Opinion
CV116018306S
03-07-2016
Gregory Leigh v. Daniel Schwartz, M.D. et al
UNPUBLISHED OPINION
MEMORANDUM OF DECISION RE MOTION FOR JUDGMENT NOTWITHSTANDING THE VERDICT MOTION TO SET ASIDE VERDICT/MOTION FOR NEW TRIAL (#237)
Robin L. Wilson, J.
PROCEDURAL AND FACTUAL BACKGROUND
The plaintiff, Gregory Leigh, commenced this medical malpractice action against the defendant, Daniel Schwartz, M.D., CBS Surgical Group, P.C., MidState Medical Center and MidState Medical Group, P.C. by service of writ, summons and complaint. The plaintiff alleged that on December 10, 2008, the defendant, a general surgeon, negligently caused injury to the spinal accessory nerve during surgical excision of a posterior cervical lymph node. As a result of the injury, the plaintiff claimed various problems with his left shoulder and the inability to raise his left arm above his head. At the conclusion of the plaintiff's case in chief, the defendant moved for a directed verdict which this court denied. On July 15, 2015, the jury returned a plaintiff's verdict and awarded non-economic damages in the amount of $4,250,000.
On June 15, 2015, in response to defendants' responses to plaintiff's Request to Admit, the plaintiff amended his complaint to withdraw the counts against MidState Medical Center and CBS Surgical Group, P.C.
On August 11, 2015, the defendant filed a motion for judgment notwithstanding the verdict or in the alternative a motion to set aside verdict/motion for new trial and a motion for remittitur. On October 20, 2015, the plaintiff filed objections thereto and on November 30, 2015, the court heard oral argument on the motions at short calendar. Additional facts will be presented as necessary. The court will issue a separate memorandum of decision on the defendant's motion for remittitur.
DISCUSSION
" After the acceptance of a verdict and within the time stated in Section 16-35 for filing a motion to set a verdict aside, a party who has moved for a directed verdict may move to have the verdict and any judgment rendered thereon set aside and have judgment rendered in accordance with his or her motion for a directed verdict . . . If a verdict was returned, the judicial authority may allow the judgment to stand or may set the verdict aside and either order a new trial or direct the entry of judgment as if the requested verdict had been directed or may order a new trial." Practice Book § 16-37.
" A directed verdict is justified if, on the evidence the jury reasonably and legally could not have reached any other conclusion . . . In reviewing the trial court's decision to direct a verdict in favor of a defendant we must consider the evidence in the light most favorable to the plaintiff.. . . While it is the jury's right to draw logical deductions and make reasonable inferences from the facts proven . . . it may not resort to mere conjecture and speculation . . . The standard of review governing a motion for judgment notwithstanding the verdict is the same because a motion for judgment notwithstanding the verdict is not a new motion, but the renewal of a motion for a directed verdict." (Citations omitted; internal quotation marks omitted.) Gagne v. Vaccaro, 255 Conn. 390, 400, 766 A.2d 416, 423 (2001).
I
The court will first address the defendants' challenge to the plaintiff's presentation of the medical malpractice claim. In support of the claim, the plaintiff presented expert testimony in which the witness inferred that the occurrence of the nerve injury evidenced a deviation from the standard of care. The defendants argue that this evidence, and in turn the plaintiff's theory of the case, sound in res ipsa loquitur, not medical malpractice. The defendants further argue that the doctrine is not applicable to this type of medical malpractice action. Therefore, because res ipsa loquitur was not pleaded, the court's misapprehension of the plaintiff's theory resulted in harmful error to the defendants. In opposition, the plaintiff argues that this is not a res ipsa loquitur case. Rather, it is the type of medical malpractice claim permitted by the Supreme Court in Wilcox v. Schwartz, 303 Conn. 630, 37 A.3d 133, (2012). As such, the plaintiff submits that the claim was properly raised and put to the jury.
" The requirement that [a] claim be raised distinctly means that it must be so stated as to bring to the attention of the court the precise matter on which its decision is being asked . . . The purpose of our preservation requirements is to ensure fair notice of a party's claims to both the trial court and opposing parties . . . These requirements are not simply formalities. They serve to alert the trial court to potential error while there is still time for the court to act . . . Assigning error to a court's evidentiary rulings on the basis of objections never raised at trial unfairly subjects the court and the opposing party to trial by ambush.
" To properly raise a theory of liability in the trial court, a party must articulate it in advance, as an early warning, so that an opposing party may frame its presentation of evidence accordingly . . . The requirement that claims be raised timely and distinctly also recognizes that counsel should not have the opportunity to surprise an opponent by interjecting a claim when opposing counsel is no longer in a position to present evidence against such a claim . . . Parties will naturally base their discovery strategy and litigation decisions on the claims raised by opposing parties. It would be patently unfair for a plaintiff to plead his claims under one theory of liability, only to shift to a new, alternative theory on appeal, well after the close of discovery, thus preventing or hindering the defendant from gathering facts relating to the plaintiff's new claims." (Citations omitted; internal quotation marks omitted.) White v. Mazda Motor of America, Inc., 313 Conn. 610, 620-21, 99 A.3d 1079 (2014).
" Res ipsa loquitur certainly is not an independent cause of action but only a doctrine of evidence and thus not separate from a negligence claim. But certainly a claim of negligence can be based on a statement of facts and circumstances giving rise to the application of res ipsa loquitur. In fact if a plaintiff is relying on a negligence claim framed in this way, because we are a fact pleading state, the plaintiff must set forth factual allegations raising this doctrine." (Emphasis omitted; internal quotation marks omitted.) White v. Mazda Motor of America, Inc., supra, 313 Conn. 627.
" 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 . . . When both of these prerequisites are satisfied, a fact finder properly may conclude that it is more likely than not that the injury in question was caused by the defendant's negligence." (Citation omitted; internal quotation marks omitted.) Godwin v. Danbury Eye Physicians & Surgeons, P.C., 254 Conn. 131, 140, 757 A.2d 516 (2000).
The defendants' arguments reflect the tension between the doctrine of res ipsa loquitur and a medical malpractice theory of liability. " [T]he doctrine of res ipsa loquitur is a rule of common sense and not a rule of law which dispenses with proof of negligence. It is a convenient formula for saying that a plaintiff may, in some cases, sustain the burden of proving that the defendant was more probably negligent than not, by showing how the accident occurred, without offering any evidence to show why it occurred . . . The result is simply that such proof, without proof of further facts tending to show negligence, satisfies the plaintiff's duty of producing evidence sufficient to permit the trier, whether court or jury, to draw an inference of negligence . . . The doctrine permits, but does not compel, such an inference . . . The doctrine has no evidential force, does not shift the burden of proof and does not give rise to a presumption . . . It is but a specific application of the general principle that negligence can be proved by circumstantial evidence." (Citations omitted; internal quotation marks omitted.) Barretta v. Otis Elevator Co., 242 Conn. 169, 173, 698 A.2d 810 (1997).
In contrast, medical malpractice is not an evidentiary principle, but an independent cause of action. " The classification of a negligence claim as either medical malpractice or ordinary negligence requires a court to review closely the circumstances under which the alleged negligence occurred. [P]rofessional negligence or malpractice . . . [is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services . . . Furthermore, malpractice presupposes some improper conduct in the treatment or operative skill [or] . . . the failure to exercise requisite medical skill . . . From those definitions, we conclude that the relevant considerations in determining whether a claim sounds in medical malpractice are 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-patient relationship, and (3) the alleged negligence is substantially related to medical diagnosis or treatment and involved the exercise of medical judgment." (Emphasis omitted; internal quotation marks omitted.) Boone v. William W. Backus Hospital, 272 Conn 551, 562-63, 864 A.2d 1 (2005).
