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Campbell v. Palmer

Court of Appeals of Connecticut

January 23, 1990

Warren CAMPBELL
v.
Walter PALMER et al.

Argued Nov. 1, 1989.

Page 1065

Michael E. Wolf, Windsor, with whom, on the brief, was Mark R. Leder, Hartford, for appellant (plaintiff).

David S. Williams, with whom, on the brief, were Wayne G. Tillinghast and Jeffrey R. Godley, Norwich, for appellee (defendant John A. Tighe).

Before BORDEN, FOTI and LAVERY, JJ.

LAVERY, Judge.

This is a medical malpractice action brought by the plaintiff against the defendant physicians for failing to diagnose rectal cancer. The trial court granted the defendant's motion for summary judgment filed by the defendant radiologist, John A. Tighe, finding that the plaintiff's expert never stated, either in his deposition or his affidavit, that the defendant was guilty of malpractice or that he deviated from the applicable standard of care. The plaintiff's appeal followed.

[20 Conn.App. 545] The plaintiff claims that the trial court erred (1) in granting Tighe's motion for summary judgment, (2) in concluding that the plaintiff's expert did not raise a factual question as to Tighe's deviation from the standard of care, (3) in ruling that Tighe would suffer undue prejudice if the plaintiff were allowed to proceed to trial or redepose the plaintiff's expert, (4) in failing to view the evidence in the light most favorable to the nonmoving party, and (5) by abusing its discretion in determining that there was no factual issue as to the plaintiff's expert opinion. We agree with the plaintiff that his expert did raise a genuine issue of fact as to the standard of care and Tighe's deviation from it and, therefore, find error.

The documentation submitted in connection with Tighe's motion for summary judgment included the deposition of the plaintiff's expert, R. Harlow Hermanson, a radiologist, a letter of opinion from Hermanson dated June 15, 1987, and a sworn statement from Hermanson in the form of a letter to the plaintiff, dated December 15, 1989, explaining the answers in his deposition.

The following facts are relevant. In April, 1985, the plaintiff was referred to Tighe for a barium enema procedure.

Page 1066

Tighe's report to the referring physician did not indicate that any growths or lesions were discovered. In January, 1986, the plaintiff, after a three week period of rectal bleeding, went to another physician, who performed a sigmoidoscopy procedure, which revealed that the plaintiff had a large hemorrhagic malignant mass in the area of his rectum.

The plaintiff brought this medical malpractice action against the defendants for failure to diagnose the rectal cancer. After a series of discovery motions by Tighe, the trial court granted his motion in limine precluding [20 Conn.App. 546] the plaintiff from relying on testimony of any expert witness other than Hermanson on the standard of care.

Hermanson's initial report [1] found that Tighe's barium enema procedure was inadequate to exclude pathology and that the procedure should have been repeated and a sigmoidoscopy suggested to the patient. In September, 1988, Tighe deposed Hermanson. Tighe asked Hermanson whether Tighe had committed medical malpractice. Hermanson did not respond in the affirmative but he did testify that Tighe's procedure was not the way he would have done it and "not the way most of the people [he knew] would have acted." He testified that it was his opinion that the examination as a whole was inadequate. He also testified to the additional steps that a radiologist of adequate competency would have taken, namely, a repeat examination and a sigmoidoscopy or colonoscopy.

After the deposition, Tighe moved for summary judgment on the ground that no genuine issue of fact existed between the parties because the plaintiff did not present an expert that would testify that Tighe's conduct deviated from the standard of care. The plaintiff filed Hermanson's letter of December 15, 1988, which flatly states: "My testimony in response to that and subsequent[20 Conn.App. 547] questions ... clearly shows the ways in which, in my opinion, Dr. Tighe deviated from the Standard of Care."

The trial court granted Tighe's motion for summary judgment, stating, "Hermanson never testified, either in his deposition or his affidavit, that [Tighe] was guilty of malpractice or deviated from the applicable standard of care. His testimony, therefore, does not provide the basis for the necessary expert opinion on the issues of the applicable standard of care and whether [Tighe's] conduct deviated from it. Since his is the only expert testimony on liability, the plaintiff cannot make out a prima facie case."

" 'A trial court may appropriately grant a motion for summary judgment only when the affidavits and evidence submitted in support of the motion demonstrate that there is no genuine issue of material fact remaining between the parties and that the moving party is entitled to judgment as a matter of law. Practice Book § 384; Catz v. Rubenstein,201 Conn. 39, 48-49, 513 A.2d 98 (1986); Barnes v. Schlein, 192 Conn. 732, 738, 473 A.2d 1221 (1984). Although the party seeking summary judgment has the burden of showing the nonexistence of any material fact, a party opposing summary judgment must substantiate its adverse claim by showing that there is a genuine issue of material fact together with the evidence disclosing the existence of such an issue. Strada v. Connecticut Newspapers, Inc., 193 Conn. 313, 317, 477 A.2d 1005 (1984). In deciding a ...


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