Opinion
No. CV-99-0426731 S
March 9, 2004
MEMORANDUM OF DECISION ON DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
This case lies in medical malpractice in which it is alleged that the plaintiff's decedent entered the defendant hospital for a knee replacement. It is further alleged in the revised complaint that the decedent donated his own blood for the procedure but that a unit of blood which was not his own was mistakenly administered to him. The complaint goes on to claim that the hospital and a nurse were negligent chiefly in failing to monitor and treat the decedent's condition after the blood transfusion. It is then alleged that as a result of this negligence injuries were caused which led to the death of Dr. Cavallaro almost one year after the surgery.
The defendants have filed a motion for summary judgment which basically argues that the plaintiff has no medical expert who will be able to testify that the defendants caused the injuries alleged in the revised complaint.
The standards to be applied in deciding a motion for summary judgment are well known. A court cannot decide genuine issues of material fact because parties have a constitutional right to a jury trial. But if no issue of material fact is presented a court can grant such a motion. In this case the facts are not so much in dispute, the question presented is whether, given the facts, the necessary rulings of law justifiably should leave the plaintiff in a position where expert testimony cannot be presented thus mandating the granting of the defendants' motion for summary judgment. The court takes no pleasure in deciding that the latter course of action is necessary but it has allowed extensive argument and briefing and along the way conducted an evidentiary hearing to ensure that if it is in error that error can be corrected by the appellate courts.
A basic premise to any discussion of the issues presented by this case is that expert testimony is usually needed to establish causation in this medical malpractice case. A necessary element in any such action is proof by the plaintiff that the medical provider'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. Gordon v. Glass, 66 Conn. App. 852, 855-56 (2001). As noted in Medical Malpractice, Louiselle Williams, Vol. I, pp. 8-90, 8-91 at § 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 exception for circumstances which are obvious to a layperson." Cf. Gannon v. Kresge Co., 114 Conn. 36, 37 (1931); Shegog v. Zabrecky, 36 Conn. App. 737, 747 (1995); Sapiente v. Waltuch, 127 Conn. 224, 227 (1940); and Orthopedic Clinic v. Hanson, 415 P.2d 991 (Okla. 1966).
This case clearly does not present "circumstances which are obvious to a lay person" on the issue of causation. Involved here are complex questions as to whether the blood transfusion caused a deterioration in this man's condition leading to his death over a year later, the bearing if any on his underlying medical condition on this issue, whether even his immediate medical problems after the transfusion arose from that or unrelated medical problems. Except for possible application of the "sudden onset" doctrine, which the court will discuss, both sides seem in fact to recognize the need for expert testimony on the issue of causation. For that reason the plaintiff disclosed over the course of the litigation two nurses who in part were disclosed as experts to establish a causal relationship between the alleged violation of the standard of care and the injuries suffered by Dr. Cavallaro. The plaintiff also sought to have Dr. Gerstenhaber testify on the issue of causation and made a disclosure to this effect on September 10, 2003. Also, the plaintiff attempts to present certain notes in the hospital record as expert testimony on the issue of causation.
After the disclosure by the plaintiff of Dr. Gerstenhaber as an expert witness on causation the defendant filed a motion to preclude his testifying. The court held fairly lengthy hearings on the question on separate days and ultimately decided to preclude his testimony. The court articulated in the transcript its reasons for doing so and referred to the case law.
The court will rely on the reasons given for its decision on the motion to preclude but will also set forth its position in this opinion. It will also discuss why it did not change its position after a deposition of Dr. Gerstenhaber was held and supplemental briefs and arguments were held.
The court also held a hearing on a motion in limine filed by the defendant to preclude two nurses from testifying on causation. Both nurses testified and the court granted the motion in limine so as to bar their testimony on the issue of causation. Argument was held and the court articulated its position citing several cases in reaching its conclusion. The court will briefly discuss its reasoning in this opinion and would refer to the transcript also.
Finally, the court dealt with the issue of use of the hospital records to establish a causal connection between the alleged violation of the standard of care; briefs were filed and oral argument was held.
Lastly the court will discuss the applicability of the so-called "sudden onset doctrine" to prove causation which can be viewed as an exception to the requirement of expert testimony to prove causation.