" [T]he doctrine of res ipsa loquitur, which permits the jury to infer negligence although no direct evidence of negligence has been adduced, ordinarily does not apply to medical malpractice claims." Wilcox v. Schwartz, supra, 303 Conn. 649 n.11. " 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.) Boone v. William W. Backus Hospital, supra, 272 Conn 567.
Otherwise, " 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." Boone v. William W. Backus Hospital, supra, 272 Conn. 567. " Expert medical opinion evidence is usually required to show the cause of an injury or disease because the medical effect on the human system of the infliction of injuries is generally not within the sphere of the common knowledge of the lay person . . . Where expert medical opinion evidence is required in a medical malpractice case, [t]he causal relation between an injury and its later physical effects may be established by the direct opinion of a physician, by his deduction by the process of eliminating causes other than the traumatic agency, or by his opinion based upon a hypothetical question." (Citations omitted; internal quotation marks omitted.) Gordon v. Glass, 66 Conn.App. 852, 856, 785 A.2d 1220 (2001), cert. denied, 259 Conn. 909, 789 A.2d 994 (2002).
There is no question that this medical malpractice claim required expert testimony to prove that the injury was caused by a deviation from the standard of care. Indeed, there was substantial testimony as to the nature of the procedure, the risk of injury, and what should have occurred. The issue presented here therefore, is whether a medical malpractice claim can be supported by expert testimony when the expert's determination of professional malpractice is based on an inference. Particularly where, as here, the inference bears the hallmarks of res ipsa loquitur--that occurrence of the injury in this type of procedure is enough, by itself, to infer negligence on the part of Dr. Schwartz.
A
In the absence of other Connecticut law on point, the defendants have identified a split of authority on whether an inference relied upon by an expert must be pleaded under a theory of res ipsa loquitur. The division has been summarized by the Federal Second Circuit Court of Appeals in Connors v. University Associates in Obstetrics and Gynecology, Inc., 4 F.3d 123, 127-29 (2d Cir. 1993), which explained that " there is a clear split between states in their treatment of res ipsa loquitur charges in medical malpractice cases. Some states allow the plaintiff to come forward with expert testimony to support a res ipsa theory, while others preclude the use of a res ipsa instruction in non-obvious cases and permit its use only in cases where the plaintiff's injury is one that the average citizen can perceive to be a function of negligence based on everyday experience." Id., 127.
On the other side of the split, the Second Circuit identified the following states as adopting the view that expert testimony necessarily precludes the application of res ipsa loquitur: " Florida, see Anderson v. Gordon, 334 So.2d 107, 109 (Fla.Dist.Ct.App. 1976); Idaho, see Le Pelley v. Grefenson, 101 Idaho 422, 426, 614 P.2d 962, 966 (1980); Iowa, see Forsmark v. State, 349 N.W.2d 763, 769 (Iowa 1984); Maryland, see Orkin v. Holy Cross Hosp. of Silver Spring, Inc., 318 Md. 429, 569 A.2d 207, 209 (1990); Meda v. Brown, 318 Md. 418, 569 A.2d 202, 205 (1990); Massachusetts, see Semerjian v. Stetson, 284 Mass. 510, 187 N.E. 829, 830-31 (1933); Minnesota, see Todd v. Eitel Hospital, 306 Minn. 254, 237 N.W.2d 357, 361-62 (1975); North Dakota, see Wasem v. Laskowski, 274 N.W.2d 219, 225 (N.D. 1979); Tennessee, see Perkins v. Park View Hosp., 61 Tenn.App. 458, 456 S.W.2d 276, 284-85 (1970); . . . and Texas, see Haddock v. Arnspiger, 793 S.W.2d 948, 951 (Tex. 1990) . . ." (Citations omitted.) Connors v. University Associates in Obstetrics and Gynecology, Inc., supra, 4 F.3d 127. The Second Circuit identified the following states as adopting the view that res ipsa loquitur must be presented in conjunction with expert testimony that relies upon inference: " California, see Kerr v. Bock, 5 Cal.3d 321, 95 Cal.Rptr. 788, 790, 486 P.2d 684, 686 (1971); . District of Columbia, see Harris v. Cafritz Memorial Hosp., 364 A.2d 135, 137 (App.D.C. 1976), cert. denied, 430 U.S. 968, 97 S.Ct. 1650, 52 L.Ed.2d 359 (1977); Hawaii, see Medina v. Figuered, 3 Haw.App. 186, 647 P.2d 292, 294 (1982); Illinois, see Walker v. Rumer, 72 Ill.2d 495, 21 Ill.Dec. 362, 364, 381 N.E.2d 689, 691 (1978); Kansas, see Savina v. Sterling Drug, Inc., 247 Kan. 105, 795 P.2d 915, 935-36 (1990); Louisiana, see Cangelosi v. Our Lady of Lake Regional Medical Center, 564 So.2d 654, 664-65 (La. 1989); Michigan, see Jones v. Porretta, 428 Mich. 132, 405 N.W.2d 863, 873 (1987); New Jersey, see Buckelew v. Grossbard, 87 N.J. 512, 435 A.2d 1150, 1157-58 (1981); Ohio, see Morgan v. Children's Hosp., 18 Ohio St.3d 185, 18 Ohio B. 253, 480 N.E.2d 464, 467 (1985); Pennsylvania, see Sedlitsky v. Pareso, 400 Pa.Super. 1, 582 A.2d 1314, 1316-17 (1990); Rhode Island, see Wilkinson v. Vesey, 110 R.I. 606, 295 A.2d 676, 691 (1972); South Dakota, see Van Zee v. Sioux Valley Hosp., 315 N.W.2d 489, 492 (S.D. 1982); Wisconsin, see Hoven v. Kelble, 79 Wis.2d 444, 256 N.W.2d 379, 383 (1977); and Washington, see Pederson v. Dumouchel, 72 Wash.2d 73, 431 P.2d 973, 979 (1967)." (Citation omitted.) Connors v. University Associates in Obstetrics and Gynecology, Inc., supra, 4 F.3d 128.
The Connors court, applying Vermont law, held that Vermont fell into the former category. In that case, the plaintiff's expert testified that the plaintiff would not have been injured by the use of a medical device had the standard of care been followed. The Second Circuit held that, in order to prove negligence, the medical malpractice claim required both expert testimony and a charge on res ipsa loquitur so as to permit lay jurors to draw the inference that the occurrence of that injury was sufficient to evidence negligent on the part of the physician. Id., 129. The court's conclusion was based on the application of the Restatement (Second) of Torts, which " explicitly encourages the use of expert testimony in medical malpractice cases involving res ipsa loquitur: 'In the usual case the basis of past experience from which this conclusion may be drawn is common to the community, and is a matter of general knowledge, which the court recognizes on much the same basis as when it takes judicial notice of facts which everyone knows. It may, however, be supplied by the evidence of the parties; and expert testimony that such an event usually does not occur without negligence may afford a sufficient basis for the inference. Such testimony may be essential to the plaintiff's case where, as for example in some actions for medical malpractice, there is no fund of common knowledge which may permit laymen reasonably to draw the conclusion.' [2 Restatement (Second), Torts] § 328D, comment d." Connors v. University Associates in Obstetrics and Gynecology, Inc., supra, 4 F.3d 128.
