Barnes v. Connecticut Podiatry Group, P.C.Barnes v. Connecticut Podiatry Group, P.C.
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KENNETH BARNES v. CONNECTICUT PODIATRY GROUP, P.C., ET AL.
(AC 39564)
Alvord, Moll and Beach, Js.
Syllabus
The plaintiff K sought to recover damages from the defendants for medical malpractice in connection with the alleged failure of the defendant D, a podiatrist, to rule out the possibility of impaired blood flow to K‘s feet and to refer K to a vascular specialist, resulting, inter alia, in the partial amputations of K‘s feet. K filed an expert witness disclosure identifying G as an expert on the standard of care and causation, and later filed an amended expert witness disclosure. The defendants filed a motion to preclude the amended expert witness disclosure, which the court denied without prejudice, but also ordered, on January 13, 2016, that K was precluded from disclosing additional experts. After the court denied K‘s motion for reargument and reconsideration of that order, K filed a motion to modify the court‘s scheduling order dated January 19, 2016, and filed an expert witness disclosure identifying R as an additional expert. The court sustained the defendants’ objections thereto and granted their motion to preclude R‘s testimony, stating that it was adhering to its January 13, 2016 order. The court subsequently precluded G from offering expert testimony and rendered summary judgment in favor of the defendants, from which K appealed to this court. Thereafter, S, the administratrix of K‘s estate, was substituted as the plaintiff. Held:
- The trial court did not err in ordering that K could not disclose additional experts:
- S could not prevail on her claim that the trial court‘s January 13, 2016 order constituted a sanction of preclusion subject to the applicable rule of practice (
§ 13-4 [h] ), which establishes procedures for the disclosures and depositions of experts in civil matters: the order was a case management decision that the court had the inherent authority to enter, as the court had expressed concern during argument on January 13, 2016, concerning a representation made by K‘s counsel that he might seek to disclose additional experts, because at that time, the trial in this action, which had been pending since 2012, was scheduled to begin on January 19, 2016, and nothing in the record indicated that the court entered the order as a result of a violation by K of any of the provisions of§ 13-4 ; moreover, notwithstanding that the defendants did not request such an order and that S claimed that good cause existed to allow K to disclose additional experts, it was within the court‘s broad discretion, exercised pursuant to its authority to manage its docket, to preclude K from disclosing additional experts, particularly where the parties were on the eve of trial, which had been rescheduled, and where the date by which K had to disclose his experts had passed. - The trial court did not err in adhering to the January 13, 2016 order; that court determined that it would not hear reargument on the January 13, 2016 order because a different judge had entered the order and had subsequently denied K‘s motion for reargument and for reconsideration, there was no basis for S‘s contention that the court improperly relied on the law of the case doctrine, and S did not present any other cognizable argument challenging the court‘s decision.
- S could not prevail on her claim that the trial court‘s January 13, 2016 order constituted a sanction of preclusion subject to the applicable rule of practice (
- The trial court did not err in precluding G from offering expert opinions as to the standard of care and causation: that court reasonably determined that there was an inadequate factual basis to conclude that G knew the prevailing professional standard of care applicable to D in Connecticut in 2011, when the defendants’ alleged professional negligence occurred, because G‘s knowledge of that standard of care was scant and there was no foundation for G to aver that the podiatric standard of care in Connecticut was the same as the standard of care in Pennsylvania, where G was licensed and had practiced exclusively; moreover, G averred that he did not know whether the partial amputations of K‘s feet could have been avoided but for the defendants’ alleged breach of the standard of care, and S did not cite any part of the record that would have undermined the court‘s determination that G could not testify that the defendants’ breach of the standard of care led to K‘s injuries.
- S could not prevail on her claim that the trial court erred in rendering summary judgment in favor of the defendants; that court properly precluded K from disclosing additional experts and G from offering standard of care and causation opinions, and, as a result, K was unable to produce expert testimony establishing the applicable standard of care, a breach of that standard and causation, and he, therefore, could not establish a prima facie case of medical malpractice.
Argued October 8, 2019—officially released January 14, 2020
Procedural History
Action seeking damages for the defendants’ medical malpractice, brought to the Superior Court in the judicial district of New Haven, where the court, A. Robinson, J., precluded certain expert testimony; thereafter, the court, Lager, J., granted the motion for summary judgment filed by the defendants and rendered judgment thereon, from which the named plaintiff appealed to this court; subsequently, this court granted the motion to substitute Sherry West Barnes, the administratrix of the estate of the named plaintiff, as the plaintiff. Affirmed.
