11 Conn. App. 518 | Conn. App. Ct. | 1987
In this medical malpractice case, the plaintiff, the administrator of the estate of Robert Scott Kelley, appeals from the judgment rendered for the defendant, Orthopedic Service of Manchester, P.C., after a jury trial.
Certain facts were undisputed. On May 7,1978, the decedent fractured his left ankle in a softball game, and was treated at the hospital by Passaretti, an orthopedic surgeon employed by the defendant. Passaretti applied a short cast to the decedent’s leg. On May 19, 1978, Passaretti examined the decedent at the office of the defendant, and told him to return in four weeks for removal of the cast. On May 23, 1978, the decedent’s father called Passaretti, and reported that the decedent was having pain in his leg. Passaretti advised that the decedent keep his leg elevated and call back if the pain persisted. On June 1,1978, the decedent died as a result of massive pulmonary emboli.
The critical disputed facts concerned whether the decedent made two additional telephone calls to the defendant’s office between May 19,1978, and June 1, 1978. The plaintiff introduced evidence that the decedent made those calls and was told by the defendant’s receptionists to keep his leg elevated, take aspirin and keep his next appointment. The defendant denied receiving any such calls, and denied that any of its employees gave such advice. The plaintiff’s claim of liability against the defendant was that the failure of the defendant properly to respond to those telephone calls was a breach of the applicable standard of care and resulted in the death of the decedent. Specifically, the plaintiff’s expert testified that, if the calls were made the defendant should have told the decedent to come in for an examination, and that such an examination would have timely revealed the presence of thrombophlebitis. Thus, the plaintiff’s case depended on
The jury returned a verdict for the defendant. The court denied the plaintiff’s motion to set aside the verdict. This appeal followed.
I
The plaintiff first claims that the trial court erred by charging the jury that its consideration of the plaintiff’s claim of negligence was limited to certain employees of the defendant. We disagree.
This claim arises out of the following procedural context. The plaintiff’s original complaint, filed in 1979, was against both Passaretti and his employer, the defendant. The plaintiff’s allegation of negligence relevant here was that Passaretti failed to respond properly to the decedent’s complaints. In depositions, Passaretti and Lilia Barbero, the defendant’s office manager, named only two receptionists who were working at the office during the period in question, namely, Doris Stoltenberg and Marilyn Stavnitsky.
On the day of trial, January 16, 1985, the plaintiff sought to amend his complaint to allege that the death of the decedent was caused by the negligence of Passaretti “or persons under his direct supervision and control,” and by the negligence of the defendant “and its agents, servants and employees,” in failing, inter alia, to respond properly to the decedent’s complaints. The court permitted the amendment over the defendants’ objection. In response to the defendants’ request for specification by the plaintiff of the names of the employees of the defendant whom the plaintiff claimed were negligent, however, the court permitted the defendants to pose oral interrogatories in court to the
At the conclusion of the plaintiff’s case, the court granted Passaretti’s motion for a directed verdict in his favor, without opposition by the plaintiff, leaving Orthopedic Service of Manchester, P.C., as the sole remaining defendant. The defendant began its case by stipulating with the plaintiff in the presence of the jury “that interrogatories were filed to the substituted complaint in which the defendant asked who does the plaintiff claim are the person or persons who acted or failed to act in the manner claimed in . . . the plaintiff’s substituted complaint .... And, in answer to that interrogatory, an answer to that interrogatory was filed ... by the plaintiff” naming Gram, Henrys, Ferrari, Thomas, Stavnitsky, Stoltenberg and Barbero. After the plaintiff indicated his agreement to the stipulation, the court stated: “All right. In other words, the jury will consider that as evidence proven in this proceeding. In other words, the stipulation is an agreement of what it purports to say.”
