persons against whom recovery is sought . . . The economic or noneconomic damages allowed shall be diminished in the proportion of the percentage of negligence attributable to the person recovering which percentage shall be determined pursuant to subsection (f) of this section."
In the present motion, the plaintiffs seek to strike the defendants' special defense of contributory negligence for legal insufficiency. The plaintiffs contend that their complaint seeks compensation only for the injuries and damages caused by the defendants' medical negligence, and not for the injuries that the plaintiff sustained when he fell from the roof, which gave rise to the medical care. Specifically, in their memorandum of law in support of their motion to strike, the plaintiffs reason that the "[d]efendants' [s]pecial [d]efense . . . that Teixeira failed to use appropriate and reasonable care while working on the roof does not constitute contributory/comparative negligence in this medical malpractice case."
According to Practice Book § 10-3, "[g]enerally, a [party] is required to identify specifically any statute on which an action is grounded . . . At the same time, our courts repeatedly have recognized that the rule embodied in Practice Book § 10-3 is directory and not mandatory . . ." (Citations omitted; internal quotation marks omitted.) Burton v. Stamford, 115 Conn.App. 47, 65, 971 A.2d 739 (2009). Therefore, it was not a fatal error for the defendants to omit a citation to General Statutes § 52-572h in their special defense.
The defendants, in their objection to the plaintiffs' motion to strike, argue that the plaintiffs' comparative negligence is an issue of fact that can be submitted to a jury, and that the plaintiff proximately caused the injuries alleged in the complaint through the plaintiff's fall, rather than by the treatment rendered by the defendants. The defendants maintain that it is proper to plead contributory negligence as a special defense in a medical malpractice case, that their defense was well pleaded, and that, factually, the plaintiff's injuries could have been caused by his own negligence.
In their opposition to the plaintiffs' motion to strike, the defendants rely primarily on Somma v. Gracey, supra, 15 Conn.App. 371 and Corello v. Whitney, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 97 0156438 (August 24, 1999, D'Andrea, J.). In Somma, the plaintiffs sought the defendants' legal counsel in the sale of a business, and, subsequently, brought an action for legal malpractice against the defendants. Somma v. Gracey, supra, 15 Conn.App. 373-74. The plaintiffs appealed the verdict and judgment of the Superior Court, Judicial District of Waterbury, O'Brien, J., arguing, inter alia, that the court had "[e]rred in instructing the jury on the defense of comparative negligence." Id., 377. The Appellate Court determined that the special defense of comparative negligence was proper in legal malpractice cases by analogizing to foreign jurisdictions that permit the same defense in medical malpractice actions.
In Corello, the administrators of a decedent's estate brought a medical malpractice action against the doctors and hospital responsible for the treatment of the decedent. Corello v. Whitney, supra, Superior Court, Docket No. CV 97 0156438. The defendants prescribed medication for the decedent, which the decedent used to commit suicide. The defendants raised comparative negligence as a special defense, asserting that "[t]he death of the plaintiffs' decedent was proximately caused by his own deliberate acts and negligence in not following instructions as to the dosage of the medication prescribed for him . . . and in failing to exercise reasonable care for his own safety." Id. In denying the plaintiffs' motion to strike the defendants' special defense, the Superior Court, D'Andrea, J., reasoned that whether the decedent's overdose was foreseeable was an issue of fact and "granting the plaintiff's motion to strike the . . . special defense would be premature." Id.; see also Edwards v. Tardiff, 240 Conn. 610, 618, 692 A.2d 1266 (1997) (liability imposed on physician where suicide was foreseeable risk).