Joseph R. Mirrione, for the appellant (substitute plaintiff).
Ellen M. Costello, for the appellees (defendants).
Opinion
The following facts and procedural history are relevant to our resolution of this appeal. On February 29, 2012, Barnes commenced this medical malpractice action against the defendants. In a revised two count complaint filed on April 17, 2012, Barnes alleged that, while he was a patient of the defendants in 2011, the defendants deviated from the applicable standard of podiatric care by failing to suspect and rule out the possibility of an impairment in the blood flow to Barnes’ feet and by failing to refer Barnes to a vascular specialist, resulting, inter alia, in the partial amputations of Barnes’ feet. On April 26, 2012, the defendants answered the revised complaint, denying the material allegations therein.
On May 3, 2012, Barnes filed an expert witness disclosure identifying Jack B. Gorman, a podiatrist practicing in Pennsylvania, as his expert on the standard of care and causation. The disclosure indicated that Dr. Gorman was expected to testify that the defendants deviated from the applicable standard of care by failing to suspect and rule out the possibility of “vascular compromise” and make an appropriate and timely referral to a vascular specialist. In addition, per the disclosure, Dr. Gorman was expected to testify that the defendants’ deviation from the applicable standard of care resulted in the partial amputations of Barnes’ feet.
On March 12, 2014, the defendants filed a motion to preclude the expert testimony of Dr. Gorman on the basis that, despite their multiple attempts to depose him, Dr. Gorman refused to attend a deposition without a prepayment of his fees. On April 7, 2014, Judge Robinson issued an order declining to preclude Dr. Gorman‘s expert testimony, but requiring the parties to select a date, no later than May 14, 2014, on which to conduct Dr. Gorman‘s deposition, for which the defendants were not required to remit a prepayment. Notwithstanding the court‘s order, Dr. Gorman was not deposed on or before May 14, 2014.
On September 12, 2014, three days before the start of trial, Terence S. Hawkins, Barnes’ prior counsel, filed a motion for a continuance of the trial, representing that Hawkins was scheduled to undergo an emergency medical procedure on September 15, 2014. The same day, Judge Robinson granted the motion and scheduled a status conference for October 15, 2014. On October 14, 2014, Hawkins filed a motion for a continuance of the status conference, representing that he was closing his legal practice on October 31, 2014.2 The same day, Judge Robinson granted the motion and ordered the parties’ counsel to select a new date for the status conference. Subsequently, Judge Robinson issued a separate order requiring an appearance to be filed on behalf of Barnes no later than November 21, 2014, or else the case would be dismissed. On November 17, 2014, Attorney Joseph R. Mirrione appeared on behalf of Barnes. On November 18, 2014, JDNO notices were issued providing, respectively, that a trial management conference was scheduled for December 22, 2015, and that the trial was rescheduled to January 19, 2016.
On September 25, 2015, Barnes filed a motion for a continuance of the trial on the ground that Attorney Mirrione was “relatively new counsel” who had taken over Barnes’ case from Hawkins. The same day, Judge Robinson denied the motion for a continuance without prejudice to the motion being renewed at the trial management conference. Notably, Judge Robinson also stated that, if a continuance were granted at that time, it would be marked final and no additional continuances would be permitted.
On November 13, 2015, Barnes filed an amended expert witness disclosure with respect to Dr. Gorman. The amended expert witness disclosure indicated that Dr. Gorman was expected to testify that (1) “the history and physical were inadequate,” (2) upon noting “gangrenous changes,” the defendants failed to “take an adequate history and physical and did not order antibiotics or other appropriate tests,” (3) the defendants failed to refer Barnes to a vascular surgeon in a timely manner, (4) the defendants failed to communicate with Barnes’ family doctor and vascular surgeon, (5) the defendants allowed Barnes’ condition to deteriorate, and (6) Barnes underwent multiple surgeries
On November 24, 2015, the defendants filed a motion to preclude the amendment to Dr. Gorman‘s expert witness disclosure, to which Barnes objected. On January 13, 2016, after hearing argument on January 11, 2016,3 Judge Robinson issued an order denying, without prejudice, the motion to preclude. Judge Robinson determined that Barnes should be allowed to supplement Dr. Gorman‘s testimony, provided that Dr. Gorman be made available for a deposition within fourteen days of the order. Additionally, Judge Robinson ordered that Barnes was “precluded from disclosing any additional experts.” Judge Robinson then assigned the case to Judge Lager for the management of any pending and future pretrial motions, as well as for trial, and directed the parties to report to Judge Lager to address the scheduling of trial. On January 19, 2016, following a status and scheduling conference, Judge Lager issued a scheduling order, inter alia, rescheduling the trial date to August 15, 2016. The January 19, 2016 scheduling order did not provide for the additional disclosure of experts by Barnes.