The doctrine of res ipso loquitur would not be of any assistance to the plaintiff on the causation question. See Medical Malpractice Louisell Williams Vol. 1, § 8:08, pp. 8-99, 8-100 for discussion of the doctrine as it relates to causation. Two prerequisites for application of the doctrine cannot be met here (1) proof of causation was not practically impossible here, properly obtained and disclosed experts could have testified on the issue of causation (2) it cannot be said in this case that without expert testimony the "injury is of a kind which ordinarily does not happen in the absence of someone's negligence."
(1)
The court will first discuss the issue of the preclusion of Dr. Gerstenhaber's testimony on the issue of causation. Certain preliminary facts must be set forth. Trial was scheduled to begin at the beginning of September 2003. Suit had been brought in June 1999 over four years prior to the commencement of trial. At the time the case was to be tried New Haven was operating under the so-called week certain system. A case, on the date trial was to commence, was given to the judge who was to try the case for the purpose of beginning jury selection. Jury selection in a case of this type, at least in the court's experience, usually takes from one to two weeks. Defense counsel had made attempts to get Dr. Gerstenhaber's records but had not been successful. On August 25, 2003 to protect his position defense counsel disclosed Gerstenhaber as his expert. He received the records in September and interestingly enough a note therein disclosed that the doctor told the decedent's wife in August 1998 that the pulmonary fibrosis predated the improper transfusion and whether the exacerbation of that condition which ultimately resulted in death was a question that was "unanswerable." One would suppose that this was communicated to her counsel by the decedent's wife and there is some indication in the January 20, 2004 transcript that it was. But in any event counsel had never contacted Dr. Gerstenhaber during the course of the litigation. He first contacted him when he received the August 25th disclosure from the defendant. When plaintiff's counsel contacted the doctor the doctor said that he now believed there was a direct causative link between the improper transfusion and the resulting deterioration and death of the decedent. Apparently nothing in the records themselves could have provided a basis for establishing the requisite causation needed to establish this element of the plaintiff's claim. This can be deduced from an observation made by the plaintiff in one of its briefs opposing summary judgment. There it is said:
In light of defendant's disclosure date August 25, 2003, plaintiff requested Dr. Gerstenhaber's opinion as to causation and was provided it with succinct specificity, as opposed to gleaning it from medical records which were attached to defense counsel's Supplemental Motion for Summary Judgment which did not address the issue directly.
Beyond not addressing the issue "directly" a reference in the doctor's medical records, as noted, indicated that in fact Gerstenhaber told the wife the question of causation was "unanswerable."
Based on these predicate facts the court determined the very late disclosure of Gerstenhaber as an expert by the plaintiff was not permissible. The plaintiff's argument against this conclusion was based principally on the reasoning set forth in Lane v. Stewart, 46 Conn. App. 172, 177 (1997), and Loiseau v. Board of Tax Review, 46 Conn. App. 338, 344 (1997), which the plaintiff interprets as permitting a party under all circumstances to disclose and call as an expert any expert in fact disclosed by the other side.
If Lane and Loiseau are read closely, however, they do not apply to the facts of this case and what occurred here. The court in Loiseau in commenting on the predecessor section of the Practice Book of P.B. § 13-4 said at pp. 344-45:
. . . where one party has disclosed an expert witness pursuant to P.B. § 220D and that expert witness has either been subsequently deposed by the opposing party or the expert's report has been disclosed pursuant to discovery, then either party may call that expert witness to testify at trial . . . Here as in Lane, by disclosing the witness the defendant made it possible for the plaintiffs to discover evidence that the plaintiffs decided was beneficial to their case and should be brought before the trier of fact. To allow the defendant to prevent the witness from testifying may deprive the trier of fact of material and relevant information that would have assisted it in reaching a decision in the case . . .
Id. pp. 344-45.
Here we do not have a situation where the defendant learns of information from an expert that is favorable to the other side, discloses the expert as its own and tries to prevent thereby the plaintiff from using the expert to his or her advantage. In this case at the time he made his August 25th disclosure of Dr. Gerstenhaber, he did not even have the doctor's treatment records despite demand for them. It was not unreasonable under these circumstance for defense counsel to assume that there might be favorable information in the treating doctor's records which, as said, were not timely produced and when the plaintiff itself had not disclosed the doctor as an expert. In fact in those treatment records, unbeknownst to defense counsel at the time of the disclosure there was, as noted, a comment to the effect that Gerstenhaber told the decedent's wife the cause of death was "unanswerable."
In this regard a case cited in Loiseau said the following:
If a defendant is allowed to use information learned from the examination of a plaintiff if it is favorable but suppress the same information when it is unfavorable then this would result in unfairness against the plaintiff without whose submission to a physical examination the evidence could not have been obtained.
