Opinion
No. CV 01-0559435 S
September 26, 2003
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
In this case the defendant hospital has filed a motion for summary judgment in a claim arising out of the death of a child who was four years old. The plaintiff concedes that the operative complaint is a revised complaint filed September 6, 2002. It alleges that the mother brought the child to the emergency room at 5:35 p.m. The child was diagnosed with an ear infection and was given Tylenol, a Codeine medication, and injections of a medication called Rocephin. The child threw up almost immediately, sweated profusely and his face turned white. The mother went to the nurse's station and was told this condition was a reaction to the shots but the child could be brought home. The mother left the hospital and waited for a cab but the child began to vomit violently. The mother returned to the emergency room, was given a basin and a washcloth and ordered by the nurse to leave the hospital. The mother then returned to the cab, the child continued to throw up and was unable to stand. The mother returned to the emergency room area and the complaint alleges the child was refused examination by a doctor. A nurse then ordered them three times to leave and was told that if they refused, security would be called. The mother then returned home; the child was sweating, his breathing was shallow, he was disorientated, limp, was unable to sit on the toilet after asking to go to the bathroom. The mother at 9:35 p.m. called the hospital, said the child was violently ill and had vomited with diarrhea. His fists were clenched, breathing was poor, and his lips and gums were white. Despite the description given of the child's condition the hospital staff did not advise the mother to come back to the hospital. But the mother returned to the hospital with the child in a comatose state. Intake information was given at 11:15 p.m. There was treatment given, but the child died at 2:44 a.m.
The context in which the motion must be addressed is that another judge precluded the plaintiff from presenting expert witnesses because of a failure to comply with scheduling orders. This decision has not been CT Page 10881-cg contested at least for the purposes of this motion. Also as regards this motion the defendant would appear to argue that even if the facts as alleged in the complaint are taken as true, no liability can be shown because of the absence of expert testimony.
The plaintiff's position is that the claim lies in "ordinary negligence" and expert testimony is not needed "to determine if the hospital breached its duty to the decedent and his parents by failing to readmit him under the circumstances as alleged." Alternatively it is argued that even if the action is viewed as lying in malpractice "the defendant manifested such a gross lack of care in refusing to readmit the decedent under the circumstances alleged and by the evidence produced taken in the light most favorable to the (plaintiff) that expert testimony is not required."
(1)
Is this an action in ordinary negligence or in medical malpractice? Trimel v. Lawrence Memorial Hospital et al., 61 Conn. App. 353 (2001), set forth the test for deciding this question. At page 358 the court said "whether a claim sounds in medical malpractice (is determined by) whether (1) the defendants are sued in their capacities as medical professionals, (2) the alleged negligence is of a specialized medical nature that arises out of the medical-professional relationship, and (3) the alleged negligence is substantially related to the medical diagnoses or treatment and involved the exercise of medical judgment."
The plaintiff's argument that this is a case of ordinary negligence not medical malpractice rests on his position that the hospital by refusing to re-admit and treat this child "violated its own set procedures which were established for the safety of its patients. To determine whether this failure, if believed, constitutes negligence does not require expert testimony." The plaintiff notes that the Discharge Instructions of the defendant advised the mother to "return for any problems." She was advised to call her doctor if the child had "any new or severe symptoms," any signs of allergy ". . . diarrhea." The instructions then say "seek further medical treatment or examination as discussed. If Kyle has problems that we did not list, CALL YOUR DOCTOR right away. If you can't reach your doctor, come back to the emergency department. If you have questions call us." In a word, the plaintiff argues that ". . . it does not require the testimony of a doctor to assist a jury in determining if the Hospital's violation of its own instructions for the safety of its patients constitutes negligence."
The problem with the plaintiff's position is that it appears to confuse CT Page 10881-ch the question of whether the action sounds in ordinary negligence with the separate question of whether to prove medical malpractice expert testimony is needed in a situation where a defendant hospital has itself issued or set up its own protocol or standards regarding the medical services that are to be provided to people requesting care from the hospital. The court will deal with that issue shortly.
In other words if the Trimel standards for a medical malpractice case are otherwise met such a case is not somehow turned into an "ordinary negligence case" because expert testimony is not necessary to prove the malpractice because for example it is gross and obvious, res ipsa loquitur applies, or there is a violation of the defendant medical provider of its own rules or procedures for treating patients.
