Appellate Court Notes - Week of December 20

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Welcome to our Supreme and Appellate Court summaries.  I have provided abbreviated summaries of decisions from the Connecticut appellate courts which highlight important issues and developments in Connecticut law, and provide practical practice pointers to litigants.  I have been summarizing these court decisions internally for our firm for more than 10 years, and providing relevant highlights to my municipal and insurance practice clients for almost as long.  It was suggested that a wider audience might appreciate brief summaries of recent rulings that condense often long and confusing decisions down to their basic elements.  These summaries are limited to the civil litigation decisions based on my own particular field of practice, so you will not find distillations of the many criminal and matrimonial law decisions on this page.  I may from time to time add commentary, and may even criticize a decision’s reasoning. Such commentary is solely my opinion . . . and when mistakes of trial counsel are highlighted because they triggered a particular outcome, I will try to be mindful of the adage . . . “There but for the grace of God . . ..”  I hope the reader finds these summaries helpful. – Edward P. McCreery

Posted December 20, 2013

  • SC18845 - Milliun v. New Milford Hospital

A medical malpractice case with some general principals of law: Patient went into respiratory failure in a CT hospital which allegedly resulted in a brain injury.  Patient was later treated at the out-of-state Mayo Clinic whose doctors wrote in their reports that her conditions were due in part to the incident that occurred at the CT hospital.  The Mayo Clinic however had a policy that its doctors could not offer opinions about medical malpractice.  In the later medical malpractice action against the CT hospital, the patient offered the medical reports from the Mayo Clinic as “expert reports” but they were excluded by the trial judge who later granted summary judgment to the defendants due to lack of expert testimony.  This decision held that such reports are generally admissible and it did not matter that many of the underlying facts in the expert reports about the CT incident were obtained from the patient or their representative.  Such medical reports are often based on hearsay communications.  The reports are admissible so long as the underlying facts are generally trustworthy and the defendant is provided an opportunity to cross examine the (expert witness) physicians.   Here the doctors refused to testify voluntarily so the plaintiff had to have an out-of-state commissioner appointed to subpoena them.  When the plaintiff’s attorney kept pressing the doctors to provide opinions on the standard of care and causation, the doctors and their attorney said they were not there for that purpose and got up and walked out.  The trial judge refused to order the depositions resumed based on the objection of the defendant who claimed treating physicians cannot be compelled to offer opinions when they have not be retained as an expert.

On appeal, the defendant claimed it had been unable to fairly cross examine the doctors.  That argument was futile because it was the defendant who objected to the doctors being forced to resume their depositions.  As to whether there exists in CT a treating physician’s privilege against being pressured into the expert witness role against their will, the Court said they did not have to go there.  The only things the doctors here were being asked is about were the details of what they had already written down in their reports.  Those physicians had repeatedly stated in their depositions that they offered no opinion (consistent with Mayo Clinic policy) on whether the CT hospital was negligent in causing the respiratory failure.  Those portions of their depositions may be used by the defendant at trial and the plaintiff will still have to prove causation of the incident at trial…..but the depositions and the medical reports may be offered to prove the incident caused the injuries.

Summary Judgment for the hospital was reversed and the depositions of the out-of-state doctors were ordered to resume so the plaintiff could obtain their full opinions about what they wrote.  [Note that a footnote states they will decide another day whether plenary review is the proper standard to review an evidentiary ruling in conjunction with a summary judgment motion.  Another footnote stressed that while they were deferring the “compelled expert issue," you certainly can’t pull a stranger off the street and press them into the role of an unwilling expert witness in any type of case.]

The facts and holdings of any case may be redacted, paraphrased or condensed for ease of reading.  No summary can be an exact rendering of any decision, however, so interested readers are referred to the full decisions.  The docket number of each case is a hyperlink to the Connecticut Judicial Department online slip opinion.

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