But again, that is not the problem presented here. Gerstenhaber was the decedent's own treating physician. His records were available to the plaintiff at any time and to the defendant only upon demand. By disclosing Dr. Gerstenhaber as his expert the defendant was not trying to use this as a device to preclude the plaintiff from learning information that the defendant knew of or even had reason to know that was favorable to the plaintiff. This favorable information was only discovered after plaintiff's counsel called the doctor and came into existence as far as the parties were concerned after Gerstenhaber was disclosed on August 29 by the defendant at a time when the defendant had no access to the records of Gerstenhaber. Even if there was such access, by the plaintiff's own recognition, those records would not have supported the causation element for the plaintiff.
Furthermore, there is an article in 77 A.L.R.2d 1182 which discusses the propriety of having one party call another's expert. At page 1191 it says:
An important consideration in determining whether one employed as an expert by one party may or should be required to testify as such at the instance of the adverse party is whether, under the particular circumstances, it is fair to do so.
Cited in Fenlon v. Thayer, 506 A.2d 319, 127 N.H. 702, 707 (N.H. 1986), also cited in Loiseau.
Thus an even more fundamental problem is presented if the plaintiff seeks to rely on Lane-Loiseau reasoning. The predicate for Lane-Loiseau has not even been reached here — Gerstenhaber was not "employed" by the defendant, the records in question were prepared by Dr. Gerstenhaber while he was the decedent's treating physician, there is not an iota of evidence that somehow the defendant had some knowledge apart from the records that Gerstenhaber had information favorable to the plaintiff at the time of the disclosure.
In other words what this situation comes down to is a failure by the plaintiff to contact the decedent's treating physician until immediately before trial when she had over four years to do so and every reason to do so after two nurses were procured by the plaintiff who were prepared to support the plaintiff's position on causation. At a deposition held after the court's ruling on the motion to preclude and while this motion was pending Dr. Gerstenhaber said he changed his position after being contacted to prepare for the deposition and also in light of a medical article he read within the six months before his November 26, 2003 deposition. If he had been contacted any time before the trial date within the above-mentioned time frame the plaintiff would not have had to resort to a September 10 disclosure.
But two other factors should be addressed for the purpose of a complete record on this issue. After the court concluded that there was grounds to grant the defendant's motion to preclude Dr. Gerstenhaber's testimony, it asked defense counsel why Gerstenhaber should not be allowed to testify since jury selection would have taken one or two weeks and the court was perfectly willing to be flexible in excusing the parties from that process for a short time or delay the trial a day or two to complete any deposition of Dr. Gerstenhaber. This has been the practice of this court at least in most if not all cases when it has concluded a motion to preclude otherwise had merit. But when the court asked defense counsel why this would not be a fair resolution, he responded that Dr. Gerstenhaber, unlike the experts he had already retained, was a pulmonologist and he would need two months to retain his own expert in this speciality. Defense counsel, to the court's memory did not question the offered basis for this request. At that point, at defense counsel's request the court vacated its order on the motion to preclude and told counsel to go to the presiding judge to request the necessary continuance. This court felt as a trial judge a continuance of this length should properly be addressed by the presiding civil judge.
The presiding judge was not willing to grant such a continuance. The case at that point was almost four and a half years old and in real world terms a granting of defense counsel's request for a two-month continuance to obtain an expert would translate into months beyond that period to arrange depositions of the newly obtained expert and renewed depositions of Dr. Gerstenhaber.
But it would not be fair for the court to pass off its responsibility by saying after all, another judge made the critical decision. It certainly could be argued that justice requires that in a case of this type a continuance should have been granted to permit the introduction of critical evidence which the defendant would have had more than enough time to rebut. But somewhere in the equation of justice the practice book rules must be taken note of and the equal right of defendants to justice and the peace of mind that comes when they no longer have litigation hanging over their heads. This case is over four and a half years old. Its resolution does not revolve around who got to the intersection first or whether the supermarket mopped up the wet spot in the vegetable aisle. Defendants, one of them an individual nurse, have been accused in this civil suit of acting or failing to act in the scope of their professional responsibilities in such a way as to cause massive deterioration in the health of and the ultimate death of another person. To continue a case such as this, when it has been called in for trial, another two, four, six, eight months would not be just to the defendants.