On January 19, 2016, Barnes filed a motion for reargument and reconsideration of the portions of Judge Robinson‘s January 13, 2016 order precluding him from disclosing any additional experts and requiring Dr. Gorman‘s deposition to be conducted within fourteen days of the order. The defendants filed an objection to that motion later on the same day.
On January 29, 2016, Dr. Gorman was deposed. On February 18, 2016, upon the filing of a request to amend and without objection from the defendants, Barnes’ amended revised two count complaint was deemed filed. Therein, Barnes alleged that the defendants deviated from the applicable standard of podiatric care, causing, inter alia, the partial amputations of Barnes’ feet, on the grounds that (1) the defendants failed to suspect and rule out the possibility of an impairment in the blood flow to Barnes’ feet, (2) they failed to refer Barnes to a vascular specialist, (3) “the history and physical were inadequate,” (4) upon noting “gangrenous changes,” they failed to “take an adequate history and physical and [to] order antibiotics or other appropriate tests,” (5) they failed to communicate with Barnes’ treating kidney doctor and vascular surgeon, and (6) they allowed Barnes’ condition to deteriorate. The defendants subsequently answered the amended revised complaint, denying the material allegations therein.4
On February 29, 2016, Barnes filed a motion to modify the January 19, 2016 scheduling order, wherein he, inter alia, sought permission to disclose an additional expert, to which the defendants objected. On March 4, 2016, following argument, Judge Lager issued a modified scheduling order, inter alia, amending the dates by which certain witnesses had to be deposed. The modified scheduling order did not contain any provision for the disclosure of additional experts by Barnes.
On March 9, 2016, notwithstanding the portion of Judge Robinson‘s January 13, 2016 order precluding Barnes from disclosing additional experts (January 13, 2016 order), Barnes filed an expert witness disclosure identifying Rakesh Shah, a cardiologist,
On March 17, 2016, Barnes filed a request for argument regarding his motion for reargument and reconsideration of the January 13, 2016 order, and he reclaimed the motion to the short calendar of March 21, 2016. On March 24, 2016, Judge Robinson summarily denied both the request for argument and the motion for reargument and reconsideration. On May 12, 2016, following argument, Judge Lager sustained the defendants’ objection to Barnes’ expert witness disclosure of Dr. Shah and granted the defendants’ motion to preclude Dr. Shah‘s expert testimony, stating that she was adhering to the January 13, 2016 order and noting that Judge Robinson had declined to reconsider that order.
Following Dr. Gorman‘s deposition on January 29, 2016, the defendants filed several motions in limine seeking to preclude the expert testimony of Dr. Gorman as to the standard of care and causation. Barnes objected to these motions. On July 26, 2016, after hearing argument on July 15, 2016, Judge Lager issued a memorandum of decision addressing the defendants’ claims regarding the preclusion of Dr. Gorman‘s expert opinions.6 With respect to Dr. Gorman‘s standard of care opinion, Judge Lager concluded that, although Dr. Gorman satisfied the minimum qualification requirements of
On August 1, 2016, Barnes filed a request to disclose Dr. Shah as a causation expert, to which the defendants filed an objection. On August 2, 2016, Barnes filed a letter with the court stating that he would not produce Dr. Gorman at the scheduled August 3, 2016 hearing in light of Judge Lager‘s decision precluding Dr. Gorman from testifying as to causation. On August 3, 2016, after hearing argument, Judge Lager denied Barnes’ request to disclose Dr. Shah as an expert and sustained
Additionally, on August 1, 2016, the defendants filed a motion for summary judgment, which they supplemented on August 8, 2016, on the ground that Barnes was unable to produce expert testimony as to the standard of care or causation and, thus, could not demonstrate a prima facie case of medical malpractice. Barnes objected to the motion for summary judgment. On August 10, 2016, following argument, Judge Lager granted the defendants’ motion for summary judgment on the record. The following day, Judge Lager issued a memorandum of decision, determining that (1) there was an inadequate factual basis upon which the court could find Dr. Gorman qualified to testify as to the standard of care, (2) as she had previously concluded, Dr. Gorman was precluded from testifying as to causation, and (3) as a result of the court‘s rulings, Barnes lacked the expert opinions necessary to prove the elements of his medical malpractice claims and, therefore, the defendants were entitled to summary judgment. This appeal followed. Additional facts and procedural history will be set forth as necessary.