Applying Trimel it certainly appears to be the case that the defendant hospital is being sued in its capacity as a deliverer of emergency medical services because of the actions or failures to act of its nursing staff. Cf. Sherman v. Bristol Hospital, Inc., 79 Conn. App. 78, 80, 81 (2003) (medical practice case, suit against hospital and nurses). As to the second Trimel factor, the alleged negligence claim arises out of the medical-professional relationship; the whole case rests on the claim of failure to deliver medical services or treatment and arises out of a specialized medical problem allegedly created by the hospital's earlier medical treatment of the deceased youngster. He was injected with a drug to treat a medical problem with his ear, he tragically died and an autopsy report, the plaintiff claims, indicates the cause of death was an allergic reaction to the drug with which he was injected pursuant to medical treatment. This is a medical malpractice case.
(2)
The law in our state as in others is that: "To prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care, (2) a deviation from the standard of care and (3) a causal connection between the deviation and the claimed injury." Gold v. Greenwich Hospital Assoc., 268 Conn. 248, 254-55 (2002); Amsden v. Fischer, 62 Conn. App. 332, 331 (2001); Haliburton v. General Hospital Society, 133 Conn. 61, 65 (1946).
The court will first discuss the standard of care issue and the alleged deviation from that standard in the context of whether these elements can be proven without recourse to expert testimony. Expert testimony is " ordinarily" required to prove negligence — the standard of care and deviation from that standard. Haliburton v. General Hospital Society, supra, 133 Conn. at page 65. There are exceptions to this rule CT Page 10881-ci which the plaintiff has referenced in his briefs. The common exceptions are summarized in 61 Am.Jur.2d, "Physicians, Surgeons," § 323, pp. 437-39, which also reflects Connecticut law.
The Am.Jur. article says,
Expert testimony is not necessary to establish a prima facie case of medical malpractice when the facts alleged are within the general knowledge and experience of lay persons and, if believed, establish the necessary elements of a medical malpractice claim.
However the exception to the necessity of medical testimony in a malpractice action encompasses only those few situations in which the claimed malpractice is sufficiently blatant or patent that lay persons, relying on common knowledge and experience, can legitimately recognize or infer negligence.
See also Tait's Handbook of Connecticut Evidence, § 7.5.4 page 518; cf. State v. Orsini, 155 Conn. 367, 372 (1967) (condition obvious, common in every day life — pregnancy amputation); Console v. Nickov, 156 Conn. 268, 274 (1968) (needle left in patient after child delivered); LaRoche v. United States, 730 F.2d 538, 541 (CA 8, 1984) (placing permanent fillings in teeth that dentist should have known were infected), Slinak v. Foster, 106 Conn. 366, 370 (1927), cites an Iowa case as an example where expert testimony was not necessary — an operation on adenoids, part of tongue removed, cf. the odd case of Nielsen v. Pioneer Valley Hospital, 830 P.2d ___, 270 (Utah, 1992) (no expert needed where plaintiff's teeth damaged during knee surgery). Also see Medical Malpractice, Louisell, Williams, Vol. 4 § 29.03, "Alternatives to Expert Testimony," Section (a). For a general discussion of issues being dealt with in this decision see 40 A.L.R.3d 515 article entitled, appropriately enough, "Necessity of Expert Evidence to Support Action Against Hospital For Injury to or Death of Patient."
(a)
The court will first discuss the exception to the requirement of expert testimony to prove a violation of the standard of care under the "gross negligence" or "common experience of layperson" rule.
It could be argued that the situation now before the court does not fall within what might be called the general "gross negligence" or "common knowledge of the jury" exception. Looking at the issue from the perspective of the medical problem presented by the child's symptomology after having been administered medications why would expert testimony not CT Page 10881-cj be needed to allow the jury to determine that failure to further treat and/or examine the child violated the standard of care because of the peculiar nature of the medication that had been administered and the possible reactions to it. This would hardly seem to be something within the common knowledge of lay persons.
The cases talk about "gross negligence" from another perspective. The North Carolina case of Weatherford v. Glassman, 500 S.E.2d 466 (1998), indicates that the state requires the same three elements be proven in a medical malpractice as our state. There in passing on a trial court's granting of a summary judgment motion, the court held the plaintiff's affidavit did not establish such gross negligence. The court reasoned that gross negligence involves "willful or wanton" conduct. "Conduct is willful if it involved a deliberate purpose not to discharge some duty necessary to the safety of the person or property of another," and conduct is wanton if it "is done for a wicked purpose, or when done needlessly manifesting a reckless indifference to the rights of others." Id. page 470. Using this standard it might be difficult to argue the conduct here meets the willful or wanton standard. Even given the disturbing allegations do they show a "wicked" purpose or "deliberate purpose" not to discharge a recognized duty?
