38 Conn. App. 726 | Conn. App. Ct. | 1995
The plaintiff appeals in this medical malpractice action from the judgment for the defendant, Martin Schiff, Jr.,
The facts pertinent to this appeal that are not disputed are as follows. On July 8, 1986, the defendant, a surgeon, operated on the plaintiff and removed three kidney stones and left five kidney stones. The plaintiff brought this medical malpractice action against the defendant and made the following claims of negligence in paragraph 11 (f) of his complaint: The defendant was careless and negligent in his treatment of the plaintiff in one or more of the following respects: (1) in removing only three of the eight identified pelvic stones; (2) in failing to employ sophisticated new and available techniques to secure the remaining stones; (3) in failing to repair fully the uretopelvic junction; and (4) in failing to inform the plaintiff that he did not secure and remove all of the stones.
The third of those claims was withdrawn prior to trial, and the trial court instructed the jury not to consider the fourth. As to the remaining claims of malpractice, the jury found for the defendant. The plaintiff and the defendant agreed that there was conflicting testimony, by the plaintiff that he was not informed, and by the defendant that he did inform the plaintiff, that all of the kidney stones were not removed. The plaintiff and the defendant agreed that each of their experts testified that it would have been malpractice and a violation of the appropriate standard of care for the
The plaintiffs sole issue briefed on appeal is that the court directed the jury not to consider the allegation of failure to inform because the court found that there was insufficient evidence of an injury, i.e., emotional distress. The defendant on the other hand claims that one of the reasons that the trial judge directed the jury not to consider the allegation of failure to inform was that the court found that there was no evidence of proximate cause between the alleged negligence of failure to inform and the alleged injury of distress. The trial court said, “I don’t see in the record the evidence of injury that flowed from a failure to tell of the stones.”
The plaintiff in his brief has failed to comply with the requirements of Practice Book § 4065 (c),
Even with the sparse record, we will do a limited review based on the reason the trial judge gave for
Our Supreme Court has interpreted the word “flow” to mean proximate cause on numerous occasions. Fair v. People’s Savings Bank, 207 Conn. 535, 545, 542 A.2d 1118 (1988); Aspiazu v. Orgera, 205 Conn. 623, 630, 535 A.2d 338 (1987); Kilduff v. Kalinowski, 136 Conn. 405, 408, 71 A.2d 593 (1950); Stulginski v. Waterbury Rolling Mills Co., 124 Conn. 355, 361, 199 A. 653 (1938). A common sense interpretation of the trial court’s remarks draws us to the conclusion that its use of the word flow means proximate cause. The trial court stated, “Okay. So then the only question seems to me, the real questions in terms of dealing with it is whether or not paragraph 11D in failing to inform the plaintiff that he did not secure or remove all the stones gets charged out as an allegation of negligence on the basis of whether or not there has been any proof of any injury which flows from that negligence, assuming even if it was negligence because negligence alone doesn’t go to the jury; you have to have negligence plus injury to get to the jury.” (Emphasis added.)
This case is similar to the medical malpractice case of LaBieniec v. Baker, 11 Conn. App. 199, 205, 526 A.2d 1341 (1987), where we upheld a directed verdict for the defendants on a claim of emotional distress because the plaintiff failed to submit sufficient evidence of proximate cause. In LaBieniec, the plaintiff argued that a delay in the diagnosis of cancer caused him to suffer emotional distress. We found, however, that the “only evidence that the delay and not the cancer was the cause of the emotional distress was testimony by the plaintiff.” (Emphasis in original.) Id. We further stated: “A claim of physical suffering can go to the jury only if the plaintiff produces sufficient evidence of the suffering and that the malpractice, within reasonable medical probability, was more likely than not the cause
In Shegog v. Zabrecky, 36 Conn. App. 737, 746-47, 654 A.2d 771 (1995), we set out three exceptions to the general rule with regard to expert medical opinion evidence on causation in a medical malpractice case. “An exception to the general rule with regard to expert medical opinion evidence is when the medical condition is obvious or common in everyday life. State v. Orsini, 155 Conn. 367, 372, 232 A.2d 907 (1967); see also Parker v. Supermarkets General Corp., 36 Conn. App. 647, 652 A.2d 1047 (1995). 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. Gannon v. Kresge Co., 114 Conn. 36, 38, 157 A. 541 (1931). 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. Puro v. Henry, 188 Conn. 301, 305, 449 A.2d 176 (1982); Slimak v. Foster, 106 Conn. 366, 370, 138 A. 153 (1927).” Id., 746-47.
The plaintiff has not provided this court with a record of any evidence of proximate cause on this issue to contradict the trial court’s ruling. It is the duty of
The plaintiff has failed to carry his burden of proof of causation.
The judgment is affirmed.
In this opinion the other judges concurred.
The case was withdrawn as to the defendant Yale-New Haven Hospital prior to trial. In this opinion, we refer to Schiff as the defendant.
Subsection (c) of Practice Book § 4065 provides: “A statement of the nature of the proceedings and of the facts of the case. The statement of facts shall be in narrative form, and shall be supported by appropriate references to the page or pages of the transcript or to the document upon which the party relies. The statement of facts should not be detailed or voluminous but must be confined strictly to facts bearing upon the questions raised. An appellant may not rely upon any fact unless it is set forth in the statement of facts required by this subsection or is incorporated into the brief of the appellant in accordance with subsection (d) hereof.”