At the outset, we set forth the legal principles governing medical malpractice actions. “[T]o prevail in a medical malpractice action, the plaintiff must prove (1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury. . . . Generally, expert testimony is required to establish both the standard of care to which the defendant is held and the breach of that standard. . . . Likewise, [e]xpert 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.”7 (Citations omitted; internal quotation marks omitted.) Procaccini v. Lawrence & Memorial Hospital, Inc., 175 Conn. App. 692, 717-18, 168 A.3d 538, cert. denied, 327 Conn. 960, 172 A.3d 801 (2017).
I
The administratrix raises several claims on appeal relating to the January 13, 2016 order. Specifically, the administratrix asserts that (1) the January 13, 2016 order was improper because (a) it constituted a sanction of preclusion governed by
A
We first address the administratrix’ claims that the January 13, 2016 order was improper because (1) it constituted a sanction of preclusion subject to the requirements
The following additional facts and procedural history are relevant to our disposition of these claims. On January 11, 2016, the parties appeared before Judge Robinson to present argument on the defendants’ motion to preclude Barnes’ amendment to Dr. Gorman‘s expert witness disclosure. During argument, Barnes’ counsel represented that he might seek to disclose other experts in addition to Dr. Gorman. Judge Robinson indicated that she was “concerned” by that representation. Barnes’ counsel then reiterated that “there might be another disclosure . . . .” In response, the defendants’ counsel stated that “if we‘re going to start getting into—into more experts, then, I really have a concern. I—I mean, that is really concerning, because this case is supposed to be going to trial next week.”8 Additionally, the defendants’ counsel stated that she “object[ed] . . . to any further disclosures.”
Thereafter, on January 13, 2016, Judge Robinson denied the defendants’ motion to preclude without prejudice, stating in relevant part: “Though the defendant[s] [make] many compelling and persuasive arguments, the court ultimately holds that [Barnes] should be allowed to supplement the opinions of his already disclosed [expert, i.e., Dr. Gorman], provided the expert is made available for [a] deposition within fourteen days of this order. Further, [Barnes] is precluded from disclosing any additional experts.” (Emphasis added.)
1
The administratrix contends that the January 13, 2016 order was improper because it constituted a sanction of preclusion governed by
Resolving this claim requires us to interpret the nature of the January 13, 2016 order. “The construction of an order is a question of law for the court, and the court‘s review is plenary. . . . As a general rule, [orders and] judgments are to be construed in the same fashion as other written instruments. . . . The legal effect of an order must be declared in light of the literal meaning of the language used. The unambiguous terms of [an order], like the terms in a written contract, are to be given their usual and ordinary meaning. . . . [An order] must be construed in light of the situation of the court, what was before it, and the accompanying circumstances.” (Citations omitted; internal quotation marks omitted.) In re Jacklyn H., 162 Conn. App. 811, 830, 131 A.3d 784 (2016).
In response, the defendants argue that the January 13, 2016 order was a case management decision that Judge Robinson had the inherent authority to enter. “[C]ase management authority is an inherent power necessarily vested in trial courts to manage their own affairs in order to achieve the expeditious disposition of cases. . . . The ability of trial judges to manage cases is essential to judicial economy and justice.” (Citation omitted.) Krevis v. Bridgeport, 262 Conn. 813, 819, 817 A.2d 628 (2003). As our Supreme Court has observed, “[i]t is well known that justice delayed is justice denied. In order to fulfill our responsibility of dispensing justice we in the judiciary must adopt an effective system of caseflow management. Caseflow management is based upon the premise that it is the responsibility of the court to establish standards for the processing of cases and also, when necessary, to enforce compliance with such standards. Our judicial system cannot be controlled by the litigants and cases cannot be allowed to drift aimlessly through the system. To reduce delay while still maintaining high quality justice, it is essential that we have judicial involvement in managing cases.” In re Mongillo, 190 Conn. 686, 690-91, 461 A.2d 1387 (1983), overruled in part on other grounds, State v. Salmon, 250 Conn. 147, 154-55, 735 A.2d 333 (1999).