In contrast, the latter line of cases, in which res ipsa loquitur is precluded and a charge is not required to support such an inference, is exemplified by the Maryland case of Meda v. Brown, 318 Md. 418, 569 A.2d 202 (Md. 1990). That case concerned a dilemma that substantially resembles the one currently before the court, in which " [t]wo medical experts, testifying for the plaintiff, relied in part upon an inference of negligence in reaching the conclusion that substandard care on the part of the defendant anesthesiologist caused the plaintiff to suffer a radial nerve injury. The jury found in favor of the plaintiff, but the trial judge granted the defendant's motion for judgment notwithstanding the verdict." Id., 202-03.
The Court of Appeals restored the jury verdict, " not on the basis of the applicability of res ipsa loquitur, but because the testimony was sufficient to support the inferential conclusion of negligence drawn by the plaintiff's experts." (Emphasis omitted; footnote omitted.) Meda v. Brown, supra, 569 A.2d 203. In so doing, the court acknowledged that when the criteria of res ipsa loquitur are satisfied, an inference of negligence may be drawn. Id., 204-05. In the underlying matter, however, the patient's " case did not go to the jury on a theory of res ipsa loquitur. No instruction on res ipsa loquitur or the required criteria for the application of that concept was given. The plaintiff offered proof of negligence on the part of [the defendant] Dr. Meda through the testimony of Dr. Gary Belaga, a neurologist, and Dr. John Rybock, a neurosurgeon." (Emphasis omitted.) Id., 205.
The Maryland Court of Appeals was careful to note the operative distinction between expert testimony and res ipsa loquitur: " The closest that this case comes to reliance upon res ipsa loquitur is in the inferential reasoning process used by the plaintiff's experts in arriving at their conclusions that Dr. Meda was negligent. As we shall see, neither Dr. Belaga nor Dr. Rybock could testify as to the precise act of negligence that caused injury to Mrs. Brown's ulnar nerve. Each doctor, based upon his knowledge of the facts and upon his expertise, concluded that Mrs. Brown's injury was one that ordinarily would not have occurred in the absence of negligence on the part of the anesthesiologist. This inferential reasoning has a familiar ring to it. It is a major part of the concept of res ipsa loquitur. It is not, however, res ipsa loquitur. Res ipsa loquitur, as we now utilize that concept in the law of negligence, means that in an appropriate case the jury will be permitted to infer negligence on the part of a defendant from a showing of facts surrounding the happening of the injury, unaided by expert testimony, even though those facts do not show the mechanism of the injury or the precise manner in which the defendant was negligent. The jurors in this case were not told that they could make such a finding. Accordingly, this case does not present the question of whether the plaintiff might have relied on res ipsa loquitur by simply showing the facts of the occurrence unaccompanied by expert testimony." (Emphasis omitted.) Meda v. Brown, supra, 569 A.2d 205.
There is no authority in Connecticut that has followed either the inclusive position, as adopted in Connors v. University Associates in Obstetrics and Gynecology, Inc., or the preclusive position, as adopted in Meda v. Brown . In order to decide the merits of the defendants' motion, the court must determine, with reference to opinions in other similar contexts, which position is appropriate.
Generally, our Supreme Court has indicated a preference to separate medical malpractice claims requiring expert testimony from those that rely upon the application of res ipsa loquitur, as demonstrated in Boone v. William W. Backus Hospital, supra, 272 Conn. 567, which specifically provided that the res ipsa loquitur inference was available for medical malpractice claims of gross negligence, but did not permit the instruction for medical malpractice claims that required expert testimony.
The division between res ipsa loquitur and medical malpractice was further expounded upon in Wilcox v. Schwartz, supra, 303 Conn. 634-35. In that case, the issue before the court was whether an opinion letter stating that a physician negligently failed to prevent a particular injury to the patient while performing a surgical procedure was sufficient to satisfy the requirements of General Statutes § 52-190a. In the patient's complaint, it was claimed that the operating physician " breached the applicable standard of care in that he . . . (1) failed to [ensure] the adequate and accurate identification of [the patient's] internal anatomy prior to proceeding with the laparoscopic cholecystectomy, (2) failed to prevent injury to [the patient's] biliary structures during the laparoscopic cholecystectomy and (3) failed to accurately document the surgical procedure . . ." (Internal quotation marks omitted.) Id., 634. The opinion letter attached in support of the claim provided, in relevant part, that " I have reviewed the relevant records and information that were provided to me with regard to . . . [the patient]. I can conclude that, to a reasonable degree of medical probability, there are deviations from the applicable standards of care pertaining to the care and treatment of . . . [the patient] provided by [the physician] and that the care and treatment provided by [him] was not provided in a manner consistent with the standards of care that existed among general surgeons at the time of the alleged incident. Specifically [the physician] failed to prevent injury to . . . [the patient's] biliary structures during laparoscopic [gallbladder] surgery and failed to accurately document the surgical procedure . . . As a result of [the physician's] negligent treatment . . . [the patient] sustained severe, painful and permanent injuries." (Internal quotation marks omitted.) Id., 634-35.
General Statutes § 52-190a(a) provides, in relevant part: " No civil action or apportionment complaint shall be filed to recover damages resulting from personal injury or wrongful death . . . whether in tort or in contract, in which it is alleged that such injury or death resulted from the negligence of a health care provider, unless the attorney or party filing the action or apportionment complaint has made a reasonable inquiry as permitted by the circumstances to determine that there are grounds for a good faith belief that there has been negligence in the care or treatment of the claimant . . . To show the existence of such good faith, the claimant . . . shall obtain a written and signed opinion of a similar health care provider . . . which similar health care provider shall be selected pursuant to the provisions of said section, that there appears to be evidence of medical negligence and includes a detailed basis for the formation of such opinion . . ."
On appeal to the Supreme Court, the defendants challenged " the determination of the Appellate Court that the plaintiffs' written opinion contains sufficient detail to pass muster under § 52-190a(a) on the ground that the opinion fails to identify the particular negligent act or acts that caused the damage to [the patient's] biliary structures. The defendants also assert that the written opinion is legally inadequate because it asserts only that [the physician] was negligent in failing to prevent injury to [the patient's] biliary structures but does not expressly identify the standard of care." (Internal quotation marks omitted.) Wilcox v. Schwartz, supra, 303 Conn. 637-38.
The Supreme Court rejected the defendants' argument and affirmed the judgment of the Appellate Court. The court was persuaded that " the legislature did not intend to bar a potentially meritorious claim merely because a similar health care provider, although able to determine that there appears to be evidence of a breach of the standard of care, is unable to identify the specific negligent act or omission involved." Wilcox v. Schwartz, supra, 303 Conn. 645. The court further explained that " an opinion by a similar health care provider that there appears to be evidence of medical negligence properly may be based on evidence of an injury or outcome that the medical professional believes is highly unlikely to have occurred in the absence of negligence. Such a conclusion may be reasonable when, for example, an injury occurs to an organ that is rarely, if ever, injured during a particular procedure, and the plaintiff's medical records do not reveal an explanation for the injury that does not involve negligence. In such circumstances, the plaintiff's malpractice claim is predicated not on the doctrine of res ipsa loquitur but, rather, on the considered opinion of a medical professional that the injury would not have occurred but for the defendant's negligence." Id., 648.
