*1 Philip Puro et al. Victoria Speziale, J., Parskey, Armentano, C. Sponzo, Shea and Js.
Argued May September 4 decision released *2 M. Sheehy,
Edward for (named the appellant defendant).
Gregory Willis, C. (defendant for appellant Griffin Hospital). P. C.
Michael with whom was Brenda Koshoff, Morrissey, for the appellee (plaintiff). J. This action was brought by plain-
Parskey, tiff Puro to recover damages against Victoria for and Griffin Philip Henry, surgeon, Hospital to defendants medical which the alleged malpractice defense of the statute of interposed special limitations.1 In her amended the plaintiff reply con- the defendants had alleged fraudulently cealed the existence of a surgical plain- At sounded in tiff. the time trial the complaint of contract one each of and breach negligence count and in one count of Henry negligence against After a trial to the jury Griffin against Hospital.2 plaintiff’s injury Statutes 52-584 At the time General § injury person provided as follows: “limitation of action fob property. damages injury person, action recover No OB by personal property, by negligence, or or to real caused reckless or misconduct, by malpractice physician, surgeon, of a or or wanton chiropractor, hospital sanatorium, or shall be dentist, podiatrist, year injury is brought one from the date when the first but within should or in the exercise of reasonable care sustained or discoverеd brought may except that no such action be discovered, and have been years of the aet or omission com from the date more than three may any interposed in such of, except that a counterclaim be plained finally pleadings in such are aetion time before action closed.” sounding in Henry’s to a count Philip demurrer The defendant rendered by court. The court loquitur sustained ipsa res was plead plaintiff failed to this count after the judgment for on over. a verdict for the defendant
the court directed The of contract count. on breach against verdict either defendant. unable to reach a the court the defendant’s denied Thereafter, motions and ordered a new for a directed verdict trial. assignments pred- of error are defendants’ their on denial the trial court of
icated judgment notwithstanding jury’s motions for failure to rеturn a verdict. The defendants claim *3 expert (1) plaintiff produce the failed to testimony that defendant committed medical either (2) plaintiff’s malpractice of the cause and limitations action was the statute of barred produce expert plaintiff because the failed to fraudulently either medical evidence that defendant surgical needle in concealed the existence a plaintiff. find claims to be merit. both without
We should be “Directed verdicts are not favored and reasonably granted only when could legally must and reach other conclusion.... We light review the of the trial court in the action plaintiff.” evidence most favorable (Citations omitted.) 156 Conn. Nickou, Console v. A.2d 895 268, 270, 240 logically and have could following
found the In facts: Philip defendant Victoria consulted the Puro, Henry, general surgeon, prob- abdominal about plaintiff suffering. Henry lems she was sent x-rays Group Radiology which was Derby. Henry’s office located the hall from down Henry gall diagnosed and bladder disease recom- surgery. September
mended on Thereafter, 9,1963, Henry performed cholecystectomy appendec- tomy plaintiff on at the defendant Griffin Hospital Derby (hereinafter located in the hos- pital).
Following discharge plaintiff her remained Henry’s Recurring care. hernias in the area original operation surgery in June, necessitated September, operations 1964 and 1965. These were performed by Henry hospital. Thereafter, at the May plaintiff on 18,1967, was readmitted to the by Henry hospital surgical repair for the of another procedure Henry ventral hernia. In this inserted nylon utilizing catgut, mesh to reinforce the wound nylon sutures. that there wire, conceded surgical plaintiff’s was no needle in the abdomen prior operatiоn. to this
Subsequently, began experience pain particularly severe in her if bent, she abdomen, stretched or twisted. The informed complaints during of these October, her In visits. *4 plaintiff, complaining 1969, of back and abdomi- pain, Henry dispatched nal consulted who her for x-rays Radiology Group pre- to the same had she viously x-ray report prepared visited. The president Carl and of the chairman Radiology long Group Henry time friend of only presence “radiopaque disclosed of sutures [plaintiff’s] upper plain- abdomen.” On the Henry tiff’s informed her that she had an return, enlarged any foreign but womb did mention October, substances in her abdomen. From 1969 to continually complaining of Henry’s pain, abdominal in No remained care. surgery during period. performed further was Thereafter, terminated her relation- ship sought out Edward a Harvey, general practitioner in for treatment Sеymour, her abdominal troubles. sent Harvey the plaintiff to the same Radiology had uti- Group lized. The x-ray dated October report 1972 and prepared by Pantaleo disclosed the presence inear, “[1] needle-like radiopaque foreign body” three measuring centimeters in length the plain- tiff’s abdominal wall. To confirm Harvey this, per- formed an at x-ray his own office and concluded that there was a broken surgical needle in the plaintiff. subsequently informed of this fact.