Despite the defendants' reliance on Corello, the case is distinguishable factually from the present matter. In Corello, the defendants furnished the condition that provided the opportunity for the plaintiff's alleged comparative negligence. The facts necessary to prove comparative negligence in Corello required a trial because they arose out of the same course of treatment upon which the plaintiff had based their suit. Conversely, in the present matter, the defendants claim that the plaintiff proximately caused his own injuries by incurring the injury that necessitated medical care. Here, the plaintiff's alleged negligence furnished the condition that gave rise to the defendants' duty to treat the plaintiff. Moreover, here, the facts which the defendants claim are operative to prove the plaintiffs' comparative negligence antedate the allegedly negligent care rendered by the defendants.
Another medical malpractice case in which the defendants raised comparative negligence as a special defense is Poulin v. Yasner, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. CV 94 0141928 (February 26, 1997, Lewis, J.). In Poulin, the plaintiff sued his primary care physician for failing to diagnose and treat his pancreatitis and alcoholism. The plaintiff had been under the defendant's care for six years when he first complained of abdominal pain. Poulin v. Yasner, 64 Conn.App. 731-32, 781 A.2d 422, cert. denied, 258 Conn. 911, 782 A.2d 1245 (2001) (appeal from directed verdict by Tierney, J.). The defendant raised the special defense of contributory negligence, claiming, inter alia, that the plaintiff was the proximate cause of his own injuries in that he drank alcohol in derogation of the defendant's warnings and instructions, and that he failed to take reasonable care of his health and well-being. Poulin v. Yasner, supra, Superior Court, Docket No. CV 94 0141928. The plaintiff moved to strike the defendant's special defense, arguing, inter alia, that the defense failed to establish a duty owed by the plaintiff to the defendant. In denying the plaintiff's motion to strike, the court, by analogy to simple negligence cases, reasoned that the plaintiff had the duty to exercise due care to avoid harm to himself. Therefore, the court concluded, the defendant was permitted to introduce evidence at trial to rebut the statutory presumption of due care provided by General Statutes § 52-114.
In Poulin, the defendant was the plaintiff's primary care physician, and had treated the plaintiff for the greater part of a decade before the plaintiff became ill. Here, the defendants undertook their duty to treat the plaintiff only after he was injured. The defendants have not asserted, like the Poulin defendant, that the plaintiff failed to follow their warnings or instructions, or that the plaintiff failed to seek timely medical treatment. Moreover, the defendants here were not primary care physicians with a long established, professional duty to the plaintiff, but specialists engaged to treat an injury that occurred before their duty to treat the plaintiff arose.
At most, both Corello and Poulin stand for the proposition that a patient owes a duty of reasonable care during the course of treatment. Neither in Corello, nor in Poulin, did the respective opinions lend credence to the notion that a plaintiff-patient's pre-treatment negligence can be raised as a shield by a defendant-doctor in a medical malpractice suit sounding in negligence. Rather, these cases fall within the precept emphasizing that a patient is duty bound reasonably to obey the instructions, warnings, and course of treatment prescribed by their doctors while under their care. See, e.g., Parkins v. United States, 834 F.Sup. 569, 575 (D.Conn. 1993), citing Chubb v. Holmes, 111 Conn. 482, 488, 150 A. 516 (1930) ("A patient has a duty to conform reasonably to the necessary prescriptions and treatment and follow reasonable and proper instructions given, and failure to do so which directly and materially contributes to his injury will prevent a recovery in an action for malpractice"); Davis v. Eckhardt, Superior Court, judicial district of Stamford-Norwalk at Stamford, Docket No. 027607 3 (March 6, 1978, Levister, J.), appeal dismissed, 175 Conn. 754, 386 A.2d 256 (1978).
It appears that the issue raised by the present motion is one of first impression; therefore, the court turns to persuasive authority to inform its decision. At the outset, it is important to note the implications of this issue, which are set forth in Comment (m) to § 7 of the Restatement (Third) of Torts (2000): "[T]he consequences of the plaintiff's negligence are sometimes the very conditions a doctor or other service provider agrees to treat. Examples include a plaintiff who seeks medical treatment for injuries received in an automobile accident negligently caused by the plaintiff, for injuries received in a skiing accident negligently caused by the plaintiff, or maybe even for heart disease caused by the plaintiff's refusal to exercise or eat properly. No reported case holds that a medical-malpractice plaintiff's recovery is barred or reduced because of that type of negligence . . . This does not mean that the plaintiff's `pre-presentment' negligence is irrelevant. The defendant is liable only for the damages the defendant's negligence caused. Thus, a doctor who treats an accident victim is not liable for the original injury, whether the accident was caused by the patient's negligence or not.