The court based its reasoning, in part, on the following hypothetical: " Indeed, in certain cases, it may be impossible to determine the precise cause of the injury even after extensive discovery. In those cases, the plaintiff's expert nevertheless may be able to opine, to a reasonable degree of medical certainty, that the injury would not have occurred in the absence of medical negligence. As a general matter, there is no reason why that opinion evidence would not be sufficient to survive a motion for a directed verdict. If such expert testimony is sufficient to permit the case to go to the jury at the conclusion of the plaintiff's evidence, it would be unreasonable--indeed, it would be bizarre--to conclude that the same expert opinion nevertheless is insufficient to satisfy the 'detailed basis' requirement of § 52-190a(a) at the very inception of the litigation." Wilcox v. Schwartz, supra, 303 Conn. 650-51.
Based on the commonalities between existing Connecticut case law and the preclusive position as explained by Meda v. Brown, res ipsa loquitur should not be permitted in support of a medical malpractice claim that does not involve gross negligence. As will be further discussed, however, that is not fatal to the plaintiff's claim. Rather, consistent with the reasoning of the Maryland Court of Appeals in Meda v. Brown and our own Supreme Court in Wilcox v. Schwartz, an expert may infer that a physician deviated from the standard of care based solely on the occurrence of the injury.
B
The assumption underlying the general prohibition against res ipsa loquitur in a medical malpractice claim is that a jury, in drawing an inference of negligence, would necessarily be relying on speculation and conjecture because the complicated nature of the claim is beyond the lay jury's understanding. The mere fact that an expert's opinion is premised upon an inference, however, does not mean that the plaintiff's medical malpractice theory is actually one of res ipsa loquitur. " An opinion, by definition, consists of [e]vidence of what the witness thinks, believes, or infers in regard to facts in dispute . . . An opinion is . . . an interpretation of facts . . . To allow . . . an expert witness to express his opinion . . . is not error [where the] opinion is premised on subordinate facts and is not based on mere conjecture or surmise." (Citations omitted; internal quotation marks omitted.) Hayes v. Decker, 66 Conn.App. 293, 301, 784 A.2d 417 (2001), aff'd, 263 Conn. 677, 822 A.2d 228 (2003). " [A] witness may offer his opinion or impression of conditions and circumstances when these are so numerous or complicated that they could not otherwise reasonably be described to the jury." Robinson v. Faulkner, 163 Conn. 365, 372, 306 A.2d 857 (1972). Thus, the pitfalls of permitting a lay jury to draw an inference in support of a claim of medical malpractice, as reflected in the doctrine of res ipsa loquitur, are resolved when the inference is drawn by an expert in arriving at an opinion because the expert does not rely on conjecture and speculation, but rather on established expertise.
The nature of the expert testimony offered in support of the claim, and its relationship to res ipsa loquitur, was central to the holding of the Maryland Court of Appeals in Meda v. Brown : " It is apparent that each doctor relied in part on circumstantial evidence in reaching his opinion that Dr. Meda was negligent. The defendant argues that this is impermissible--that because the experts who testified for the plaintiff could not identify with particularity the specific act of negligence and precise mechanism of injury, their testimony is mere speculation or conjecture. We do not agree . . . We have long held that [n]egligence, like any other fact, can be established by the proof of circumstances from which its existence may be inferred.
" It would appear that the defendant may have confused the question of whether an inference may be drawn by an expert with that of whether an inference may be drawn by a layman. If this plaintiff had offered no expert testimony, but had simply shown the onset of an ulnar nerve injury to her arm following a breast biopsy, the jury would not have been permitted to infer negligence from the facts alone. Although we have recognized that in the occasional 'obvious injury' case the common knowledge of jurors may be sufficient to support an inference or finding of negligence on the part of a health care provider, we have made it clear that in the ordinary medical malpractice case, because of the complexity of the subject matter, expert testimony is required to establish negligence and causation . . .
" In the case before us, however, the jurors were not asked to draw an inference unaided by any expert testimony. The plaintiff's experts, armed with their fund of knowledge, drew certain inferences from the circumstances. Having examined the testimony of the experts, we conclude that the trial judge did not err in permitting that testimony and allowing the doctors to base their opinions on a combination of direct and circumstantial evidence. The doctors recited in detail the physical facts they considered, and the medical facts they added to the equation to reach the conclusion they did. The facts had support in the record, and the reasoning employed was based upon logic rather than speculation or conjecture.
" The testimony of the plaintiff's experts adequately established the duty owed by the defendant to the plaintiff, a breach of that duty, causation, and damage. The jury's verdict should have been permitted to stand." (Citations omitted; internal quotation marks omitted.) Meda v. Brown, supra, 569 A.2d 206-07.
Returning to the matter at hand, the hypothetical posed by the Wilcox court, concerning the sufficiency of expert opinions offered at trial, is now before this court. The strength of the Supreme Court's reasoning applies with equal force here. The plaintiff's claims and the opinion letter attached in support thereof substantially resemble those at issue in Wilcox, in that they allege that the injury caused to the plaintiff is evidence of a breach of the standard of care. The evidence offered at trial, through expert testimony, conforms to the plaintiff's theory of malpractice. Moreover, it is typical of that type of expert testimony admissible in support of a similar medical malpractice theory. See, e.g., Tornaquindici v. Keggi, 94 Conn.App. 828, 839-41, 894 A.2d 1019 (2006) (factfinder permitted to rely on expert testimony that did not offer a precise explanation of what likely caused patient's injury, but nonetheless indicated that physician deviated from the standard of care).
The plaintiff's claim of medical malpractice is supported by the considered opinion of a medical professional. The defendants' attempt to seize on an inference underlying an expert's opinion and then to use the form of that inference to make a collateral attack on an otherwise properly presented medical malpractice claim subverts the very purpose of requiring expert testimony in support of such claims. Based on the foregoing, this court concludes that, an expert opinion, though based on an inference, does not transmute an otherwise permissible medical malpractice theory into an impermissible application of res ipsa loquitur.Thus, the defendants' arguments in support of setting aside the verdict on this ground are unpersuasive.
For those reasons, the defendants' reliance on White v. Mazda Motor of America, Inc., supra, 313 Conn. 620-21, is misplaced. Moreover, the factors that led to the White court's decision are not present here. Unlike in White, the plaintiff in the instant matter offered expert testimony to support the medical malpractice claim, so there is no need to rely on an alternative theory of liability. The defendants have been on notice of the plaintiff's medical malpractice theory, that the injury, itself, evidences malpractice, since the outset of litigation, and had ample opportunity to conduct the defense of Schwartz accordingly. Therefore, the defendants have not been prejudiced or unfairly surprised by the plaintiff's presentation of evidence in support of the medical malpractice claim.
II
The defendants' other objections concern the court's rulings with respect to the risk of injury in the defendant's prior performance of posterior cervical triangle lymph node biopsies, as well as with respect to allowing testimony that the subject lymph node was not cancerous and did not require surgery. " [A]n evidentiary ruling will result in a new trial only if the ruling was both wrong and harmful." (Emphasis in original; internal quotation marks omitted.) Duncan v. Mill Management Co. of Greenwich, Inc., 308 Conn. 1, 20, 60 A.3d 222 (2013). Thus, in resolving the defendants' motion, the court must determine whether it was error to permit testimony regarding Schwartz's actual risk of procedure in past operations and, if so, whether such error was harmful.