There are cases however, that do suggest that under the umbrella of the common experience of lay persons and gross negligence exception there is still another situation where expert testimony is not required. This category of cases involve situations where the medical professional or treater abandons or fails to treat a patient who is obviously seriously ill or injured and where expert testimony is not necessary to reach the latter conclusion. This exception to the expert testimony requirement seems to make sense; as one ancient case said: "indeed, the sick leave their homes and enter hospitals because of the superior treatment promised them." University of Louisville v. Hammock, 106 S.W. 219, 220 (Ky. 1907).
Thus, in Hastings v. Baton Rouge Gen. Hospital, 498 So.2d 713, 715, 719-20 (La. 1986), expert testimony was not necessary to establish violation of the standard of care where a thoracic surgeon refused to go to the hospital to treat a person who was stabbed in the chest. The court concluded the doctor was "obviously negligent." Also see Thomas v. Corso, 288 A.2d 379 (Md., 1972), where the court held expert testimony was not necessary to establish a violation of the standard of care in a case in which emergency room personnel failed to attend to a man injured in an automobile accident who later died. The court quoted from and emphasized the language from an earlier edition of Louisell and Williams to the effect that: "It required no expert evidence, however, to show CT Page 10881-ck that failure altogether to attend a patient, when common sense indicates that without attention the consequences may be serious, is not reasonable care." Id. page 98; cf. Meiselman v. Crown Heights Hospital, 34 N.E.2d 367 ( 285 N.Y. 389, 395-96) (1941); see also Medical Malpractice, Louisell and Williams, Vol. 1, § 8.05(4), pp. 8-60, 8-61.
Given the serious symptoms displayed by this child which were communicated to the nursing staff on more than one occasion, it would certainly seem to be negligent and violative of the standard of care to turn the child and his mother away without any treatment let alone any attempt to examine the child further in light of the acute symptoms he was experiencing. Also see Clark v. Baton Rouge General Medical Center, 657 So.2d 741, 748 (La.Ct.App., 1995).
(b)
The court will now discuss another exception to the ordinary rule that expert testimony is necessary to establish the standard of care and its violation and whether this exception is applicable to this case. This involves an allegation that the hospital violated its own policies and rules about the treating of emergency room patients and if proved would violate the standard of care. First the court will address the factual predicates for the application of this exception. After this child was seen in the emergency room a form was filled out and the form was attached to the May 5, 2003 response to the defendant's summary judgment motion. It is entitled "Emergency Department Discharge Instructions," the actual instructions are "attached on separate sheet." The first printed page appears to be a form that would be used for all discharged emergency room patients. In the middle of the form appear the words "other instructions" and on ruled lines opposite this heading the medication and the amount and frequency of dosage to be taken by the child is listed. The following language then appears: "See your doctor next week. Return for any problems." At the bottom of the form the following printed words appear: "Discharge Instructions Attached on Separate Sheet." Beneath this phrase in bold type the following language appears as part of the printed form:
You have received emergency care only and may require further medical care as directed above. If you are unable to obtain care or if you require emergency medical care elsewhere or if you require urgent medical attention, you should return to this emergency department. If you feel your condition is not improving (and especially if it is worsening), get rechecked.
I certify that I have received and understood the instructions CT Page 10881-cl given to me.
There is then a signature line for "patient's signature and the signature of Heisli Hansen, the child's mother, appears.
On another sheet there is a document entitled "Aftercare Instructions." In the first paragraph the words Follow The Instructions Below appear in underlined capital letters. The name of the doctor who treated the child is listed. Two thirds of the way down the left column appear the underlined words " call your doctor, if your child has:
increased fever after using acetaminophen
any new or severe symptoms
(Acetaminophen is one of the medications the mother is to give the child.)
On the top of the right column the same underlined "call your doctor if" language appears; the doctor is to be called if there is "any sign of allergy" or "any new or severe symptoms." Two thirds of the way down the right column the same underlined call your doctor language appears and this is to be done if there is "any sign of allergy, an upset stomach, rash, or diarrhea, any sign of a new infection (fever, general aches, sore throat or other discomfort), no improvement, any new or severe symptoms."
