Friedman v. Meriden Orthopaedic Group, P.C.

861 A.2d 500, 272 Conn. 57, 2004 Conn. LEXIS 523
CourtSupreme Court of Connecticut
DecidedDecember 14, 2004
DocketSC 17047
StatusPublished
Cited by8 cases

This text of 861 A.2d 500 (Friedman v. Meriden Orthopaedic Group, P.C.) is published on Counsel Stack Legal Research, covering Supreme Court of Connecticut primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Friedman v. Meriden Orthopaedic Group, P.C., 861 A.2d 500, 272 Conn. 57, 2004 Conn. LEXIS 523 (Colo. 2004).

Opinion

Opinion

BORDEN, J.

The dispositive issue in this certified appeal is whether the trial court, pursuant to General Statutes § 52-184c (d) (2),1 properly precluded certain [59]*59portions of the testimony of the plaintiffs expert regarding the prevailing professional standard of care in this medical malpractice action. The plaintiff, James Friedman, appeals, following our grant of certification,2 from the judgment of the Appellate Court affirming the trial court’s judgment, rendered after a jury trial, in favor of the defendants, Meriden Orthopaedic Group, P.C., and Paul Zimmering.3 The plaintiff claims that the Appellate Court improperly concluded that he had failed to establish an adequate foundation to admit certain portions [60]*60of a board certified radiologist’s deposition testimony that related to the standard of care applicable to an orthopedic surgeon. We affirm the judgment of the Appellate Court.

The plaintiff brought this medical malpractice action against the defendants for injuries that he allegedly had suffered during an operation to remove a herniated disc from his lower back. After a trial to the jury, a verdict was returned in favor of the defendants. The trial court denied the plaintiffs motion to set aside the verdict and rendered judgment for the defendants. The Appellate Court affirmed the judgment of the trial court. Friedman v. Meriden Orthopaedic Group, P.C., 77 Conn. App. 307, 319, 823 A.2d 364 (2003). This certified appeal followed.

The record reveals the following facts and procedural history relevant to this appeal. The plaintiff consulted Zimmering, a board certified orthopedic surgeon, on October 29, 1992, because the plaintiff was suffering from a condition that Zimmering subsequently diagnosed as sciatica. During the consultation, Zimmering performed a physical examination of the plaintiff, had a technician take x-rays of the plaintiffs back and ordered a magnetic resonance imaging (MRI) scan to be taken at the hospital. Zimmering reviewed the X rays himself, without consulting a radiologist, and noted no abnormalities. A subsequent review of the MRI scan by a radiologist revealed, however, that the plaintiff had a herniated disc.

During surgery to remove the herniated disc, Zimmering discovered that the plaintiff had spina bifida occulta (spina bifida), a congenital anomaly of the sacral spine that resulted in a fifteen millimeter gap in the bony lamina protecting the plaintiffs spinal cord. Concomitant with his discovery of the spina bifida, Zimmering inadvertently cauterized a nerve root exposed by the [61]*61spina bifida with an electrocautery being used to stop the plaintiffs bleeding. Following the surgery, the plaintiff experienced numbness in his genital and anal regions, which are symptoms of cauda equina syndrome, resulting in permanent bowel, bladder and sexual dysfunction.

The plaintiffs theory of the case was that the failure to diagnose the spina bifida prior to the operation had led Zimmering to cauterize the exposed nerve root, resulting in the plaintiffs cauda equina syndrome. This theory was premised on the plaintiffs claim that Zimmering had deviated from the applicable standard of care in failing to diagnose the spina bifida from the X rays prior to the operation.

The trial began on January 9, 2001. To support his claim that Zimmering had deviated from the applicable standard of care in failing to detect the spina bifida from the X rays prior to the operation, the plaintiff sought to introduce the testimony of Barry Pressman, a board certified radiologist with a certificate in neuroradiology, to that effect. Because Pressman, who was a California resident, was not available to testily at trial, his videotaped deposition was taken during the trial, on January 25, 2001. During the deposition, the defendants objected, without stating the basis for the objections, to several of the plaintiffs questions to Pressman concerning his opinion of whether the spina bifida would have been visible on the X rays taken by the defendants.4

During the trial, on February 9, 2001, the parties argued the defendants’ objections before the trial court following its review of Pressman’s deposition testi[62]*62mony.5 The basis of the defendants’ objections was that there was no foundation laid in Pressman’s deposition testimony that the standard of care applicable to an orthopedic surgeon like Zimmering was the same as that applicable to a neuroradiologist like Pressman and, therefore, Pressman’s testimony regarding the standard [63]*63of care applicable to Zimmering was inadmissible. The trial court sustained the defendants’ objections, pursuant to § 52-184c, because the plaintiff had “not properly laid [a foundation] for whether this neuroradiologist [could] testily as to the standard of care that an orthopedist reading an X ray would have exercised in regard to these questions.”

The plaintiff twice attempted to cure the foundational deficiency. On February 13, 2001, the plaintiff sought to establish the necessaiy foundation by recalling Zimmering to the stand to question whether he was aware of any difference between the standard of care applicable to a radiologist and the standard of care applicable to an orthopedic surgeon for the purpose of reading X rays. After Zimmering’s testimony, the trial court ruled that the portion of Pressman’s testimony regarding the applicable standard of care would remain excluded under § 52-184c because Zimmering could not testify as to whether Pressman had given his opinion based on the standard of care applicable to a neuroradiologist or the standard of care applicable to an orthopedic surgeon. The plaintiff then requested permission to establish the necessaiy foundation by conducting a telephonic deposition with Pressman that evening. The trial court denied the plaintiffs request because closing arguments were scheduled for the next day and Pressman could not be available for such a deposition until 9 p.m. or 10 p.m. eastern time.

The plaintiff claims that the trial court’s preclusion of certain portions of Pressman’s testimony was improper because the similarity between the activities that Pressman and Zimmering performed when reading X rays, along with the fact that Pressman knew that Zimmering was an orthopedic surgeon when he offered the testimony, laid a sufficient foundation to find that Press[64]*64man’s testimony established the standard of care applicable to an orthopedic surgeon reading X rays.6 The defendants counter that the preclusion was proper [65]*65because the plaintiff failed to develop a sufficient foundation to find that Pressman’s testimony established the applicable standard of care. We agree with the defendants.

We begin with a review of the statute. “Section 52-184c addresses the standard of care and the qualifications of testifying experts in medical malpractice actions. [The statute] sets forth four distinct, yet closely intertwined, subsections. Section 52-184c (a) requires the plaintiff to prove, by a preponderance of the evidence, that the defendant breached the prevailing professional standard of care for that health care provider. . . .

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Cite This Page — Counsel Stack

Bluebook (online)
861 A.2d 500, 272 Conn. 57, 2004 Conn. LEXIS 523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/friedman-v-meriden-orthopaedic-group-pc-conn-2004.