It is preferable to use the term "pre-treatment" rather than "pre-presentment," the latter occupying its own realm as a term of art in the medical profession. See Stedman's Medical Dictionary (27th Ed. 2000) (defining present as: "To appear for examination, treatment, etc., said of a patient").
"It is difficult to account for pre-presentment negligence on traditional tort principles. In each case, the plaintiff's own negligence was a legal cause of the damages. The doctor's subsequent negligence was an intervening cause, but intervening professional negligence is usually foreseeable . . . The best explanation of pre-presentment negligence is that the consequences of the plaintiff's negligence — the medical condition requiring medical treatment — caused the very condition the defendant doctor undertook to treat, so it would be unfair to allow the doctor to complain about that negligence.
"Not all forms of plaintiff's negligence in a medical-malpractice case fall under this rationale. A patient's negligence in cooperating with treatment is not the condition the doctor undertook to treat . . . The distinction is not between a plaintiff's conduct before and after going to the doctor. Pre-relationship conduct could affect the way the doctor renders medical care, such as when a patient negligently loses medical records from a previous treatment. Unless this information was available to the doctor when the relationship was formed, it was not part of the condition the doctor undertook to treat." (Emphasis added.) 1 Restatement (Third), Torts § 7, cmt. m, p. 70 (2000).
Foreign jurisdictions have taken different approaches in analyzing this issue. There are those jurisdictions that disallow entirely defendant-doctors from raising a plaintiff's pre-treatment negligence on policy grounds. Secondly, there are those that engage in a proximate cause analysis to determine whether a defendant-doctor may raise the plaintiff-patient's pre-treatment negligence. Finally, there are jurisdictions that allow defendant-doctors to raise all evidence of a plaintiff-patient's alleged negligence. For the reasons stated below, the view of those jurisdictions following the second approach comports with the position that Connecticut has taken with respect to comparative negligence in medical malpractice cases.
Georgia and Kansas are representative of those jurisdictions that dispense with the issue on policy grounds. In 2005, the Court of Appeals of Kansas took up the issue in Zak v. Riffel, 34 Kan.App.2d 93, 94, 115 P.3d 165 (Kan.Ct.App. 2005). The plaintiff brought an action against the defendant doctor for medical malpractice in the death of her husband. Id., 94. At trial, the defendant was permitted to introduce evidence of the plaintiff's decedent's "obesity and lifestyle" and the court instructed the jury on comparative negligence for the same. Id.
The plaintiff appealed, and the Court of Appeals explained that "[a] patient's prior condition which required him to be under a physician's care cannot be a basis for comparative fault in a negligence claim against the physician . . . It is inconsistent with the reasonable and normal expectations for the court to excuse or reduce the medical provider's liability simply because it was the patient's own fault that he or she required care in the first place." (Internal quotation marks omitted.) Id., 101-02.