The last paragraph admonishes the mother to follow the instructions carefully and give the medicines as directed (the amount and timing of dosage is given on this sheet. It then says: "Seek further medical treatment or examination as discussed. If Kyle has problems that we did not list, CALL YOUR DOCTOR RIGHT AWAY. If you can't reach your doctor, come back to the Emergency Department. If you have questions call us."
Query whether these instructions in effect set up a standard of care by which the hospital's alleged failure to give treatment can be found to be violative of that standard? If this is so, is expert testimony needed to define the standard and prove its violation? In the 40 ALR3d article at § 4(R), page 527 it comments on the case law by saying: "Standards may be set by a manufacturer of a machine used in treatment, or set by the defendant hospital itself. In the following cases involving the violation of such standards, it has been held that expert evidence was not necessary," see Lucy Webb Hayes Nat. Training School v. Perotti, 419 F.2d 704, 710 (D.C.C.A., 1969); see also Medical Malpractice, Louisell and Williams, Vol. 4, § 29.03(4). CT Page 10881-cm
What is the law on our state regarding the admission of hospital regulations or policies? In what way can they be said to define the standard of care and does their admission into evidence obviate the necessity of expert testimony? The just quoted ALR comment regarding hospital regulations is in some ways a subset of more general law operative in Connecticut.
Thus as noted in Tait's Handbook of Connecticut Evidence, § 4.21.6, p. 253, "If a defendant has established safety rules or issued orders for the safe conduct of the defendant's business, such rules or orders may be proved by the plaintiff as evidence of the appropriate standard of care as set by one in the business. Breach of such rules or orders are not "negligence in law" "but are merely evidence of negligence to be considered in the light of all the other relevant testimony in the case; they are 'some evidence' of negligence." Mascoela v. Wise, Smith Co., 120 Conn. 699, 701 (1935).
Moving from the general to the specific the court in Van Steinsburg v. Lawrence 2 Memorial Hospital, 194 Conn. 500, 506 (1984), said, "we point out that hospital rules, regulations, and policies do not themselves establish the standard of care . . . The failure to follow such rules and regulations is, however evidence of negligence." In Petriello v. Kalman, 215 Conn. 377, 386 (1990), the court said: "Although a violation of an employer's work rules can be viewed as evidence of negligence, such a violation does not establish the applicable duty of the hospital to its patients, since 'hospital rules, regulations and policies do not themselves establish the standard of care'" (the last quote being from Van Steinsburg, supra).
But what does all this mean in our state as to the requirement of expert testimony to prove violation of the standard of care in a medical malpractice case where a violation of hospital policy or as here of self-imposed directions to a patient as to the accessibility of treatment? The answer does not appear to be clear at least to the court. In Van Steinsburg there was expert testimony presented by the plaintiff to show violation of the standard but the court noted that the expert at least in part referred to hospital policy and their relevance to the standard of care which the plaintiff claim was violated. Id. 194 Conn. at page 507. But one of the cases cited by Van Steinsburg to support its observations, Foley v. Bishop Clarkson Memorial Hospital, 173 N.W.2d 881 (Neb. 1970), said, "In this case evidence regarding standards of care prevailing in Omaha or similar communities consists primarily of the rules and regulations of the defendant hospital. This does not establish community standards which may be either more liberal or stricter than the CT Page 10881-cn standards set up by the defendant. Although pertinent, such evidence standing alone is insufficient. In addition plaintiff's medical expert testified that the practice of obtaining histories was followed in all hospitals . . ." 173 N.W.2d at page 884 ( 185 Neb. 89, 93-94). On the other hand another case cited by Van Steinsburg as support for its position seems to indicate hospital policy violations is enough to find failure to meet the standard of care without expert testimony. In Williams v. St. Claire Med. Ctr., 657 N.W.2d 590 (Ky. 1983), the court said:
The legal duty in the case at bar, which appellant claims the hospital owed him and which he claims is breached, is not the duty to supervise or review the medical treatment given him, but the duty to enforce its policies which, if followed, would have precluded his receiving any anesthetic treatment in the first place solely from an unqualified, uncertified, inexperienced nurse with temporary, limited staff privileges.