As the defendants correctly posit, the January 13, 2016 order was a case management decision, rather than a sanction of preclusion. During argument on the defendants’ motion to preclude the amendment to Dr. Gorman‘s expert witness disclosure, Judge Robinson expressed concern regarding the representation made by Barnes’ counsel that he might seek to disclose additional experts. At the time of argument and when Judge Robinson entered the January 13, 2016 order, the trial in this action, which had been pending since February, 2012, was scheduled to begin on January 19, 2016. The trial had been rescheduled once before in November, 2014, following Attorney Mirrione‘s appearance on behalf of Barnes. In addition, pursuant to the scheduling order in effect at the time of argument and when the January 13, 2016 order was entered, the deadline by which Barnes had to disclose his experts—September 1, 2013—had long expired. By permitting Barnes to amend the expert witness disclosure of Dr. Gorman and continuing the trial date to accommodate that supplementation, Judge Robinson simultaneously ordered that Barnes could not disclose any additional experts, with the ostensible purpose of preventing any legerdemain. Furthermore, nothing in the record indicates that Judge Robinson entered the January 13, 2016 order as a result of a violation by Barnes of any of the provisions of
2
The administratrix also claims that the January 13, 2016 order was improper because, in seeking to preclude Barnes from amending the expert witness disclosure of Dr. Gorman, the defendants did not request, as relief, that Judge Robinson preclude Barnes from disclosing additional experts. In light of our conclusion in part I A 1 of this opinion that the January 13, 2016 order was a case management decision, we reject this claim. “[T]rial courts have wide latitude to manage cases consistent with judicial economy and justice . . . .” (Internal quotation marks omitted.) Griswold v. Camputaro, 331 Conn. 701, 709, 207 A.3d 512 (2019), quoting Krevis v. Bridgeport, supra, 262 Conn. 818-19. Thus, notwithstanding that the defendants did not request such an action, it was within Judge Robinson‘s broad discretion, exercised pursuant to her inherent authority to manage her docket, to preclude Barnes from disclosing additional experts.11
3
The administratrix next claims that Judge Robinson abused her discretion in entering the January 13, 2016 order because good cause existed to permit Barnes to disclose additional experts. Specifically, the administratrix asserts that, as a result “of the manner in which [Hawkins] conducted this case” before Attorney Mirrione appeared on behalf of Barnes in November, 2014, Attorney Mirrione was initially unaware that he might need to retain other experts and Attorney Mirrione
As we concluded in part I A 1 of this opinion, the January 13, 2016 order constituted a case management decision. “We review case management decisions for abuse of discretion, giving [trial] courts wide latitude. . . . A party adversely affected by a [trial] court‘s case management decision thus bears a formidable burden in seeking reversal. . . . A trial court has the authority to manage cases before it as is necessary. . . . Deference is afforded to the trial court in making case management decisions because it is in a much better position to determine the effect that a particular procedure will have on both parties. . . . The case management authority is an inherent power necessarily vested in trial courts to manage their own affairs in order to achieve the expeditious disposition of cases. . . . The ability of trial judges to manage cases is essential to judicial economy and justice.” (Internal quotation marks omitted.) Levine v. Hite, 189 Conn. App. 281, 296, 207 A.3d 100 (2019).
In the present case, it was well within Judge Robinson‘s wide discretion to preclude Barnes from disclosing additional experts where the parties were on the eve of trial, which had been rescheduled previously, in a case pending since February, 2012, and where the date by which Barnes had to disclose his experts had passed.12 Accordingly, we conclude that Judge Robinson did not abuse her discretion in entering the January 13, 2016 order.13
B
We next turn to the administratrix’ claim that Judge Lager erred in adhering to the January 13, 2016 order. We are not persuaded.
The following additional facts and procedural history are relevant to our resolution of this claim. On January 19, 2016, after Judge Robinson had entered the January 13, 2016 order, Judge Lager issued a scheduling order that did not contain any provision permitting Barnes to disclose additional experts. On that same day, Barnes filed the motion for reargument and reconsideration of the January 13, 2016 order; however, he did not file a caseflow request for immediate consideration of the motion
On March 4, 2016, Judge Lager heard argument on Barnes’ motion to modify the January 19, 2016 scheduling order, wherein Barnes, inter alia, requested permission to disclose an additional expert, and the defendants’ objection thereto. On the record, Judge Lager stated that she was adhering to the January 13, 2016 order, which she described as “a very clear and direct order” precluding Barnes from disclosing additional experts. Judge Lager determined that she would not hear reargument on the January 13, 2016 order because Judge Robinson was the proper judicial authority from whom Barnes had to seek reargument and reconsideration of the order. Judge Lager also stated that she “believe[d] at the moment [that the January 13, 2016 order was] the law of the case.”15 Thereafter, Judge Lager issued a modified scheduling order, which did not contain any provision for the disclosure of additional experts by Barnes.
