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Ruff v. Yalenew Haven Hospital, Inc.

Court of Appeals of Connecticut

May 2, 2017


          Argued October 25, 2016

         Appeal from Superior Court, judicial district of New Haven, Wilson, J.

          John Kardaras, for the appellant (plaintiff).

          Kim E. Rinehart, with whom, on the brief, was Erika L. Amarante, for the appellee (named defendant).

          DiPentima, C. J., and Keller and West, Js.


          WEST, J.

         In this medical malpractice case, the plaintiff, Michael Ruff, appeals from the trial court's granting of the motion by the defendant Yale-New Haven Hospital, Inc., for a directed verdict and the judgment rendered in favor of the defendant. On appeal, the plaintiff claims, inter alia, that the court erred in: (1) precluding the expert testimony of his sole standard of care witness, Donna Maselli, a registered nurse; and (2) granting the defendant's motion for a directed verdict based on its preclusion of Maselli's testimony.[1] We disagree and affirm the judgment of the trial court.

         The record reveals the following facts and procedural history. The plaintiff was a patient at the defendant hospital for a total right knee replacement surgery on February 4, 2010, performed by Dr. Richard Pelker. In advance of the surgery, and after the plaintiff was given anesthesia, the defendant Dianne Meltzer, [2] a registered nurse and employee of the defendant hospital, inserted a Foley catheter[3] into the plaintiff's bladder to drain his urine during and after the surgery. Pelker then performed the knee replacement surgery, and the catheter remained inserted in the plaintiff's bladder. Meltzer testified in her deposition that she did not meet any resistance when inserting the catheter, and that it was a ‘‘successful insertion'' because the plaintiff's urine began draining immediately. Meltzer noted that the urine was ‘‘light red'' with blood, which she testified could indicate that there was some irritation in the urethra from the procedure or that the patient was on medication that could cause bleeding.

         On February 8, 2010, the plaintiff was discharged from the hospital to Montowese Rehabilitation Facility in North Haven (Montowese) for rehabilitation of his knee. While there, he was having difficulty urinating and saw blood in his urine. The staff at Montowese changed his catheter and later sent him to the defendant hospital, where hospital staff ‘‘inserted about . . . three or four catheters.'' He returned toMontowese, and around February 16, 2010, his catheter was removed. By February 18, 2010, the plaintiff was not having trouble urinating and did not have blood in his urine. On March 14, 2010, however, the plaintiff was sent to the emergency room of the Hospital of Saint Raphael because he was unable to urinate. The emergency room nursing staff was unable to place a catheter, so the on-call urologist, Dr. Joseph Camilleri, treated him. Because of a stricture in the plaintiff's urethra, Camilleri had to dilate the plaintiff's urethra in order to insert a catheter to drain his urine. This procedure did not result in any blood in the plaintiff's urine. Camilleri thereafter became the plaintiff's urologist and was still his treating urologist at the time of trial.

         Before becoming a patient of Camilleri's, the plaintiff had been treated by other urologists for a long history of urological problems, including the inability to urinate, erectile dysfunction, and blood in his urine. The plaintiff testified that he had been catheterized ‘‘many times'' during different surgical procedures prior to his knee replacement surgery and, after one such surgical procedure, he experienced difficulty urinating for ‘‘two to three months'' and had to self-catheterize at home. In the 1980s, he was admitted to the hospital many times for the inability to urinate, was treated at a urology clinic, and was under the ongoing care of a urologist. In the 1990s, he was treated by his urologist for an enlarged prostate. In 1998, he was treated by his urologist for erectile dysfunction. In 2003, he was treated by his urologist because he was having difficulty urinating and also was experiencing ‘‘urine running down [his] leg.'' In 2004, he had a heart procedure, during which a Foley catheter was inserted into his bladder, which led to him having ‘‘dark, red urine with blood clots.'' At the time of his knee surgery, on February 4, 2010, the defendant was taking ‘‘twenty-five or so medications a day'' for his various health conditions, including blood thinners and medication to treat his enlarged prostate.