During the course of the defendant’s case, Barbero, Stavnitsky and Stoltenberg testified. Barbero testified that the two receptionists in the office who took telephone calls were Stavnitsky and Stoltenberg, and that if a patient called in, the receptionist would record the call and the patient’s complaint on a message slip which
Stavnitsky testified on the next trial day. She denied ever telling a patient to take aspirin and elevate his leg, she had no recollection of having contact with the decedent in May, 1978, and she testified that a search for telephone message slips regarding the decedent did not yield any such slips. She also testified, however, that an additional receptionist, Rosalie Coffin, was working in May, 1978. The defendant’s counsel stated that Coffin would testify the next day.
The next day, Coffin testified that she worked part-time as a receptionist in May, 1978. She denied ever telling a patient to elevate his leg and take aspirin, or telling a patient who complained of pain to wait until his next appointment. She did not recall any conversation with the decedent in May, 1978.
Stoltenberg testified that she did not recall receiving any calls from the decedent. She denied ever telling a patient to take aspirin and elevate his leg, and she denied ever telling any patient, who called to complain of pain in a casted leg, to keep his next appointment. Stoltenberg also testified, however, that another substitute receptionist in May, 1978, was Lettie Glenn.
Lettie Glenn testified that in May, 1978, she was a substitute receptionist who filled in for Stavnitsky, Stoltenberg and Coffin. She denied ever telling a patient to take aspirin and elevate his leg, or telling a patient who called in with a complaint of pain in a casted leg to keep his next appointment. She had no recollection of the decedent or of having spoken with him.
The court did not charge as requested by the plaintiff. It charged instead that the “plaintiff also has the burden of proving that [the defendant] through its agents, Lilia Barbero, Lynne Stavnitsky and Doris Stoltenberg failed to exercise reasonable care in the discharge of their duties as office manager and receptionists, respectively.” (Emphasis added.) It also specifically called the attention of the jury to the plaintiff’s stipulation “that in answer to an interrogatory . . . which requested . . . ‘Who does the plaintiff claim are the person or persons who acted or failed to act’ ” improperly in responding to the decedent’s telephone calls, the plaintiff named “Dr. Peter Gram, Dr. Paul Henrys . . . Dr. Dudley Ferrari, Dr. Andrew Thomas, Miss Lynne Stavnitsky, Miss Doris Stoltenberg and Miss Lilia Barbero. They are the agents, servants and employees of [the defendant] whose conduct you will consider in reviewing [the plaintiffs] allegations of negligence. ” (Emphasis added.)
The plaintiff argues that the court erred in excluding Coffin and Glenn from consideration by the jury because it treated the stipulation of the parties as a judicial admission, and thus conclusive on the plaintiff, rather than as an evidentiary admission which could be contradicted by other evidence. See General Statutes § 52-200 (responses to discovery requests are not conclusive, but may be contradicted by other testimony); Piantedosi v. Floridia, 186 Conn. 275, 278, 440 A.2d 977 (1982); C. Tait & J. LaPlante, Connecticut Evidence §§ 6.5 through 6.8.
It is true that ordinarily a response to a discovery interrogatory is not a judicial admission, and is not, therefore, conclusive on the party making it. Piantedosi v. Floridia, supra. A judicial admission, however, has a different status. “A party is bound by a judicial admission unless the court, in the exercise of a reasonable discretion, allows the admission to be withdrawn, explained or modified.” Hirsch v. Thrall, 148 Conn. 202, 206-207, 169 A.2d 271 (1961).
Judicial admissions may be expressed in different forms, such as a formal pleading; Piantedosi v. Floridia, supra; C. Tait & J. LaPlante, supra, § 6.7a; or a written stipulation. C. Tait & J. LaPlante, supra, § 6.7c. They may also be expressed informally and may take the form of an admission “ ‘in open court’ ”; Piantedosi v. Floridia, supra; by counsel as to “ ‘the issues in dispute, and the like . . . . ’ ” Pyne v. New Haven, 177 Conn. 456, 464, 418 A.2d 899 (1979). In such
We recognize that the question of whether the action of the plaintiff’s counsel in this case constituted a judicial admission is close. This is because the stipulation entered into by the plaintiff’s counsel in open court, read narrowly and literally, is, on the one hand, subject to an interpretation that it was no more than an in-court repetition of the plaintiff’s response to the defendant’s interrogatory. On the other hand, the Circumstances preceding and surrounding the stipulation lead us to conclude that the court did not err in considering it, instead, as a judicial admission and therefore conclusive on the plaintiff.