There is another matter that should be mentioned. The court is writing this opinion at the end of February 2004. If two months had been given for the defendant to locate a pulmonologist perhaps it could be argued, the trial could have taken place at a no greater delay than it has taken to issue an opinion on the motion for summary judgment. But this is not a persuasive consideration. The trial would have in all likelihood been delayed well beyond the two-month period which was only the time to be given for the defendant to locate a pulmonologist. Furthermore, such a position would in effect vitiate enforcement of the practice book discovery rules whenever a court tries to enforce those rules by means of motions to preclude or otherwise bar testimony and a motion for summary judgment is pressed because the court has in effect done so. Parties, as here, must be given time to prepare supplemental briefs in light of the court's ruling. Depositions may have to be taken, argument will have to be scheduled, all of which occurred here. Should this mean then that faced with a request for a continuance necessitated by a failure to comply with rules about the timely disclosure of experts the court should not make a dispositive decision based on those rules relying on the rather lame excuse that the effective result of the court's ruling would lead to a continuance in the case anyway? That cannot be right. The court therefore does not believe that Dr. Gerstenhaber should be permitted to testify and relies on its earlier ruling to this effect.
(2)
The plaintiff disclosed two nurses before trial who were disclosed as being prepared to testify as to the nursing standard of care and also as to "the causal relation of the same to the incident alleged in the complaint."
On September 22, 2003 the court held an extended hearing pursuant to a motion in limine to preclude the testimony of these nurses on the issue of causation only. The transcript occupies 133 pages. After ordering and reviewing the transcript the court on November 7, 2003 in eight pages of the transcript gave its reasons for granting the defendants' motion in limine. The court will try to summarize its reasoning.
First the court does not accept the defendants' position that state statutes, specifically §§ 20-87a(a) and § 20-9(a), by defining the ambit of a nurses' appropriate area of practice prevent nurses from testifying as to causation because they are not authorized to render a diagnosis under the statutes. The argument presumes an interchangeability between diagnosis and giving an opinion on causation. Also, § 20-87a(a) says among other things that "the practice of nursing by a registered nurse is defined as the process of diagnosing human responses to actual and potential health problems." That is very broad language and our statute unlike a similar Pennsylvania's which the defendant cites, does not have the added language "The foregoing shall not be deemed to include the acts of medical diagnosis or prescription of medical therapeutic or corrective measures."
Besides, the court cannot ascertain any reason why nurses as a class should be excluded from our liberal rules allowing trial judges to find particular individuals, no matter what label is placed on them, from testifying as experts. See § 7-2 "Testimony of Experts," Code of Evidence. As noted in Tait's Handbook of Connecticut Evidence, 3d ed. at § 7.6.1, pp. 523-24.
The determination of whether a witness is qualified to testify as an expert is largely a matter within the trial judge's discretion . . . Expertise may come from practical experience or study alone . . . If reasonable qualifications are established, objections go only to weight, not admissibility.
The arguable limitations on this trial court discretion in subsection (d) of § 52-184c, which requires " Practice or teaching in a related field of medicine" and might allow argument that a nurse cannot be said to practice in a related field of medicine as far as this case is concerned do not apply since the statutory language appears only to apply to proffered testimony "as to the prevailing standard of care." Causation is not mentioned and the recent case of Sherman v. Bristol Hospital, Inc., 79 Conn. App. 78, 87-88 (2003), strongly suggests that properly qualified nurses can testify as to causation in a medical malpractice case.
Turning to the facts of this case the court can find that both of the nurses are highly skilled and articulate professionals who would be eminently qualified to testify on the question of the appropriate standard of care. But they do not have sufficient educational background or practical experience to testify about a transfusion reaction and how that would cause certain medical complications or in certain cases death.
Both nurses received their educational training about twenty years ago. They received standard nursing courses. Nurse Acri did take a pathophysiology course which dealt with "how the body responds to a blood transfusion" and at the hospital she was told "what happens to the body" during these episodes. But this falls far short of educational background on causation of the reactions and any relation they might have to an underlying pulmonary fibrosis condition. Over the course of their careers both nurses have done many transfusions but Nurse Acri has not done one for ten years. But the number of transfusions they have monitored is of no assistance to the court because the problem in this case as to causation is the reaction to the transfusion. The great bulk of their training has involved recognizing symptoms of a transfusion reaction and how to respond to them as a nurse. Each nurse over the course of their careers have had only two cases in which a transfusion reaction occurred. This is supportive of a conclusion that they are excellent nurses but does not permit a finding that they can testify as experts on matters of causation. Neither nurse has had any experience with long-term care of a person who has had a transfusion reaction. One nurse said, a patient she was monitoring had a transfusion reaction but the doctor allowed her to continue with the transfusion, in another case the transfusion was stopped. One nurse even testified that symptoms associated with a transfusion reaction, fever chills, could be due to something besides such a reaction during an operative procedure. Also both nurses did not read the complete medical records but only selective portions of them.