In a recent Kentucky case, Rogers v. Kasdan, Ky., 612 S.W.2d 133, 136 (1981), our highest court ruled that there was more than sufficient evidence in that case to create a jury question on the issue of the hospital's liability for the death of Mrs. Rogers due to the failure of the hospital to maintain appropriate procedures to insure that "adopted rules of hospital procedure" were followed. That court held therein as follows:
Whether the hospital hired knowledgeable nurses, or had proper supervision for staff physicians, or accurate record keeping, and so forth, were all evidently questions for the jury to consider.
Id. p. 594.
In this case there is no indication that expert testimony was presented at least on the standard of care issue. Cf. Thropp v. Bache Halsey Stuart Shields, 650 F.2d 817, 820 (headings 5) (C.A. 6, 1981).
The question remains then in our state whether a violation of hospital policy which can certainly be shown in a particular case without resort to expert testimony can, without expert testimony, establish a violation of the standard of care. Or to perhaps put it another way, even if violation of policy is not conclusive on the issue of negligence or is not negligence per se as some of the cases say. See also Zeigert v. Chicago Community Hospital, 425 N.E.2d 450, 462 (Ill.App. 1981); Boland v. Garber, 257 N.W.2d 384, 386 (Minn. 1977) — what other evidence is needed or will suffice? Is it necessarily expert testimony? CT Page 10881-co
As in other areas of life maybe there is a middle position. In other words in some cases where a violation of a hospital policy or regulation is established, expert testimony would be still required, in other cases not. In this case the hospital established its policy about admissions for treatment to the emergency room by the detailed instructions given to the user of its facility. By definition emergency rooms are set up to treat people with medical emergencies, that is why people go to them. The instructions given the parent here said come back to the emergency room if there are new or severe symptoms. Violent vomiting, inability to stand, profuse sweating, face turning white sound like severe symptoms and additional or new symptoms from those experienced when the child first left the hospital; an expert would not be necessary to decide whether, given these manifestations of illness, the criteria the hospital itself set up for added emergency room care had been met. Furthermore, does it make sense in this context to be concerned about the problem envisaged in the previous quotation from the Foley v. Bishop Clarkson Memorial Hospital case, supra? Do we really have to worry about the fairness of imposing on a hospital a stricter standard of care than would otherwise be required because it chose to adopt a policy or give directives to patients about when they should return to the emergency room for further or continued treatment? Could an expert credibly say the proper standard is that a patient need not come back or more accurately need not be accepted for treatment even if he/she has "new and severe symptoms" — maybe a prospective user of the facility, when he/she is refused treatment, has to be actively dying while he knows or should know as an intelligent layperson that such is the case?
In any event considering the fact that the law in this area is not crystal clear (at least to the court) the court is reluctant to grant the motion on the grounds that the standard of care or its violation have not been established.
The real difficulty the court has with the plaintiff's case, however centers on the problem of causation which the court will now discuss.
(3)
In the context of a proven violation of the standard of care, the law on causation in a medical malpractice action in the context of a proven violation of the standard of care has been set forth in Gordon v. Glass, 66 Conn. App. 852, 855-56 (2001).
In every professional malpractice action, the plaintiff is required to prove that (1) the defendant was obligated to conform to a recognized CT Page 10881-cp standard of care, (2) the defendant deviated from the standard of care, (3) the plaintiff suffered some injury and (4) the defendant's act in departing from the standard of care caused the plaintiff's injury . . . No matter how negligent a party may have been, if his (her) (its) negligence bears no relation to the injury, it is not actionable.
(Emphasis by this court.)
Thus in Boland v. Garber, 257 N.W.2d 384 (Minn. 1977), cited by our court in Van Steinsburg, supra, 194 Conn. at page 505, the Boland court said that the trial court erred when it excluded evidence of a hospital rule requiring the presence of a physician-assistant during a medical procedure but went on to hold there was no reversible error: "The failure of the plaintiff to establish a causal relationship between the violation of the hospital rule and the injury which led to Boland's death is fatal to her claim that the trial court committed reversible error by excluding the rule from evidence." 257 N.W.2d at page 387; cf. Zeigert v. S. Chicago Community Hospital, supra, 425 N.E.2d at page 462, also cited in Van Steinsburg, id. p. 505.