In January, Stewart Petrie, gynecologist tried practicing Derby to remove unsuccessfully the needle in the course of a hysterectomy. Ulti- mately, Joseph Dineen, Chief at Griffin Surgery Hospital removed surgically from the plaintiff three fragments of what to be a appeared stainless steel needle.
The present action was commenced on May 10, 1974.
The defendants in their assignment of error claim there was an absence of any expert from which the could find negligence on the part the defendants for leaving a needle in the It plaintiff. is well settled that the plaintiff cannot prevail unless there was positive evidence of an expert nature from which the could conclude that the defendant was negligent, except *5 where there is manifest such want gross of care or skill as to afford, an itself, almost conclusive inference of negligence that testimony an is not necessary. Console v. Nickou, supra, expert
306 Snyder
273-74;
v. Pantaleo, 143 Conn.
290, 292,
(1956);
Keegan,
A.2d 21
v.
Ardoline
(1954);
regarding hospital’s procedure for during May, surgical needles used acting operation. admin- Nicewiсz, Frederick hospital, testified that istrator of the regulations hospital rules or did not have counting governing relative to of needles counting surgical procedures. He indicated that the *6 personnel. operating room of needles was left Mary hospital the Rose, The also called supervisor. operating was the Rose circulat- room during plain- ing hospital employed the the nurse operation. the tiff’s 1967 She stated that regarding policy hospital the did have a written not counting surgical a needles instead utilized but whereby procedure the scrub nurse “one one” give surgeon she new needle until to the was it the that was received back. She testified had one actually responsibility watch each scrub nurse’s to being specific and while it used it was needle while surgeon notify operating the inwas room and to Rose further if did back. she not receive neеdle scrub nurse was indicated neither she nor the that missing operation. aware of a needle in the 1967 Henxy Additionally, it the scrub testified that was operat- responsibility to count needles nurse’s ing lay the room and that he would surgical on a below needle holder down towel duty to nurse’s incision and it was scrub disposition it. it retrieve and make some practice Verstandig testified, however, county to was count all in the New Haven area surgery before needles used in abdominal abdomen was closed. agree the defendants that are to unable
We
expert
plaintiff’s
devoid of
evidence
so
a directed verdict.
as to warrant
Con-
light
sidering
most
in a
favorable
evidence
logi-
could
cally
had failed
have concluded
required
skill
under
the due care and
exercise
have also found
could
circumstances.
negligent
Hospital
require
Griffin
in that it failed to
*7
proрerly
needle counts or in that it failed
to execute
procedure
operating
its “one for one”
room.
qualified experts,
The defendants
as
themselves,
provided
clearly
evidence which was
sufficient to
support
supra,
a verdict. Console v. Nickou,
274;
Allen v.
144
Giuliano,
Conn.
Furthermore, evidence, while circumstantial favorably nature, the inferences drawn most logically would and support finding by that the defendants plaintiff had left a needle in the and that this needle plaintiff pain caused the and necessitated further surgery. supra, See Console v. Nickou, 275. assignment
The defendants in their second judgment error assert that their motions for not- withstanding jury’s failure to return a verdict granted should have been because the produce expert failed to medical evidence that fraudulently either defendant concealed the exist- surgical plaintiff. ence of the needle in the findWe this claim to be without merit. provides § “[i]f
General Statutes
52-595
that
person,
fraudulently
liable to an action
another,
conceals from him the existence of the cause of such
such
action,
cause of action shall
to
be deemed
against
person
accrue
such
so liable therefor at the
person
time when the
entitled to sue thereon first
pre
discovers its existence.” Fraud is not to be
strictly proven.
but must be
sumed,
The evidence
precise,
unequivocal.
must be
Alaimo v.
clear,
Royer,
(1982);
188
448
Conn.
A.2d
36,
Lewis v.