         The plaintiff commenced this medical malpractice action on January 10, 2011, claiming that Meltzer negligently had inserted the Foley catheter on February 4, 2010, puncturing his prostate. He alleged that the defendant ‘‘through its agents, servant, employee and/or independent contractors under their control in treating and caring for the plaintiff . . . failed to exercise a degree of care, skill and diligence ordinarily exercised by hospitals engaged in the specialty of treating patients in the community with the need for surgery'' and put forth a number of further allegations in support of that con-tention.[4] He sought damages on the basis of his allegation that he sustained injuries from the catheter insertion and had to undergo additional testing, and medical and surgical procedures; had to take additional medication; had ‘‘extensive scarring, pain and suffering''; had lost the ability to ejaculate; had incurred additional medical expenses; and ‘‘[had] been deprived of his ability to carry out life's normal activities, recreation, social activities, and sexual activities.''

         Prior to trial, the plaintiff disclosed to the defendant that registered nurse Maselli would testify as his sole standard of care expert. The defendant deposed Maselli on December 13, 2013, and she testified that since 1995, she had worked as a nurse consultant for the Department of Public Health (department). Her responsibilities in this position consisted of developing statewide health programs, writing guidelines and protocols for statewide programs, doing trainings and on-site visits, contract management, and grant writing and monitoring. She further testified that through her work with the department, she did not treat patients. She conceded that none of her work at the department involved clini- cal care nursing, which she had not done since 1995, when she was a nursing supervisor at a convalescent home.

         She also testified in her deposition that in addition to her job with the department, she was the chief executive officer, and sole employee, of Apex Medical Legal Consulting (Apex). Through her work at Apex, she reviewed medical records, and provided summaries, translation, and interpretation of those records. She did not testify, however, that she provided nursing services through her work with Apex. Maselli further testified that she also worked as an independent private duty nurse, and estimated that she worked an average of twenty hours per week in that capacity. She testified that she usually provided these services for family and friends and often did not charge for her services. In this capacity, she did not ‘‘do medications or treatments, the hospital staff [did] that'' but provided ‘‘basic nursing care, fluids, ambulating, assessing, [and] deep breathing.'' She did not testify, however, that she provided any of these services under the direction of a licensed physician or advanced practice registered nurse. She also testified that she did not routinely place Foley catheters in her work, and, in fact, the last time she had placed a Foley catheter was in the 1980s, when she last worked in a hospital.

         Prior to the start of trial, the defendant filed a motion in limine to preclude Maselli from testifying at trial on the grounds that she was not qualified as a ‘‘similar health care provider'' to Meltzer, a clinical care nurse, pursuant to General Statutes § 52-184c (b)[5] and, therefore, she was ‘‘not qualified to offer opinions related to the standard of care applicable to a registered nurse inserting a Foley catheter on February 4, 2010.''[6] In support of this contention, the defendant argued that Maselli's testimony should be precluded because she was a nonspecialist, and, therefore, was subject to the five year provision of § 52-184c (b), which she could not satisfy because she lacked ‘‘active involvement in the practice or teaching of [nursing] within the five year period before'' the plaintiff's knee surgery. The defendant further argued that Maselli did not qualify as an expert witness under the catch-all provision of § 52-184c (d)[7] because the same five year rule applied.

         The court orally granted the defendant's motion on February 20, 2015, after the trial had started, and precluded Maselli's testimony pursuant to § 52-184c (b) and (d). In so doing, the court cited Maselli's deposition testimony regarding her employment history and stated: ‘‘The court concludes that pursuant to [§ 52-184c (b) (2)] Maselli lacks active involvement in the practice or teaching of nursing within the five year period before February [4], 2010.'' It went on to state: ‘‘Since the court has concluded that Maselli is not a similar health care provider under subsection (b), the court must deter- mine whether under [subsection] (d) she possesses sufficient training, experience and knowledge as a result of practice or teaching in a related field of nursing so as to be able to provide such expert testimony as to the prevailing standard of care in a given field of nursing. Such training, experience or knowledge shall be as a result of the active involvement in the practice or teaching of nursing within the five year period before the incident giving rise to the claim. Again, the court concludes based upon a careful review ...

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