The causation requirement as a separate element from the standard of care is of course operable when the claim is that there was a violation of the standard of care because of failure to treat, or delay in treatment or diagnosis. See Hiser v. Randolph, 617 P.2d 774, 778 (Aug. 1980) (suit against physician for failure to attend to emergency room patient which hospital by-laws and AMA Code of Ethics, incorporated therein, required). The court went on to note violation of this standard is separate from proof of causal relation between violation and death of patient ( Hiser, modified on unrelated question in Thompson v. Sun City Community Hosp., Inc., 688 P.2d 605 (1984). Also see Natasi v. UMW, 567 N.E.2d 1358, 1364 (Ill.App. 1991), where court found nursing staff deviated from standard of care in notifying doctor of patient's condition. Court went on to note that although an expert "did testify that delays in prompt diagnosis and treatment could cause poor ultimate results in plaintiff's suffering from plaintiff's condition, there was no medical testimony to substantiate that the acts or omissions of the nursing staff ultimately had any impact at all on the out come of plaintiff's treatment" (directed verdict in favor of hospital upheld).
The precise question before the court is whether this causation element requires expert testimony. As noted in Medical Malpractice, Louisell Williams, Vol. 1, pages 8-90, 8-91, § 8.07(4), "Typically causation must be established for the jury by expert testimony. As with the rules for proving the standard of care and its breach, the requirement for expert testimony is limited by the common knowledge CT Page 10881-cq exception for circumstances which are obvious to a lay person." Our Appellate courts have followed this position on proof of causation including the limitation on the requirement of expert testimony. See Gannon v. Kresge, Co., 114 Conn. 36, 37 (1931) (miscarriage); cf Shegog v. Zabrecky, 36 Conn. App. 737, 747 (1995); Sapiente v. Waltuch, 127 Conn. 224, 227 (1940); Orthopedic Clinic v. Hanson, 415 P.2d 991 (Okla. 1966).
Can causation be proven here without the testimony of an expert. The plaintiff has attached the autopsy report for the death of this child. The court will assume for the purposes of discussion that it can consider the uncertified document. See State v. Dawson, 214 Conn. 146, 147 (1990) (admission of autopsy report). The report says that the "final cause of death" was "hemolysis due to idiosyncratic reaction to Ceftriaxone)." Referring to a standard dictionary the court could ascertain "hemolysis" means the dissolution or destruction of red blood cells. After oral argument on May 12, both sides exchanged supplementary briefs. In a June 10 brief submitted by the plaintiff counsel attached the autopsy report and pages from the Internet which were perhaps but not clearly issued by the drug manufacturer of Rocephin. There were no corroborating materials or affidavits submitted to indicate the source of this material, how current it was, whether in fact it came from the manufacturer, whether users received the material along with supplies of the drug. The court has serious questions as to whether and in what way it can consider these Internet pages. They do indicate Ceftriaxone is Rocephin — perhaps the generic name for it. The material says "pseudomembraneous colitis has been reported with nearly all antibacterial agents, including Ceftriaxone and may range in severity from mild to life threatening. Therefore, it is important to consider this diagnosis in patients who present with diarrhea subsequent to administration of antibacterial agents." After diagnosis of this condition is made "appropriate therapeutic measures should be initiated." Mild cases usually respond to discontinuation of the drug. In more severe cases management with fluids or electrolyte protein supplementation and treatment with an antibacterial drug should be considered.
But how is a layperson to equate "hemolysis" in the autopsy report with "pseudomembranous colitis" in the Internet materials? Perhaps more to the point no layperson could determine, without the aid of expert testimony, that if the child had been accepted back in the emergency room earlier and treated that the tragedy which resulted would not have occurred. How could a layperson in other words determine if the hemolysis was reversible upon immediate as opposed to delayed treatment. The autopsy report itself describes the reaction to the drug as "idiosyncratic" which signifies a peculiar or abnormal reaction. See American Heritage CT Page 10881-cr Dictionary. Could this idiosyncratic reaction be the cause of death standing alone without any relation to the delay in treatment or refusal to give treatment? How can a layperson determine that?
The need for expert testimony is further underlined if the revised complaint is examined closely and even if the Internet material is properly open to the court's consideration. The only life-threatening symptom associated with the administration of the drug in this material is the development of diarrhea. But the mother informed the hospital of this condition at 9:35 P.M. and had not mentioned this as a symptom in her earlier attempts to return for emergency room treatment. If the diarrhea condition developed soon before the 9:35 P.M. call and hospital treatment is noted to have begun at 11:15 or 11:20 P.M., how could a lay person and jury, without expert testimony determine the significance of this delay in treatment for the resulting death, or that the delay, given the development of this symptom caused the death?