A
In support of the objection, the defendants argue that testimony regarding Schwartz's prior surgeries of that type was inadmissible under § 4-5 of the Connecticut Code of Evidence. In particular, the defendants argue Schwartz should not have been cross examined based on a remark made by defense counsel in an opening statement, and that the remark did not otherwise open the door to testimony concerning injuries to other patients. Finally, the defendants contend that the error was harmful and the court's limiting instruction was insufficient to cure that harm.
Connecticut Code of Evidence § 4-5 provides, in relevant part: " (a) Evidence of other crimes, wrongs or acts inadmissible to prove character. Evidence of other crimes, wrongs or acts of a person is inadmissible to prove the bad character or criminal tendencies of that person. (b) When evidence of other crimes, wrongs or acts is admissible. Evidence of other crimes, wrongs or acts of a person is admissible for purposes other than those specified in subsection (a), such as to prove intent, identity, malice, motive, common plan or scheme, absence of mistake or accident, knowledge, a system of criminal activity, or an element of the crime, or to corroborate crucial prosecution testimony."
In opposition, the plaintiff argues that the defendants placed the risk of procedure at issue, which invited rebuttal from the plaintiff. The plaintiff further contends that defendants' counsel opened the door to such testimony based on remarks made in the opening statement. Regardless, the plaintiff argues that the questions directed to Schwartz were relevant to determining his knowledge of the risk of the procedure, and that any possible prejudice was resolved by the curative instruction that was delivered to the jury.
As a preliminary matter, the court notes that its ruling on the motion in limine precluded evidence from being introduced regarding the existence of past or pending medical malpractice claims against Schwartz. In response to a remark made by the defense counsel in the opening statement, plaintiff's counsel engaged in a line of questioning regarding the inherent risk of injury in performing a posterior cervical triangle lymph node biopsy. In the course of testimony, Schwartz was permitted to testify, over defense counsel's objection, that he had previously injured another patient in performing that procedure. In support of its rulings, the court indicated that the testimony was permitted for the limited purpose of demonstrating that Schwartz knew the associated risk of procedure.
At trial, the following exchange took place on plaintiff counsel's direct examination of Schwartz:
Q So you heard your lawyer talk about how Mr. Leigh was unfortunate to hit the lottery of surgical risk? Did you hear that? A I did. Q And he said this is the one in the million case where the risk materialized? Is that right A Well, it's not really one Q But you did hear that testimony--that A Yes--yes, I did. Q And do you agree with it? A I don't agree with the number one in a million but I agree with Q Okay, A --there is a--there is a risk. Q And what is the number in terms of when you do these surgeries where you damaged the spinal accessory nerve? ATTY. KOCIENDA: Objection, your Honor. THE COURT: Overruled. A Can you repeat question please? Q Yeah. What's the number? It's not one in a million. What's the risk for surgery with you in terms of damaging the spinal accessory nerve in posterior cervical triangle lymph node biopsies? ATTY. KOCIENDA: Objection, your Honor. THE COURT: Overruled. A About 10 percent.(Trial Transcript, 6/16/15, pp. 75-77.)
In response to further questioning by plaintiff's counsel, Schwartz testified to the following:
Q Alright. So let's focus on 1982 to 2010, your 26 years as a practicing surgeon. Um, when you say you did it the way you've always did it, you mean you did it the same for Mr. Leigh as you did it with your previous 11 surgeries, correct? A Yes. I followed the principle of good surgery. Q Okay. And, um, how did we know you didn't violate the standard of care in those 11 other surgeries? ATTY. KOCIENDA: Objection. THE COURT: Sustained. Q Has the way that you always did it ever resulted in a spinal accessory nerve in one of your ATTY. KOCIENDA: Objection. Q --other patients? THE COURT: I'm going to overrule it. A Yes. Q Okay. I'm not going to ask about the specifics of that case. But is it fair to say then two out of the 12 times that you've done this procedure there's been a spinal accessory nerve injury? ATTY. KOCIENDA: Objection. THE COURT: Overruled. A Yes. *** Q So it's the rate of risk in your procedures is greater than one in a million, correct? A Yes.(Trial Transcript, 6/16/15, pp. 85-87.)
An attorney's argument in an opening statement may open the door for admission of otherwise inadmissible evidence. See Grayson v. Wofsey, Rosen, Kweskin & Kuriansky, 231 Conn. 168, 192, 646 A.2d 195 (1994) (" The trial court did not abuse its discretion in concluding that the judicial opinions in question were admissible as a relevant response to [counsel's] opening statement to the jury."). " Generally, a party who delves into a particular subject during the examination of a witness cannot object if the opposing party later questions the witness on the same subject . . . The party who initiates discussion on the issue is said to have opened the door to rebuttal by the opposing party. Even though the rebuttal evidence would ordinarily be inadmissible on other grounds, the court may, in its discretion, allow it where the party initiating inquiry has made unfair use of the evidence . . . This rule operates to prevent a defendant from successfully excluding inadmissible prosecution evidence and then selectively introducing pieces of this evidence for his own advantage, without allowing the prosecution to place the evidence in its proper context . . . The doctrine of opening the door cannot, of course, be subverted into a rule for injection of prejudice . . . The trial court must carefully consider whether the circumstances of the case warrant further inquiry into the subject matter, and should permit it only to the extent necessary to remove any unfair prejudice which might otherwise have ensued from the original evidence." (Internal quotation marks omitted.) State v. Brown, 309 Conn. 469, 479, 72 A.3d 48 (2013).
The testimony did not, at first, concern the prior nerve injury caused by Schwartz in performing a posterior cervical triangle lymph node biopsy. Rather, it concerned the general risk of injury in performing this procedure as recognized by the medical community. The court's ruling on the motion in limine did not preclude evidence of the risk of procedure. It precluded evidence of other malpractice claims against Schwartz, and no such evidence was admitted. Nevertheless, to the extent that the risk of procedure evidence was understood to be precluded as part of the motion in limine, the defense counsel opened the door to that evidence based on the remarks in the opening statement.
As the testimony developed, however, it moved from the general risk of procedure to Schwartz's actual rate of injury. " [A]s a general rule, evidence of prior misconduct is inadmissible to prove that a defendant is guilty of the crime of which he is accused . . . Nor can such evidence be used to suggest that the defendant has a bad character or a propensity for criminal behavior . . . Evidence may be admissible, however, for other purposes, such as to prove knowledge, intent, motive, and common scheme or design, if the trial court determines, in the exercise of judicial discretion, that the probative value of the evidence outweighs its prejudicial tendency . . . In order to determine whether [prior act] evidence is admissible, we use a two-part test. First, the evidence must be relevant and material to at least one of the circumstances encompassed by the exceptions. Second, the probative value of such evidence must outweigh the prejudicial effect of the other crime evidence." (Internal quotation marks omitted.) State v. Nunes, 260 Conn. 649, 684-85, 800 A.2d 1160 (2002).
" The trial court has wide discretion to determine the relevancy of evidence . . . Every reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion . . . The proffering party bears the burden of establishing the relevance of the offered testimony . . . Evidence is relevant if it has any tendency to make the existence of any fact that is material to the determination of the proceeding more probable or less probable than it would be without the evidence . . . Evidence is not rendered inadmissible because it is not conclusive. All that is required is that the evidence tend to support a relevant fact even to a slight degree, [as] long as it is not prejudicial or merely cumulative." (Citations omitted; internal quotation marks omitted.) Awdziewicz v. Meriden, 317 Conn. 122, 136, 115 A.3d 1084 (2015).