(1972);
“The true test as offered is ‘whether the witnesses knowledge experience, any peculiar experts or have their renders the which world, not common to knowledge experience opinions оr such founded on determining or the to the court aid ” Shilepsky, questions 169 v. at issue.’ Schomer Taylor (1975), quoting A.2d 128 363 186, 191, Conn. (1875). the issues 44 Here 36, 43 Conn. Monroe, v. knowledge of had actual defendants of whether the whether and of the capable knowledge were concealed defendants knowledge ordinary and within of resolution requiring jurors. rule experiences “The of question only testimony applies expert when ordinary beyond goes field of involved 3 instruс approving the as to be construed Today’s opinion is not continuing matter. The issue by in this given trial court tions Reming Handler v. See properly raised before us. tort has been Henry, 32 Puro v. (1957); Arms, 316, A.2d 793 Conn. 130 ton 144 (1975). A.2d 65 Sup. 118, 342 Conn.
310 knowledge jurors.” experience judges or Synagogue, Bader v. 148 United Orthodox Conn. 192 A.2d 449, 454, 172 general presumed,
“The
rule that fraud is not
but
proved by
alleges
party
must be
who
does
it,
proved
not mean that it
than
cannot be otherwise
by
positive
direct and
circumstantial
evidence;
may
evidence
be sufficient.”
Am.
Fraud
2d,
Jur.
p.
§
Nickou,
and Deceit
v.
599. See Console
439,
“
supra, 275, wherein we stated:
‘The test of the
sufficiency
proof
is
circumstantial evidence
logic
whether rational minds could
ally
N.H.
York,
draw the inference. Andrea v. New
H. R.
A.2d 642
Co.,
[1957];
&
340, 344, 131
606,
v.
A.2d
Albanese,
256, 129
Pierce
Conn. 241,
appeal
L. Ed.
355 U.S.
78 S. Ct.
dismissed,
15,
36,
proof
[1957].
2d
need not be so conclusive
every
precludes
hypothesis.
that it
It is suf
other
produces
proоf
ficient if
mind
trier
of the
probable
than
reasonable belief that
it is more
is true.
otherwise that
the fact
to be inferred
Hennessey
Hennessey, [145
Conn.
*9
(1958)];
supra; Dick
A.2d 473
Pierce Albanese,
v.
University,
son v.
141
105 A.2d
Yale
Conn. 250, 253,
Cayer
150
and cases cited.’
v.
[1954],
Salvatore,
[1963].”
Conn.
A.2d 505
361, 364, 189
proven
Each inferential fact
not be
need
quantum proof required
of
to find the ultimate fact.
jury
reasonably
the con-
If the
could
have reached
they
that
of the facts
clusion
the cumulative effect
proven
found
established the fraudulent conceal-
Hayes,
ment that
v.
would be sufficient. Cf. State
(1941);
127 Conn.
There was also from which the could logically have inferred that Henry acquired the defendant knowledge actual plaintiff’s body the needle in the at the time of the x-rays. x-rays x-ray October, These and the report prepared by were Radiology Group president which Pantaleo is the and chairman. Henry’s a close friend of who at one time 4If our rolo was to determine whether Philip Henry or Griffin Hospital had knowledge actual presence of the of in needle plaintiff’s abdomen then Justice dissenting Shea’s observations in his opinion pertinent. would be us, issue however, before tois determine whether there was sufficient evidence from which the could find knowledge actual and for purpose necessary it is not conjure up to dagger a cloak and possible scenario. It is inadvertently left рlaintiff’s a needle during surgery abdomen and inadvertently failed to there, notice it that Carl Pantaleo inadvertently failed to x-ray observe on the 1969 what was obvious virtually him on duplicate x-ray inadvertently in 1972, and failed to advise about 1969, although the needle in he made point it a Harvey to advise Edward about it in that the scrub nurse inadvertently plaintiff’s failed observe a cavity abdominal and inadvertently overlooked the fact she gave Henry a receiving needle without one in return and inadvert ently failed to notice at surgical procedure the end of the that she *10 was one short, but common sense tells inadvert us that when ence is widespread may the answer lie elsewhere. with, offices
OCCUpiedadjoining it testified that him, was his as a responsibility radiologist make doctor aware abnormalities in x-rays it that he made to advise the point referring thgl doctor of He any abnormalities. also conceded it was that possible may he have had dis- verbal cussions with in addition to Henry the written Pantaleo testified that report. October, 1972 taken while the x-rays was in the care of Harvey revealed a in foreign object her abdomen and that Harvey was informed of fact.