On May 12, 2016, following Judge Robinson‘s March 24, 2016 denial of Barnes’ motion for reargument and reconsideration of the January 13, 2016 order, the parties presented argument to Judge Lager on the defendants’ combined objection to Barnes’ expert witness disclosure of Dr. Shah and motion to preclude Dr. Shah‘s expert opinion. During argument, Barnes’ counsel argued that, notwithstanding Judge Robinson‘s denial of the motion for reargument and reconsideration, Judge Lager was not bound by the January 13, 2016 order and could examine its propriety. In response, Judge Lager stated that she incorrectly referred to the January 13, 2016 order as the law of the case during the March 4, 2016 proceeding and that she could not revisit the January 13, 2016 order on the basis that it was a “discovery sanction” over which Judge Robinson “had full and complete authority . . . .” In the May 12, 2016 order sustaining the defendants’ objection to Dr. Shah‘s expert witness disclosure and granting the defendants’ motion to preclude Dr. Shah‘s expert opinion, Judge Lager reasoned that she was adhering to the January 13, 2016 order, noting that Judge Robinson had declined to reconsider it.
The administratrix asserts that Judge Lager erred in adhering to the January 13, 2016 order because she improperly construed the January 13, 2016 order as the law of the case. The record reveals, however, that Judge Lager did not rely on the law of the case doctrine16 in
II
We next address the administratrix’ claim that Judge Lager erred in precluding Dr. Gorman from offering expert opinions as to the standard of care and causation. For the reasons that follow, we disagree.
We first set forth the standard of review and legal principles governing our resolution of the administratrix’ claim. “The decision to preclude a party from introducing expert testimony is within the discretion of the trial court. . . . On appeal, that decision is subject only to the test of abuse of discretion.” (Internal quotation marks omitted.) Ruff v. Yale-New Haven Hospital, Inc., 172 Conn. App. 699, 709, 161 A.3d 552 (2017).
“Our standard regarding the admissibility of expert testimony is well settled. Expert testimony should be admitted when: (1) the witness has a special skill or knowledge directly applicable to a matter in issue, (2) that skill or knowledge is not common to the average person, and (3) the testimony would be helpful to the court or jury in considering the issues. . . . In other words, [i]n order to render an expert opinion the witness must be qualified to do so and there must be a factual basis for the opinion.” (Internal quotation marks omitted.) Rockhill v. Danbury Hospital, 176 Conn. App. 39, 61, 168 A.3d 630 (2017); see also
A
We first turn to the administratrix’ claim that Judge Lager improperly precluded Dr. Gorman‘s standard of care opinion. This claim is unavailing.
We begin by setting forth the following legal principles applicable to the disposition of this claim.
Our Supreme Court has explained that the provisions of
The following additional facts and procedural history are relevant to our disposition of the administratrix’ claim. After Dr. Gorman had been deposed on January 29, 2016, the defendants filed several motions in limine requesting, inter alia, that the trial court preclude Dr. Gorman‘s standard of care opinion on the basis that Dr. Gorman was not qualified to testify. On July 15, 2016, Judge Lager heard argument on, inter alia, the issue of whether preclusion of Dr. Gorman‘s standard of care opinion was warranted. Following argument, with Judge Lager‘s permission, Barnes filed an affidavit of Dr. Gorman dated July 18, 2016 (July 18, 2016 affidavit), and the defendants filed an affidavit of their expert, Joseph Treadwell.