The court tried to find all the cases that permitted nurses to testify on causation or supported such a notion; they were Walker v. Texas, 201 S.W.2d 823 (Tex., 1947); Velasquez v. Commonwealth, 557 S.E.2d 213 (Va. 2002); Gregory v. State, 56 S.W.3d 164 (2001); Perry v. State, 691 S.W.2d 636 (Tex., 1985); State v. White, 457 S.E.2d 841 (N.C., 1995); Lesser v. St. Elizabeth Hospital, 807 S.W.2d 657 (Tex., 1991); and Johnson v. Herman, 659 S.W.2d 124 (Tex., 1983). The court reviewed the cases in its oral ruling in the November 7, 2003 transcript, pp. 29 et seq. None of the cases would support the plaintiff's position that the particular nurses in this case, given their experience and education, should be allowed to testify on causation. In fact the Velasquez and the Gregory case which allowed causation testimony, in Velasquez, on cause of a juvenile sex assault victim's injuries and Gregory on injuries supporting finding that a child was abused, can be sharply contrasted with the case now before the court. In Velasquez the nurse had received forty hours on classroom training on the subject. She was a sexual assault nurse examiner for six and a half years and had conducted examinations of 150 children under 16 who had been sexual assault victims plus 350 such exams of adults. In Gregory the nurse had completed a one-year course devoted to sexual assault cases. As part of her training she had studied medical literature on genital findings in sexually abused children. At the time of the examination of the victim in the case before the court the nurse in Gregory had performed sexual examinations for four years, had done 650 such exams of which 80 percent were examinations of children under twelve. She worked at a clinic that examines and interviews sexually abused children.
The case before the court, in its opinion, does not permit it to conclude that these two nurses could testify on the issue of causation.
(3)
The plaintiffs also seek to prove causation not only as to death, but also as to a deteriorating pulmonary condition as a result of the transfusion reaction, through the hospital records. The court will first make two preliminary observations.
Hospital records can be considered business records under § 52-180 and they are also admissible under § 4-104. The traditional rule under the business records exception is that: "an opinion included within an otherwise admissible business record is admissible if the entrant would be qualified to give that opinion in oral testimony." River Dock Pile Inc. v. OG Industries, Inc., 219 Conn. 787, 799 (1991). For this proposition the court cited D'Amato v. Johnston, 140 Conn. 54, 58 (1953), which was a case involving hospital records; in doing so it limited D'Amato without explicitly saying so. D'Amato seemed to say the qualifications of any expert rendering an opinion in a hospital record need not be established before the opinion is admissible.
In this regard, the commentary to § 8-3(5) of the Evidence code also points out that statements concerning the cause of an injury by a non-expert were traditionally inadmissible but "recent cases recognize that in some instances causation may be pertinent to medical treatment or advice." But two cases are cited which to the court indicate the limited ambit of this change from the common law. In State v. DePastino, 228 Conn. 552, 565 (1994), the court said statements about the cause of injury or identity of the perpetrator thereof are "usually not relevant to treatment and, therefore are not admissible under the medical diagnosis and treatment exception to the hearsay rule." (Present § 8-3(5)) of code. But the court went on to note that in cases of sexual abuse in the home statements made during treatment as to the abuser's identity are "reasonably pertinent to treatment." Id. In State v. Daniels, 13 Conn. App. 133, 135 (1987), the court allowed a doctor who treated the victim for her injuries to relate that she had been surprised by an intruder who hit her and knocked her down and since then she had suffered pain. The court ruled the hearsay objection was not well taken because, citing Federal Rules of Evidence § 803(4) which reads like our code at § 8-3(5) the statement before it dealt with "present symptoms, pain, or sensations, or the inception or general character of the cause or external cause thereof" and thus would be admissible if "reasonably pertinent to treatment." The Daniels case bears some relation to the so-called sudden onset doctrine which the court will discuss in the final footnote.