" [E]vidence of whether an injury might well happen even in the absence of negligence, certainly has a logical tendency to aid the trier in the determination of an issue . . . specifically whether a breach of the standard occurred or was the cause of the harm to the plaintiff." (Citation omitted; internal quotation marks omitted.) Hayes v. Camel, 283 Conn. 475, 484, 927 A.2d 880 (2007). Thus, evidence of the risks of a surgical procedure is relevant in the determination of whether the standard of care was breached, and " such evidence is properly admitted, without this risk of confusion and inappropriate prejudice, in the form of, for example, testimony by the defendants or nonparty expert witnesses about the risks of the relevant surgical procedures generally." Id., 488.
The defendants rely upon informed consent cases in support of their arguments regarding the relevance of prior act evidence. The relevance analysis of prior act evidence in an informed consent action is of limited value in the instant matter. An informed consent claim involves a different standard than that of a traditional medical malpractice claim. " [I]nformed consent involves four specific factors: (1) the nature of the procedure; (2) the risks and hazards of the procedure; (3) the alternatives to the procedure; and (4) the anticipated benefits of the procedure." (Internal quotation marks omitted.) Duffy v. Flagg, 279 Conn. 682, 688, 905 A.2d 15 (2006). " [T]he lay standard of informed consent requires a physician to provide the patient with that information which a reasonable patient would have found material for making a decision whether to embark upon a contemplated course of therapy." (Emphasis in original.) Id., 692. Thus, in an informed consent claim, the relevance of risk of procedure evidence or of prior act evidence is not determined based on the standard of care in performing the procedure, but rather the standard of care in informing a reasonable patient of the risks involved.
As applied to the plaintiff's theory of malpractice--that the occurrence of the injury evidences a departure from the standard of care--evidence concerning the risk of procedure in performing a lymph node biopsy goes to the heart of the case. If credited, testimony indicating that there is an inherent risk of injury in performing the procedure, even in the absence of negligence, provides an almost complete defense to the plaintiff's claim. This is because evidence that some injuries are inevitable risks of a procedure, standing alone, would make it nearly impossible for a lay jury to determine whether an injury is properly attributed to negligence or some inscrutable statistic. The shield afforded by risk of procedure sits in tension with the Supreme Court's recognition that " inherent surgical risks, whatever they may be, do not relieve a surgeon of his or her responsibility to adhere to the relevant standard of care." Hayes v. Camel, supra, 283 Conn. 493. Therefore, once the risk of procedure is raised, it is imperative that a medical malpractice claimant be permitted to introduce evidence in rebuttal.
For an expert witness, whose opinions are based on the expert's actual experience, as well as commonly-accepted medical standards, it is reasonable to testify not only to the risk of procedure as recognized by the medical community, but also the expert's own actual risk of procedure. The actual risk, should it be different from that suggested by other sources available to the expert, may aid a jury in determining how much to credit the general risk, which, in turn, is relevant to whether the exact circumstances surrounding an injury indicate a departure from the standard of care. Testimony regarding the risk of a procedure, then, naturally invites rebuttal testimony concerning a defendant's knowledge of the risk of procedure. That knowledge may be demonstrated by contrasting an individual physician's actual risk of procedure with the general risk of procedure recognized by the medical community.
To that end, there was substantial argument and testimony offered at trial regarding the risk of procedure. In light of the exculpatory value of evidence regarding the risk of procedure, it is no surprise that it was featured prominently in the defendants' case. In the defense counsel's opening statement, it was emphasized that there is an inherent risk of injury when performing a posterior cervical triangle lymph node biopsy. Similarly, in addition to the objected-to testimony elicited from Schwartz, there was testimony from both the plaintiff's expert and the defendants' expert concerning the risk of procedure. When the plaintiff's expert, Dr. Kaiser, was asked for his opinion regarding the risk of procedure as conducted on the plaintiff, he testified that " with a superficial node that is palpable, there should be essentially no risk to adjacent structures." (Trial Transcript, 6/18/15, A.M. Session, pp. 44-45.) He later described the relative risks under different circumstances, explaining that: " We could talk about the risk of nerve injury. That risk can range from probably zero to maybe as high as even ten per cent. But with a superficial node, it should be zero." (Id., pp. 98-99.) Likewise, the defendants' expert, Dr. Graham, testified that the risk of procedure " ranges from zero to ten per cent." (Trial Transcript, 6/25/15, A.M. Session, pp. 30.) Dr. Graham's own experience in performing the procedure, however, yielded an injury rate of about one percent, towards the bottom of that proffered range. (See id., pp. 74.) The actual risk of procedure, as evidenced by expert testimony, was substantially below the ten percent risk of procedure that was testified to by Schwartz. The additional testimony regarding the risk of procedure was wholly relevant to determining the proper standard of care in performing a posterior cervical triangle lymph node biopsy.
For example, in addition to the remarks that plaintiff's counsel claim opened the door to this testimony, defense counsel made the following statements concerning risk of procedure: " And, though it's true that lymph node biopsies have a lower risk, it had--there is procedure that does not have no risk. It is not a no-risk procedure." (Trial Transcript, 6/16/15, pp. 52.) " It shouldn't surprise you to believe that one of the risks is that the spinal accessory nerve may be injured during the procedure even if it's done correctly." (Id., pp. 56.) " Is this procedure risk free? One hundred percent at all time risk free that the lymph node when removed will never cause a nerve injury to the spinal accessory nerve? No. No. It could still happen but not often, not common, not all the time, but it is a risk of the procedure." (Id., pp. 63.)
Evidence regarding the risk of procedure may prove to be of exceptional value to a medical malpractice defendant, such that a plaintiff would be severely prejudiced if he is not permitted to present rebuttal evidence. The defense counsel placed the risk of procedure for a posterior cervical triangle lymph node biopsy at issue with the remarks made in the opening statement. These statements, at a minimum, opened the door to rebuttal by opposing counsel. Moreover, the testimony elicited in rebuttal was relevant and admissible with respect to the risk of procedure defense, if not the plaintiff's medical malpractice theory in general. The court recognizes that the defendants' objection is directed more specifically to testimony regarding Schwartz's actual rate of injury, not necessarily that of the other experts or the general risk of procedure acknowledged within the medical community. Nevertheless, that testimony was offered to demonstrate the expert witnesses' and Schwartz's knowledge of the prevailing standard of care, which is one of the recognized exceptions to the rule barring prior act evidence.
B
Concededly, but for the fact that it fell within an exception, this type of prior act evidence would generally be barred by § 4-5 of the Connecticut Code of Evidence. Assuming that it was error to permit testimony regarding the Schwartz's risk of procedure with respect to past operations, then the defendant must still demonstrate that such error was harmful. " [T]he standard in a civil case for determining whether an improper ruling was harmful is whether the . . . ruling [likely] would [have] affect[ed] the result . . . A determination of harm requires us to evaluate the effect of the evidentiary impropriety in the context of the totality of the evidence adduced at trial . . . Thus, our analysis includes a review of: (1) the relationship of the improper evidence to the central issues in the case, particularly as highlighted by the parties' summations; (2) whether the trial court took any measures, such as corrective instructions, that might mitigate the effect of the evidentiary impropriety; and (3) whether the improperly admitted evidence is merely cumulative of other validly admitted testimony . . . The overriding question is whether the trial court's improper ruling affected the jury's perception of the remaining evidence." (Citations omitted; internal quotation marks omitted.) Duncan v. Mill Management Co. of Greenwich, Inc., supra, 308 Conn. 20 (improperly admitted evidence was insufficiently harmful to warrant new trial).