On July 26, 2016, in addressing whether preclusion of Dr. Gorman‘s standard of care opinion was warranted, Judge Lager concluded that Dr. Gorman satisfied the “minimum qualification standards for experts in medical malpractice cases” because Dr. Gorman “was actively engaged in the practice of podiatric medicine” at the time of the defendants’ alleged professional negligence in 2011 and, therefore, Dr. Gorman met the requirements of subdivision (d) (2) of
Following a review of Dr. Gorman‘s deposition and the affidavits of Dr. Gorman and Dr. Treadwell, Judge Lager determined that “[Dr.] Gorman‘s knowledge of the standard of care applicable to [Dr.] Daddio in Connecticut is scant.” Judge Lager noted that Dr. Gorman averred in the July 18, 2016 affidavit that, in comparing his board certification to that of [Dr.] Daddio‘s, the “standard of care for treating patients is the same“; (internal quotation marks omitted); however, on the basis of the record before her, Judge Lager determined that “[t]here is no foundation for [Dr.] Gorman‘s statement that the podiatric standard of care in Connecticut is the same as the podiatric standard of care in Pennsylvania where [Dr. Gorman] is licensed and has practiced exclusively.” Judge Lager proceeded to conclude that “[o]n the present record, there is an inadequate factual basis to conclude either that [Dr.] Gorman knows the prevailing professional standard of care applicable to [Dr.] Daddio in Connecticut in 2011 or that his Pennsylvania podiatric practice was governed by the same standard of care. The court is willing to give [Barnes] one final opportunity to establish the requisite foundation by holding a hearing on August 3, 2016 . . . at which Dr. Gorman must appear and be subject to examination and cross-examination on this issue . . . .” As discussed more comprehensively in part II B of this opinion, Judge Lager proceeded to rule that Dr. Gorman was precluded from offering expert testimony as to causation.
On August 2, 2016, Barnes filed a letter addressed to Judge Lager and the defendants’ counsel indicating that, in light of Judge Lager‘s preclusion of Dr. Gorman‘s
On August 10, 2016, Judge Lager heard argument on the defendants’ motion for summary judgment, to which Barnes had filed an objection accompanied by an affidavit of Dr. Gorman dated August 8, 2016 (August 8, 2016 affidavit). On August 11, 2016, in her memorandum of decision granting the defendants’ motion for summary judgment, Judge Lager stated in relevant part: “In the ruling dated July 26, 2016 . . . this court focused on the lack of foundational evidence upon which the court could find that ‘[Dr.] Gorman knows the prevailing professional standard of care applicable to [Dr.] Daddio in Connecticut in 2011 or that his Pennsylvania podiatric practice was governed by the same standard of care.’ . . . Although the court was aware that [Dr.] Gorman averred in [the July 18, 2016 affidavit] that the ‘standard of care for treating patients is the same,’ this conclusory statement lacked foundation. In [the August 8, 2016 affidavit], [Dr.] Gorman aver[red] that: ‘The standard of care is the same for all podiatrists. The national standard of care as to what is expected of a reasonable, prudent podiatrist [with respect to] the diagnosis and treatment of a patient under the same circumstance is the same in Connecticut as it is in all other states.’ The foundation for this averral is that podiatry students ‘in the United States are trained in the same manner; [t]he same textbooks and reference materials are used. . . .‘” Judge Lager then concluded that, in light of Dr. Gorman‘s testimony during his deposition that he did not know the standard of care in Connecticut, the “conclusory statements in [the August 8, 2016 affidavit]” failed to provide the “requisite foundation for establishing [Dr.] Gorman‘s knowledge of the prevailing professional standard of care in this case” and “[t]here is an inadequate factual basis before the court to find [Dr.] Gorman qualified to testify as to the standard of care.” For these reasons, Judge Lager, in effect, precluded Dr. Gorman‘s standard of care opinion.
The administratrix asserts that Judge Lager erred in precluding Dr. Gorman‘s standard of care opinion because physicians, including podiatrists such as Dr. Gorman, are governed by a national standard of care in medical malpractice cases. The administratrix also contends that Dr. Gorman was qualified to offer a standard of care opinion on the ground that evidence was produced illustrating, inter alia, that Dr. Gorman had treated thousands of podiatric patients since 1967 and trained residents in the field of podiatry.21 These contentions are unavailing.
B
We next consider the administratrix’ claim that Judge Lager erred in precluding Dr. Gorman‘s causation opinion. We are not persuaded.
“All medical malpractice claims, whether involving acts or inactions of a defendant physician, require that a defendant physician‘s conduct proximately cause the plaintiff‘s injuries. The question is whether the conduct of the defendant was a substantial factor in causing the plaintiff‘s injury. . . . This causal connection must rest upon more than surmise or conjecture. . . . A trier is not concerned with possibilities but with reasonable probabilities. . . . The 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. . . . To be reasonably probable, a conclusion must be more likely than not. . . . Whether an expert‘s testimony is expressed in terms of a reasonable probability that an event has occurred does not depend upon the semantics of the expert or his use of any particular term or phrase, but rather, is determined by looking at the entire substance of the expert‘s testimony. . . . An expert . . . need not use talismanic words to show reasonable probability. . . . There are no precise facts that must be proved before an expert‘s opinion may be received in evidence. . . .”