See also Martin v. Reed, 200 Ga.App. 775, 777, 409 S.E.2d 874, cert denied, 1991 Ga. Lexis 639 (Ga.Ct.App. 1991) ("Those patients who may have negligently injured themselves are nevertheless entitled to subsequent non-negligent medical treatment and to an undiminished recovery if such subsequent non-negligent treatment is not afforded"); Wolbers v. Finley Hospital, 673 N.W.2d 728, 732 (2003), rehearing denied, 2004 Iowa Sup. Lexis 59 (Iowa 2004) ("[t]he defense of contributory negligence is inapplicable when the patient's conduct provides the occasion for medical attention, care, or treatment which later is the subject of a medical malpractice claim"); Durphy v. Kaiser Foundation Health Plan of Mid-Atlantic States, Inc., 698 A.2d 459, 467 (App. D.C. 1997) (same); Bryant v. Calantone, 286 N.J.Super. 362, 368, 669 A.2d 286 (N.J.Super.Ct.App.Div. 1996) ("[t]he pre-treatment health habits of a patient are not to be considered as evidence of fault that would have otherwise been pled in bar to a claim of injury due to the professional misconduct of a health professional"); Jensen v. Archbishop Bergan Mercy Hosp., 236 Neb. 1, 12, 459 N.W.2d 178 (Neb. 1990) (plaintiff not contributorily negligent for conduct that furnishes occasion or condition for the medical care which is basis of malpractice action); Fritts v. McKinne, 934 P.2d 371, 374-75, 1996 Ok.Civ.App. 132 (Okla.Civ.App. 1996), cert. denied (February 11, 1997) (same).
Florida and Texas on the other hand, have eschewed hard and fast rules for an analysis based on proximate cause. In Matthews v. Williford, 318 So.2d 480, 481 (Fla.Dist.Ct.App. 1975), a Florida plaintiff brought a wrongful death action for medical negligence against the defendant, a doctor who had treated the plaintiff's decedent for a heart attack. At trial, it developed that the plaintiff's decedent's pre-treatment negligence was that he continued to smoke, became overweight, and failed to seek treatment after a previous heart attack. Id., 482.
On appeal, the Florida District Court of Appeals, Second District, held that, "[c]onduct prior to an injury or death is not significant in an action for damages . . . unless it is a legal or proximate cause of the injury or death — as opposed to a cause of the remote conditions or occasion for the later negligence. [The conduct of a patient which furnishes the occasion for medical treatment] is not available as a defense to malpractice which causes a distinct subsequent injury." Id., 483; see also Whitehead v. Linkous, 404 So.2d 377, 379 (Fla.Dist.Ct.App. 1981) (pre-treatment conduct is not comparative negligence unless it is proximate cause of damages sought in case).
The Court of Civil Appeals of Texas took up this same issue in Sendejar v. Alice Physicians Surgeons Hospital, 555 S.W.2d 879, 879 (Tex.Civ.App. 1977). There, the plaintiff brought a medical malpractice suit against the hospital and doctor who treated his son, who had been admitted to the hospital following a motor vehicle accident. Id., 882. As an affirmative defense, the defendants asserted that the plaintiff's son proximately caused the injury he suffered, paralysis from the chest down, in negligently overturning and wrecking his motor vehicle. Id. The court found that the defense of contributory negligence should not have been submitted to the jury.
Although the Texas Civil Appeals Court found that it was error to submit the defense of contributory negligence to the jury, they held that such error was "immaterial and harmless."
In considering the propriety of charging the jury on comparative negligence, the Texas court emphasized: "To constitute a bar to a suit for malpractice, the contributory negligence of the patient must have been an active and efficient contributing cause of the injury made the basis of the patient's claim; it must have been simultaneous and co-operating with the alleged fault of the defendant, must have entered into the creation of the cause of action and must have been an element in the transaction which constituted it . . ." (Citations omitted.) Id., 885.