With these observations in mind the court will discuss the offer of the medical records and whether they can be introduced to prove causation as to death or more particularly under this claim pulmonary deterioration. The plaintiff's November 28, 2003 brief states the following:
On Wednesday, April 22, 1998 at 1449 or 2:49 p.m., by way of "medical/surgical admission history" the following information is detailed in the hospital record:
"Medical Hx" Updated on Wed, 22 Apr 1998 1501 Problem: pulmonary fibrosis Since: Wed, 7 May 1997 Updated By: Karen Rockey, RN.
Updated on Wed, 22 Apr 1998 1502 Problem: rxn to blood transfusion Since: Wed, 7 May 1997 Updated By: Karen Rockey, RN
Respiratory/Cardiovascular
Respiratory: productive rusty cough with crackles left side home o2 3-5 liters.
Comments: pt with pulmonary fibrosis'
The information contained in this note is different the admitting diagnosis of the May 7, 1997 admission to the same hospital but inquiries as to his respiratory condition. (Sic)
On Wednesday, May 7, 1997 at 0615 or 6:15 a.m. by way of "medical/surgical admission history" the following information is detailed in the hospital record:
"Medical Hx"
Respiratory/Cardiovascular
Respiratory: post nasal drip
Comments: denies cardiac problems
The records further state on April 22, 1998, the following" h/o pulmonary fibrosis on steroids since May 1997"; a nursing note, time of 3:40 p.m. "pt has hx of immune-medicated pneunionitis (2° to transfusion reaction in 97. s/p bilateral knee operation with implant in 5/97 which hospital course was complicated by tx reaction and went to pulmonary edema, recovered gradually. Echo in 5/97 concentric lvh. Pt has been discharged on 3 liters of Oxygen since that time also has been using walker and wheel chair since knee operation. Pt is now on 24 hr Oxygen now and has hx of [increase] in Oxygen use 6 liters. "Additional notes indicate" — interstitial pneumonitis (reaction to blood transfusion 2 years ago).
As regards the first noted entry of Wednesday, April 22, 1998 referenced as Medical Hx (medical history) and the opinions referenced therein, there are several problems. For one thing the records indicate the wife, Mrs. Cavallaro, is the "informant" or supplier of the information. Certainly she could not be qualified as an expert and the court cannot surmise that her information would have come from properly qualified experts.
The court recognizes that under § 8-3(5) of the Evidence Code a statement made to any treater such as a nurse can qualify for this hearsay exception as "a statement made for the purposes of obtaining medical treatment"; see commentary to this section and cf. State v. Maldanato, 13 Conn. App. 368, 374 (fn.3). Also departing from the common law the commentary further indicates such statements are not confined to those made by the patient — a statement by a relative bringing a child or husband for medical treatment can qualify. Also, if these premises are accepted, as noted in Tait's Handbook of Connecticut Evidence: "The rule that excludes information in a business record obtained from a person with no duty to report is subject to one exception. Such statements are admissible if they fall within another hearsay exception," if State v. Palozie, 165 Conn. 288, 295 (1973). The problem here is not the admissibility as such of any statements made by the patient or his wife — the problem is can they be considered as substitutes for testimony from experts.
Even leaving that aside the person who "updated" the medical history is a registered nurse. Nothing prevents a nurse from being qualified as an expert even as to causation given appropriate training and experience but certainly nothing would permit a court to assume without more that this nurse is so qualified from merely reading the records.
These notes are also inherently suspect in suggesting the pulmonary fibrosis first surfaced in May 1997 since in his deposition Dr. Gerstenhaber indicated the deceased pulmonary fibrosis went back to 1996 and "perhaps earlier."
The above-quoted sentence in the April 28, 1998 nursing notes at 3:40 p.m. is particularly confusing:
pt. Has hx of immune medicated pneumonitis 2° to transfusion reaction in '97. s/p bilateral knee operation with implant in 5/97 which hospital course was complicated by tx reaction and went to pulmonary edema, recovered gradually . . . Pt has been discharged on 3 liters of oxygen since that time and also has been using walker and wheelchair since knee operation.
But the plaintiff then says "additional notes indicate interstitial pneumonitis reaction to blood transfusion 2 years ago."