“In other words, [p]roximate cause [is] defined as an actual cause that is a substantial factor in the resulting harm. . . . [T]he inquiry fundamental to all proximate cause questions . . . [is] whether the harm which occurred was of the same general nature as the foreseeable risk created by the defendant‘s negligence.” (Citations omitted; internal quotation marks omitted.) Ward v. Ramsey, 146 Conn. App. 485, 490-92, 77 A.3d 935, cert. denied, 310 Conn. 965, 83 A.3d 345 (2013).
The following additional facts and procedural history are relevant to our resolution of the administratrix’ claim. Following Dr. Gorman‘s deposition on January 29, 2016, the defendants filed motions in limine seeking, inter alia, to preclude Dr. Gorman‘s expert testimony as to causation on the grounds that Dr. Gorman‘s causation opinions (1) had no factual basis underlying them, (2) exceeded the scope of his expertise, and (3) were speculative. On July 15, 2016, the parties presented argument, inter alia, as to whether Dr. Gorman‘s causation opinion should be precluded. Thereafter, Barnes filed the July 18, 2016 affidavit, and the defendants filed the affidavit of Dr. Treadwell.
On July 26, 2016, Judge Lager ordered that Dr. Gorman was precluded from testifying as to causation. Judge Lager summarized Dr. Gorman‘s causation opinion to be that the cause of the partial amputations of Barnes’ feet was Dr. Daddio‘s failures to suspect that Barnes had “vascular insufficiency” and to refer Barnes to a vascular surgeon. Judge Lager then observed: “While [Dr.] Gorman has treated patients with vascular problems and knows something about vascular insufficiency in diabetic podiatric patients [such as Barnes], he is not a vascular physician or vascular surgeon and does not perform the types of amputations that [Barnes’ vascular surgeon] performed on Barnes. [The] mere fact that he is not a vascular physician or surgeon is not disqualifying. . . . However, in his deposition testimony, [Dr.] Gorman repeatedly deferred to the expertise of a vascular surgeon on the issue of causation. Both his deposition testimony and the [July 18, 2016 affidavit] support the conclusion that, while it is his practice to refer patients such as Barnes to a vascular surgeon in an effort to avoid outcomes such as the one which occurred in this case, [Dr.] Gorman does not have any basis other than speculation to render a causation opinion here. [Dr.] Gorman is unable to pinpoint whether an alleged breach of the standard of care . . . or some other underlying
The administratrix contends that the record demonstrates that Dr. Gorman is a board certified podiatrist with over fifty years of experience in, inter alia, treating podiatric patients, teaching students, and attending lectures, and that Dr. Gorman was able to testify with reasonable medical probability that Barnes’ injuries were caused by an untreated infection that led to additional complications and, ultimately, the partial amputations of Barnes’ feet. As reflected in his deposition and/or in the July 18, 2016 affidavit, however, Dr. Gorman averred that he did not know whether the partial amputations of Barnes’ feet could have been prevented and that a vascular surgeon was needed to opine as to whether the amputations could have been avoided but for the defendants’ alleged breach of the standard of care. The administratrix fails to cite to any portion of the record undermining Judge Lager‘s determination that Dr. Gorman could not testify that the defendants’ alleged breach of the standard of care led to the partial amputations of Barnes’ feet. Accordingly, we cannot conclude that Judge Lager abused her discretion in precluding Dr. Gorman‘s causation opinion.
III
Finally, relying on the presumption that the trial court erred in precluding Barnes from disclosing additional experts and Dr. Gorman‘s expert opinions as to the standard of care and causation, the administratrix claims that there exist genuine issues of material fact and, thus, Judge Lager improperly rendered summary judgment in favor of the defendants. This claim merits little discussion. As set forth in parts I and II of this opinion, the court acted properly in precluding Barnes from disclosing additional experts and Dr. Gorman from offering standard of care and causation opinions. As a result, Barnes was unable to produce expert testimony establishing the applicable standard of care, a breach of the standard of care, and causation, and, therefore, he could not establish a prima facie case of medical malpractice. See Procaccini v. Lawrence & Memorial Hospital, Inc., supra, 175 Conn. App. 717-18; see also Dorreman v. Johnson, 141 Conn. App. 91, 98-99, 60 A.3d 993 (2013) (affirming summary judgment in favor of defendant in medical malpractice case where plaintiffs failed to provide expert opinions with regard to requisite standard of care, deviation from standard of care, and causation). Accordingly, we conclude that Judge Lager properly rendered summary judgment in favor of the defendants.
The judgment is affirmed.
In this opinion the other judges concurred.