Evidence regarding the risk of procedure was closely related to the central issues of the case. The plaintiff's theory of negligence, as discussed above, focused on Schwartz's departure from the standard of care as evidenced by the occurrence of the injury. Thus, proof of negligence necessarily relied to some degree on probability. See, e.g., Tornaquindici v. Keggi, supra, 94 Conn.App. 839-41 (medical malpractice claim does not necessarily lie on a precise explanation of how injury was caused).
As discussed above and demonstrated by the arguments of counsel and expert testimony, the evidence regarding the general risk of procedure was closely related to the evidence regarding the actual risk of procedure. On the second day of the direct examination of Schwartz, the plaintiff's counsel questioned him regarding both the general risk of procedure and his own risk of procedure in performing a posterior cervical triangle lymph node biopsy:
Q And in 2008, you've done 11 procedures and had caused one SAN nerve injury; correct? ATTY. KOCIENDA: Objection, your Honor. THE COURT: Overruled. ATTY. KOCIENDA: Thank you. A Yes. *** Q All right. So at that point, your rate of SAN injuries is nine percent; right? A That's what my arithmetic shows. Q Okay. And there was testimony, yesterday, I think that up to 10 percent risk of SAN injury is just standard for this kind of procedure; right? A Yes; that's correct. Q Okay. And there's no technique, there's no being careful and skillful, there's no expertise that can reduce the risk beyond--below 10 percent; correct? A Despite doing a good operation, the risk still exists. Q And it's an immutable risk of the procedure, up to 10 percent of patients are going to get this injury no matter how careful doctors are; right? A Correct. Q Okay. So you're actually--You're shooting under par in 2008, correct, in your view? A Okay. If you want to put it that way. Q All right. In 2008, after you injured Mr. Leigh with your technique and we can agree you injured his SAN nerve his SAN; correct? A Yes, it was injured. Q You injured it, right? A Yes. Q Okay. And it isn't--There's a word for that kind of injury, when a doctor does it, it's called iatrogenic; right? A It's the word; yes. Q Okay. What does iatrogenic mean? A It means trauma that's caused by a surgical procedure. Q Okay. And that's what this way, this was an iatrogenic injury by you to Mr. Leigh's surgi--spinal accessory nerve; correct? A It was iatrogenic; yes. Q All right. So in 2008, now you've had 12 procedures and you've had two SAN never injuries, correct, or SAN spinal accessory nerve injuries; correct? A Yes. Q And that's a 17 percent rate of injury; correct? ATTY. KOCIENDA: Objection, your Honor. THE COURT: Overruled. A According to your arithmetic; yes.(Trial Transcript, 6/17/15, pp. 109-12.)
The potential for prejudice inherent in that evidence, however, must be considered with respect to the effect of other testimony regarding the risk of procedure and the inferences that are naturally drawn therefrom. This is important because once it is submitted that a risk of procedure exists, representing a statistical likelihood of injury independent of any negligence by the physician, that risk is understood to have attached to any past performance of the procedure by that physician. If, for example, the risk of a particular procedure is recognized to be ten percent, then one may draw the conclusion that a physician who has performed that procedure ten times is statistically likely to have injured a patient.
In other words, once evidence of a prior act is presented--in this case evidence that a nerve injury occurred in the course of a prior procedure--it serves only to confirm what a factfinder could already have reasonably inferred. It is the very nature of the risk of procedure defense that mitigates the potential for prejudice caused by prior act evidence because that doctrine assumes that mere occurrence of the injury, without more, does not necessarily indicate a departure from the standard of care. This stands in contrast to other applications of prior act evidence, where the wrongful or negligent character of the prior act is readily apparent and harmful. As such, when the risk of procedure has been raised, and then evidence of a prior act is presented without any additional context from which negligence can be inferred, its potential harm is substantially reduced.
There was ample testimony regarding the general risk of this procedure, the risk of procedure in light of the plaintiff's anatomy, and Schwartz's provider-specific risk of procedure. Testimony regarding the risk of procedure is admissible in the context of a medical malpractice claim. See Hayes v. Camel, supra, 283 Conn. 488. Thus, testimony regarding Schwartz's provider-specific risk was cumulative of the other properly admitted testimony, mitigating the potential harmful influence of improper evidence before the jury.
The court notes additionally that " even improperly admitted evidence of this nature may not prove to be harmful when the court takes adequate corrective measures." Duncan v. Mill Management Co. of Greenwich, Inc., supra, 308 Conn. 21-22. " It is well settled that the jury is presumed to follow the court's curative instructions in the absence of some indication to the contrary . . . Thus, [a] jury is normally presumed to disregard inadmissible evidence brought to its attention unless there is an overwhelming probability that the jury will not follow the trial court's instructions and a strong likelihood that the inadmissible evidence was devastating . . ." (Internal quotation marks omitted.) Modaffari v. Greenwich Hospital, 157 Conn.App. 777, 785, 117 A.3d 508, cert. denied, 319 Conn. 904, 122 A.3d 1279 (2015).
" The trial judge can gauge the tenor of the trial . . . and can detect those factors, if any, that could improperly have influenced the jury." Childs v. Bainer, 235 Conn. 107, 113-14, 663 A.2d 398 (1995). Having presided over the trial, the court was wholly aware of the potential for prejudice if the jury were to misconstrue that evidence. Accordingly, the court issued the following limiting instruction as part of its charge: " I'm going to talk to you about some testimony that came out relating to prior surgery performed by Dr. Schwartz. You hear a--you heard evidence that in a prior surgical excision of a posterior cervical lymph node performed by Dr. Schwartz, the patient sustained--sustained some form of a nerve injury. Let me caution you that you are not to use that evidence in your determination of whether Dr. Schwartz was negligent when he performed Mr. Leigh's surgery. The law is clear that evidence of the outcome of any surgery performed by Dr. Schwartz other than Mr. Leigh's surgery is not relevant to your determination of whether Mr. Leigh's surgery was performed within the standard of care. That is because we do not have any facts about the other surgery, such as the patient's anatomy or the location of the lymph node. Due to health privacy laws, introducing that kind of evidence would have been impermissible. As a result, we do not know anything about that patient or his/her surgery, nor can we assume or speculate any facts. The purpose of the court in allowing the evidence was simply to provide information on what Dr. Schwartz knew of the risk of the procedure. It cannot and must not be used for any other purpose. Specifically, you may not use that evidence to infer that Dr. Schwartz was negligent when he performed surgery on Mr. Leigh." (Trial Transcript, 6/29/15, pp. 132-33.)
The instruction contextualized the purpose for which the evidence could be considered and explicitly identified the purposes for which it could not be considered. The jury is presumed to follow a court's curative instruction. To rebut the presumption that the jury failed to disregard inadmissible evidence, the defendants must demonstrate that there is an overwhelming probability that the jury did not follow the court's instruction and that the inadmissible evidence was devastating. In light of the admissible evidence that supports the plaintiff's claim, and for the other reasons discussed above, there is no indication that the remaining evidence, even if inadmissible, was devastating to the defendant. The defendants have otherwise failed to demonstrate that there is an overwhelming probability that the instruction was not followed. Therefore, the testimony regarding Schwartz's actual rate of injury, if inadmissible, was not harmful. Furthermore, any potential for harm was adequately remedied by the court's curative instruction to the jury.