Thereafter Pantaleo testified that x-rays in 1969 and 1972 disclosed the same abnormality. the basis of this
On taken in a testimony light most favorable to the could havе inferred that Pantaleo has orally informed defendant of the needle in 1969. October, Evidence of a an inference regular practice permits was followed on a occasion. practice given 195. McCormick, (2d Evidence Pantaleo’s Ed.) § his and his respecting responsibility regular as a refer practice radiologist advising doctors of ring abnormalities an infer permitted ence that the practice followеd in this instance. The fact abnormality question may have been disclosed in did not the written report preclude the from inferring accordance he himself practice which of it in regarded as advised very important, some other fashion. sufficient
The evidence was warrant the sub- of the case to the jury, mission the trial court *11 denying for the motions in defendants’ was correct notwithstanding jury’s judgment the failure return a verdict.
There is no error. opinion and In this J.,C. Armeettaeto Speziale, concurred. Js., Spoetzo, disagree (dissenting). I con- J. Shea, by majority there was
clusion reached support infer- a reasonable sufficient evidence to opinion, defendants as “that both stated ence, plaintiff’s knowledge actual had operation body May time from the fraudulently they this and that had concealed knowledge.” only upon this relied for evidence proposition рarticipation defendant of the is employed defendant and of nurses operation hospital which left the of both in her The scenario with needle abdomen. realizing at time of doctor and the nurses body plaintiff’s operation was in the that a needle pres- choosing its and to leave it there and conceal wholly profes- impossible. is not The medical ence of villains. like has its share sion, other, experienсe, inad- tells us however, Common might negligence, is vertence, which well constitute likely explanation more unfortunate far occurrence. firmly law establishes
“Connecticut ease exacting proved by must fraud be a standard more ” preponderance ‘a fair evidence.’ than of the Royer, A.2d Alaimo incongruous approv It is that so soon after satisfactory” ing such as formulations “clear precise unequivocal” or “clear, as tests of the Royer, evidence for claims of fraud; Alaimo v. supra; pay merely lip we them service. Where nothing clearly there is in the evidence which makes *12 knowledge wrong part actual of the on of the tortfeasor a more reasonable inference to be drawn any preclude than this standard other, would finding of fraudulent do concealment. I not see how the in evidence this case can be sаid to meet simple negligence standing this test when it leaves perfectly probable as a reasonable far more explanation upon. of the misconduct relied only
I am concerned about case, this which I concede is a “hard” but also one, about the rami- majority opinion rendering fications of the in protection by afforded the statute of limitations largely illusory malpractice perhaps in actions аnd virtually every wrong- In such others. case susceptible possible explana- ful conduct is of two (1) (2) tions: it that was inadvertent and it that was intentional at least in the that sense defendant was of his aware error and failed to majority give reveal it. The would com- plete freedom to choose the second with- alternative out indication from the evidence that the case presented villainy a rare occasion of rаther than negligence. a common instance of This to deference virtually any professional exposed the trier leaves permanently to a claim that he had actual knowl- edge of his misconduct it when occurred that, by failing guilty to disclose he is fraudulent it, statutory concealment which removes the bar. wholly pertaining for the additional As evidence liability by Henry, only of the defendant speculation can it sheer be said indicate he knowledge presence had actual of the the needle to its as a plaintiff prior discovery result of the requested x-ray by Harvey.
majority opinion necessarily implies could infer that reasonably president of the which took both the 1969 Radiology Group and 1972 to conceal x-rays, conspired condition x-ray plaintiff’s falsifying which disclosed report merely presence sutures.” There is no “radiopaque evidence given during the use of wire sutures report, indicated which operation, any abnormality would lead a prudent physician investigate Any further. of the results knowledge of the what the revealed x-ray beyond which report *13 can be attributed defendant must have been from his time friend.” acquired Pantaleo, “long Pantaleo testified that he never informed of a presence and there was no The refusal to believe contrary testimony. which is the trier’s would not Pantaleo, prerogative, an testi justify affirmative to his finding opposite Mayell, State v. 311 A.2d mony. 419, 427, Drost, (1972); Marquis v. 155 Conn. 327, 332, Panicali Connecticut State A.2d (1967); Relations, Board Labor 147 Conn. is suffi
A.2d 903 That alone friendship infer hang cient basis which to a reasonable upon indeed. ence of is a novel conspiracy proposition willingness This envisions the fantasy as defendant, who never even named conduct in unethical involve himself grossly brought light. in 1972 his own x-ray report which the realm be confined to should Such a contrivance as a basis sanction given judicial of fiction and not established standard. fraud under finding I dissent. Accordingly,