First, the stipulation followed and was clearly linked to the plaintiff’s successful but belated amendment of his complaint expanding the individual targets of his claim of negligence. That expansion led directly to the court’s establishment of the unusual oral, in-court discovery process on the first day of trial. The court permitted the plaintiff at the last moment to expand his complaint, required the defendant to defend against the expanded complaint aided by that discovery process, and heard the plaintiff respond that his claims of negligence were aimed at the seven named persons. The court was justified, therefore, in understanding the plaintiff’s in-court stipulation to have the intended purpose of constituting an informal judicial admission which limited the scope of the plaintiff’s claim, much as if he had filed a formal pleading to the same effect. See Pyne v. New Haven, supra; C. Tait & J. LaPlante, supra.
The plaintiff argues that even if the stipulation is considered as a judicial admission, it should not have been conclusive as to him because it concerned matters not within his personal knowledge and was the product of mistaken information. See, e.g., King v. Spencer, 115 Conn. 201, 205, 161 A.2d 103 (1932). He claims that his response to the defendant’s interrogatory upon which the stipulation was based, was dependent on the names of the receptionists supplied to him through the depositions of Passaretti and Barbero.
Nor did the court err in declining to recharge the jury in accordance with the plaintiff’s exception, which did, for the first time, focus on Coffin and Glenn. At that point, not only had all the evidence been produced, but the closing arguments of counsel had been presented, and the jury had been charged in accordance with the judicial admission of the plaintiff. We cannot say that the court abused its discretion in concluding, as it may well have, that the plaintiffs request to modify the judicial admission came too late.
Both Coffin and Glenn denied ever having given any such advice to anyone. The jury could not, even if it disbelieved that denial, infer its opposite. Novak v. Anderson, 178 Conn. 506, 508, 423 A.2d 147 (1979); Milano v. Sayers, 6 Conn. App. 491, 492-95, 506 A.2d 162, cert. denied, 199 Conn. 810, 508 A.2d 771 (1986). Both Coffin and Glenn denied having any recollection of talking with the decedent. Under these circumstances, we cannot conclude that, even if the jury had been permitted to consider Coffin’s and Glenn’s testimony, it is likely that the result would have been different.
II
The plaintiff’s second claim of error requires little discussion. It involves his unsuccessful attempt to introduce into evidence Passaretti’s failure to answer a num
It is not necessary to detail the procedures which followed the deposition, either pretrial or surrounding the plaintiff’s offer at trial.. Suffice it to say that we have fully examined the deposition questions. None of them had any bearing on the plaintiff’s theory of liability against the sole defendant on this appeal, namely, that the decedent made two telephone calls and received improper advice from someone in the employ of the defendant. A directed verdict was entered in favor of Passaretti, without opposition by the plaintiff. Under these circumstances, we agree with the defendant that this claim of the plaintiff is not properly before us on this appeal, and we decline to review it.
There is no error.
In this opinion the other judges concurred.
At the conclusion of the plaintiff’s case, the court, without opposition by the plaintiff, directed a verdict for the named defendant, Michael Passaretti. The judgment rendered upon that directed verdict is not before us on this appeal. We refer herein to Orthopedic Service of Manchester, P.C., as the defendant.
In this connection, we note that the plaintiff did not in the trial court and does not in this court make any claim of bad faith regarding the belated discovery that Coffin and Glenn were also receptionists, that the names should have been disclosed to him earlier, or that he was prejudiced by the timing or process of that discovery and disclosure. The record does not indicate, nor does the plaintiff claim, that the defendants’ counsel knew about Coffin and Glenn when the stipulation was made. We note also that the plaintiff had not deposed either Stavnitsky or Stoltenberg prior to trial. He does not complain about the fact that he did not learn about Coffin and Glenn until the trial testimony of Stavnitsky and Stoltenberg.