C
The defendants additionally argue that it was error for the court to permit evidence that the plaintiff's enlarged lymph node was not cancerous and did not require surgery. In opposition, the plaintiff contends that such testimony was not intended to prove that Schwartz was negligent electing to perform the surgery, and that there is no indication that the evidence was unduly prejudicial. Instead, the plaintiff argues that the testimony and argument was intended to demonstrate that the decision to perform surgery was consistent with the standard of care precisely because the risk of procedure was so low, and that the subsequent injury evidences a departure from the standard of care.
The plaintiff did not raise a theory of unnecessary surgery in his claim and so should not have been able to present evidence in support of that theory or recover on that theory at trial. " To properly raise a theory of liability in the trial court, a party must articulate it in advance, as a nearly warning, so that an opposing party may frame its presentation of evidence accordingly." (Internal quotation marks omitted.) White v. Mazda Motor of America, Inc., supra, 313 Conn. 620. " The principle that a plaintiff may rely only upon what he has alleged is basic . . . It is fundamental in our law that the right of a plaintiff to recover is limited to the allegations of his complaint." (Citations omitted; internal quotation marks omitted.) Matthews v. F.M.C. Corporation, 190 Conn. 700, 705, 462 A.2d 376 (1983).
Although there was testimony regarding other available methods of diagnosis that had risks of procedure of zero or one percent, none of the experts testified that Schwartz's decision to perform the posterior cervical triangle lymph node biopsy was either a departure from the standard of care or otherwise negligent. To the contrary, even the plaintiff's expert, Dr. Kaiser, testified that ordering the lymph node biopsy did not depart from the standard of care, and that he would have done the same. Thus, the expert testimony and argument regarding the available methods of diagnosis was relevant to the plaintiff's theory that Schwartz's decision to perform the biopsy was indicative of how low the actual risk of procedure is for a posterior cervical triangle lymph node biopsy.
The following exchange between plaintiff's counsel and Dr. Kaiser is emblematic of the nature of the testimony to which the defendants have objected:
Q Doctor, just so we're a hundred percent clear, you're not here to testify that Dr. Schwartz departed from the standard of care when he ordered a lymph node biopsy to rule out the possibility of lymphoma; correct? A That's right. Q That's what you would have done, too; right? A Yes. Q Okay. And now we're talking about the reason why that makes sense for doctors to do as a first step, okay, because there are other first steps you could take in this situation; right? A Correct. Q One of the first steps is that you could take and this isn't the standard of care, but you could try somebody on antibiotics for two weeks; right? A You could. Q And you could instead of wiping everything out with a lymph node biopsy, you could sort of pick them off; right? A You could. Q And you could determine if it was metastatic cancer from a needle biopsy; right? A You could. Q And those are all more conservative measures than taking the whole thing out; right? A Correct. Q But why don't you do that? Why do you skip right to taking the whole thing out and knocking out every diagnosis at once? A Again, I think you make that decision based on the history and the findings on the node. I mean, again, how long the node had been there, had it changed in size, is it associated with other symptoms. You make a decision based on that.(Trial Transcript, 6/18/15, pp. 101-02.)
The possible harm, then, would lie in the remarks made by plaintiff's counsel in opening argument and closing argument, which may have been understood to advance the improper claim that the posterior cervical triangle lymph node biopsy was an unnecessary procedure.
" Um, so Mr. Leigh had basically cat scratch fever all long and he didn't need this procedure. Now, that's like a terrible irony of the case. And that's all it is. You know, he needed an antibiotic and the lymph node would have gone down and none of this would have been necessary. But we don't blame Dr. Schwartz for deciding the procedure should have been done because hindsight is 20/20 and maybe it was a lymphoma and we would be happy if we had known it earlier rather than later. But more importantly, it was the right call because this is supposed to be a very, very safe procedure to do." (Trial Transcript, 6/16/15, pp. 38-39.)
" They don't do the conservative measures first. They just skip right to the removal. They don't say, well, I'd like to just skip right to the removal and see if the patient has lymphoma but what if the patient falls off operating table? You know, what if they operate on the wrong side? You know, what if they injure the spinal accessory nerve while taking out a superficial lymph node? They don't think about that and then do that less risky things first because those things shouldn't happen. You know, they just order the test. That's the standard of care. And it's correct because this shouldn't happen." (Trial Transcript, 6/29/15, pp. 19-20.) " The fact that there really is no legitimate risk in--in a procedure like this dictates what the standard of care is for when someone comes into your office with an inflamed lymph node, right. Doctors don't think twice about ordering that lymph node removal as a first measure. And I talked about this with a lot of the witnesses. And I--I know it was confusing. But in reality, no doctor would expose a patient to any real risk of shoulder dysfunction--dysfunction for a diagnostic procedure unless there are no other reasonable alternatives. And you will do all the conservative things first before you expose them to that risk. You would try them on antibiotics. You know, that's in hindsight which isn't what were are here about. A simple antibiotic course would have cured Mr. Leigh, but with his lymph node. You can do blood test. You can do an MRI. Um, and you might not be able to rule out lymphoma by doing those things, but you could identify the condition as something other than lymphoma and, therefore, avoid the test of doing lymphoma. That's something that you could do, but that's not what doctors do. They don't do that.
Notwithstanding the fact that the jury was made aware that the lymph node was not cancerous, the potential for confusion or harm caused by the statements of plaintiff's counsel in opening argument and closing argument is offset by the overwhelming evidence presented at trial, including the testimony of the plaintiff's own expert, that Schwartz's decision to perform the posterior cervical triangle lymph node biopsy was consistent with the standard of care.
The court was careful to instruct the jury that the treatment of the plaintiff is not to be judged retrospectively or with the benefit of hindsight; that is, by looking at the plaintiff's ultimate diagnosis to determine what constituted reasonable care back in time. Besides the negative outcome for the defendants at trial, they have failed to demonstrate that the argument concerning unnecessary surgery was devastating to the defendant or that there was an overwhelming probability that the court's instruction regarding hindsight was not followed. Therefore, the defendants' argument as to this ground is unpersuasive.
CONCLUSION
Based on the foregoing, it was not necessary for the plaintiff to plead the doctrine of res ipsa loquitur to recover on his theory of medical malpractice, and the court did not err in its handling of the plaintiff's claim. While the jury may not resort to conjecture and speculation in reaching its verdict, it is the jury's right to draw logical conclusions and make reasonable inferences from the facts proven. See Gagne v. Vaccaro, supra, 255 Conn. 400. In this medical malpractice claim, the jury was permitted to rely on well-founded expert testimony in reaching its decision, even though that testimony was based upon inference.
Moreover, viewing the evidence in the light most favorable to the plaintiff, the court did not err by admitting evidence concerning the general and actual risk of procedure as applied to Schwartz, and regardless, such evidence was not so harmful as to affect the jury's perception of the remaining evidence. Likewise, to the extent that the argument and testimony concerning the alternative methods of diagnosis led to evidence that the elected procedure was unnecessary--in violation of the court's ruling on the motion in limine--such evidence was not harmful. Any possible harm resulting from the court's rulings was mitigated by the limiting instructions given to the jury, which the jury is presumed to have followed. The defendants have failed to meet the high burden of proving that the jury disregarded the court's limiting instructions.
Therefore, the defendants' motion for judgment notwithstanding the verdict and, alternatively, to set aside the verdict and permit a new trial (#237) is denied.