The juxtaposition is confusing on its face. Apparently "2°" means secondary. Websters defines "secondary" as meaning "of second rank importance or value." If we look at the first just quoted note and take secondary for what it means, what is the relation, if any, between the "immune medicated pneumonitis" and the transfusion reaction and what does the later have to do with the pulmonary edema if it is only secondary to the pneumonitis. But how is all of this related to the "additional notes" which indicate the pneumonitis was a reaction to the blood transfusion? Further complicating the problem, at least for the court, is the fact that the first note says the patient is said to have "recovered gradually" from the 1997 "hospital course." If that is so how is that to be related to a claim that the transfusion reaction caused the ultimate death and even if that is not the only claim but pulmonary deterioration is also before the court, what does "recover gradually" mean — did he fully recover, how much did he recover if not fully, when did all of this happen and how is the ambit of any claim as regards damage caused to his pulmonary system to be determined? What is the relationship between the oxygen usage and any reaction to the transfusion?
A note of 4/23/98 says that the patient was admitted the day before with pneumonia, unstable angina, and pulmonary fibrosis — if we turn back to the cause of death question how are these last comments to be tied up with any reaction to the transfusion? All of this discussion leaves aside the point that we are again talking about a nursing note. Even assuming the nurse could be qualified (of which there is no evidence) to make the observations in the note, how are we to determine whether the nurse even related these observations or history instead of say, Mrs. Cavallaro or some other unknown party who may or may not be qualified to make them.
The court has also reviewed the discharge summary prepared after death. The discharge summary creates more problems than it answers. The diagnosis is severe pulmonary fibrosis with severe underlying lung function and need for oxygen but "additional" factors are "congestive heart failure, duration unknown" with evidence of hemorrhage. The history does not even allude to a blood transfusion reaction but said the patient had "a history of severe pulmonary fibrosis," he had been on steroids since May 1997 "with severe underlying lung disease." But as noted his treating doctor Gerstenhaber, said his pulmonary fibrosis went back to 1996 and perhaps earlier.
From the notes and the discharge summary one cannot really ascertain whether the blood transfusion problem in May 1997 aggravated let alone caused his deteriorating lung condition or death. The most that can be said is that one followed the other (leaving aside the qualification as experts of anyone making these observations.) But as the Scottish philosopher David Hume established over two hundred years ago because B follows A, it does not mean A caused B. The problem is that expert testimony is certainly needed on this complicated causation issue, and the hospital records are not self-explanatory, — not only can we not say the entries were made by appropriately qualified people but also we would need an expert to interpret them.
In any event for the foregoing reasons the court grants the defendants' motion for summary judgment.
The court mentioned to counsel during the course of one of the several arguments held on this matter a doctrine applied in Missouri, apparently in workers' compensation cases, which obviated the need for expert testimony on the issue of causation. It is called the sudden onset doctrine and it would apply most readily in physical injury cases caused by a fall or a blow from an object. There is a lay witness exception to the need for expert testimony in these malpractice cases. See Gannon v. Kresge Co., 114 Conn. 36, 37 (1931) (miscarriage), cf. Shegoz v. Zabrecky, 36 Conn. App. 737, 747 (1995), Sapiente v. Waltuch, 127 Conn. 224, 227 (1940), cf. Orthopedic Clinic v. Hanson, 415 P.2d 991 (Okla. 1966) and this doctrine is one variation of it. The case of Williams v. Jacobs, 972 S.W.2d 334, (Mo., 1998), explains the doctrine and why it cannot be applied on the causation issue in a case like the one now before the court.
At page 340 the Williams court said:
a causal connection between an accident and an 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 broken bones . . . immediate continuing back pain . . . or an obvious wound.
The court went on to say "the testimony of a lay witness is sufficient to establish the nature, cause and extent of an injury `when the injury falls 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." Id. (emphasis by this court).
The last mentioned emphasized language makes clear why the doctrine cannot be used here to waive the requirement of expert testimony on causation. The causation problem was so complicated that an answer to it even eluded a highly experienced doctor like the decedent's own treating pulmonologist, Dr. Gerstenhaber. Even if for some reason the sudden onset doctrine were held to apply here, how exactly would it apply. In other words, let us assume from the hospital records or non-medical testimony about the decedent's deteriorating condition that pulmonary problems could be laid at the door step of the transfusion without expert testimony how could a lay jury go beyond that to conclude that the underlying and antecedent pulmonary fibrosis would not have brought the patient to the same circumstances shortly after the operation even apart from the transfusion problem? In any event the court cannot rely on this Missouri doctrine created to expedite the workers' compensation hearings to find that as to this complicated medical causation question, medical testimony is not needed.
Corradino, J.