In the interest of completeness the court will discuss other case law where it has been held expert testimony is not necessary to prove causation. Thus, for example, can a simple sequential analysis be made. This is not a relatively simple case where an injury follows a certain event, no other causes for the injury are suggested and a layperson can thus determine causation by the natural sequence of events; this was the case in two non-medical practice cases. In Gannon v. Kresge Co., 114 Conn. 36, 38 (1931) (miscarriage following hysteria caused when plaintiff bit into sandwich containing glass particles, absence of previous miscarriages, had ten children), and in Sapiente v. Waltuch, 127 Conn. 224, 227 (1940), where a woman sued a grocery store who sold her a box of macaroni, the court referred to Gannon and said in a case perhaps not having enormous precedential value: "The sequence of events, according to the plaintiff, was that she ate the macaroni, became violently ill and then saw the bugs (upon inspecting the macaroni). Her doctor testified that her illness resulted from the effect of the sight of the bugs after she had eaten the macaroni rather than from eating them." The court held that expert testimony was not essential; the jury was entitled to believe the plaintiff not her doctor and could find the plaintiff's illness resulted from eating the macaroni.
In analyzing the causation issue from the point of view of a sequential analysis, the type of negligence claimed is determinative — here the claim as to causation has to be the death was caused by refusal or delay in treatment, there is no claim that something was wrong with the drug administered or that the drug should not have been administered under any circumstance. The child was in fact treated later in the evening after being turned away from the emergency room. Given that the CT Page 10881-cs question whether treatment administered earlier would have produced a different outcome or the medical effect of such delay and its length appears to be a question that cannot be resolved by a layperson using a simple sequential analysis.
Neither would resort to the concept of res ipsa loquitur be of much assistance to the plaintiff on the causation problem. In Medical Malpractice, Louiselle and Williams, Vol. 1, § 8:08 pp. 8-99, 8-100, the following is said:
Res ipsa loquitur literally, "the thing speaks for itself" is a special doctrine of causation. The doctrine provides a mechanism under which the cause of an injury can be presumed to be the defendant's negligence in circumstances under which specific proof of causation would be practically impossible.
The prerequisites for invocation of res ipsa are:
(1) the accident or occurrence producing the injury is of a kind which ordinarily does not happen in the absence of someone's negligence;
(2) the injuries are caused by an agency or instrumentality within the exclusive control of the defendant; and
(3) the injury-causing accident or occurrence is not due to any voluntary action or contribution on the part of the plaintiff.
Some courts add a fourth requirement that the explanation of the event must be more accessible to the defendant than to the plaintiff. Cf. Giles v. New Haven, 228 Conn. 441, 446 (1994).
Proof of causation was not practically impossible here; there is no reason advanced why an expert could not have testified as to the causation issues in this case. And even aside from this it cannot be said for the reasons discussed that without expert testimony the "injury is of a kind which ordinarily does not happen in the absence of someone's negligence."
The court also discovered another concept, developed in Missouri, in an attempt to decide whether expert testimony could be waived on the question of causation. It is called the "sudden onset doctrine" and appears to be applied in situations of an actual physical injury due to falls, etc. but there is no analytical reason why it cannot apply to medical malpractice cases and the concept is in some ways similar to the reasoning in Gannon and Sapiente. In Williams v. Jacobs, 972 S.W.2d 334, CT Page 10881-ct 340 (Mo. 1998), the court said: "It is not essential to have medical testimony however, as a causal connection between an accident and injury can be inferred in cases where there is a visible injury, or a sudden onset of an injury, or an injury that as a matter of common knowledge follows the act under the sudden onset doctrine a causal connection may be inferred if the injury develops coincidentally with the negligent act, such as broke bones . . . immediate continuing back pain . . . or an obvious wound . . . The testimony of a lay witness is sufficient to establish the nature, cause and extent of an injury 'when the facts fall within the realm of lay understanding.' . . . However, when the injury is a sophisticated injury, which requires surgical intervention or other highly scientific technique for diagnosis . . . the proof of causation is not within the realm of lay understanding." Even if this doctrine were stretched and extended to apply to the facts of this case the suddenness of the development of any symptoms which can be inferred to have developed here say nothing from a lay perspective about whether quicker treatment would have even possibly obviated the terrible result that occurred.
The court is constrained to grant the defendant's motion for summary judgment for the foregoing reasons. The ultimate problem with the case is not the rigid application of arcane doctrine but the simple failure to disclose an expert witness.
By the Court,
Thomas Corradino Judge of the Superior Court
CT Page 10881-cu