See also Axelrad v. Jackson, 142 S.W.3d 418, 428 (Tex.App. 2004), rev'd on other grounds, 221 S.W.3d 650 (Tex. 2007) ("Although a patient's contributory negligence can serve to diminish recovery under modern comparative negligence principles, it is patently clear that such negligence must be contemporaneous with the malpractice of the physician . . . If the patient's negligent act merely precedes that of the physician and provides the occasion for medical treatment, contributory negligence is not a permissible defense"); see also Schagger v. Pfeiffer, 244 A.D. 739, 739 (N.Y.App.Div. 1935) (patient's pre-treatment negligence, no matter to what degree, should not be considered as contributory negligence); Lamoree v. Binghamton General Hospital, CT Page 6347 68 Misc.2d 1051, 1056, 329 N.Y.S.2d 85 (N.Y.Sup.Ct. 1972) (holding evidence of decedent's pre-treatment negligence shall not go to contributory negligence because tortuous acts of defendants were successive and independent of any act of the decedent); Lambert v. Shearer, 84 OhioApp.3d 266, 284, 616 N.E.2d 965 (OhioCt.App. 1992) ("[i]t is patently clear that [contributory] negligence must be contemporaneous with the malpractice of the physician . . . Hence, it is improper to suggest . . . that the negligent conduct of the patient prior to coming under the care of the defendant physician could serve to constitute negligence . . . Sick people deserve the same care whether they smoke, drink, drive too fast, or engage in socially unacceptable behavior").
Conversely, Pennsylvania permits, on comparative fault grounds, any degree of the plaintiff-patient's pre-treatment negligence to reduce an award. In Berry v. Friday, 324 Pa.Super. 499, 502, 472 A.2d 191 (Pa.Super.Ct. 1984), the appellant challenged a jury charge of contributory negligence and argued that contributory negligence was inapplicable given the facts of the case. In determining whether it was proper for the trial court to submit the charge to the jury based on the evidence that the plaintiff's decedent did not follow the defendant doctor's advice to quit smoking and lose weight, the court stated that "[although] evidence in the case does not strongly favor a finding of contributory negligence, we cannot ignore the slim possibility . . . where there is any evidence which alone would justify an inference of the disputed fact, it must go to the jury, no matter how strong or persuasive may be the countervailing proof." (Emphasis in original; internal quotation marks omitted.) Id., 505.
See Alexander v. University of Pittsburgh Medical Center System, 185 F.3d 141, 150 (3d Cir. 1999) ("Like it or not, Pennsylvania law gives very little discretion to the trial judge and requires a contributory negligence charge even when contributory negligence is only a slim possibility"); see also Shinholster v. Annapolis Hospital, 471 Mich. 540, 552, 685 N.W.2d 275 (Mich. 2003) ("[i]f a defendant presents evidence that would allow a reasonable person to conclude that a plaintiff's negligence constituted a proximate cause of her injury and subsequent damage, the trier of fact must be allowed to consider such evidence in apportioning fault").
It is worthwhile to note that Tennessee once followed a similar approach, but has since reversed course. See Mercer v. Vanderbilt University, 134 S.W.3d 121, 127-31 (Tenn. 2004) (overturning Gray v. Ford Motor Co., 914 S.W.2d 464, 467 (Tenn. 1996) citing the rule laid down in Martin v. Reed, supra, 200 Ga.App. 777).
In Connecticut, pursuant to Somma, comparative negligence is a valid special defense in medical malpractice actions sounding in negligence, and this defense has been raised effectively in situations where patients have breached their duty of reasonable care during the course of medical treatment, as in Corello and Poulin. Therefore, the negligent conduct of a patient which furnishes the occasion for medical treatment will be legally sufficient to support a special defense of comparative negligence where the negligence alleged of the plaintiff is connected or contemporaneous with the alleged negligence of the physician.
In the present matter, the plaintiffs allege in their amended complaint separate instances where the defendants breached their duty to the plaintiff. Since the plaintiff-patient's negligence in causing the initial injury is separate, distinct, and attenuated from the alleged subsequent medical malpractice of the defendant, the defendant will not be permitted to raise the plaintiff-patient's alleged pre-treatment negligence at trial. Therefore, because the plaintiffs have alleged specific instances of negligence on the part of the defendants, which caused a separate and distinct injury from that sustained by the plaintiff initially, the special defense, asserting comparative negligence, must fail.
CONCLUSION
For the aforestated reasons, the plaintiff's motion to strike the defendants' special defense of comparative negligence is granted.