Argued
February 11, 2019
Procedural
History
Action
to recover damages for the defendants' alleged medical
malpractice, brought to the Superior Court in the judicial
district of Hartford, where the court, Dubay, J., denied the
plaintiff's motion to preclude certain evidence;
thereafter, the matter was tried to the jury; verdict for the
defendants; subsequently, the court denied the
plaintiff's motion in arrest of judgment, to set aside
the verdict and for a new trial, and rendered judgment in
accordance with the verdict, from which the plaintiff
appealed to this court. Affirmed.
Alinor
C. Sterling, with whom, on the brief, were Sean K. McElligott
and Sarah Steinfeld, for the appellant (plaintiff).
Michael R. McPherson, with whom was Joyce A. Lag-nese, for
the appellees (defendants).
Alvord, Sheldon and Moll, Js. [*]
OPINION
ALVORD, J.
The
plaintiff, Brandon Scott, appeals from the judgment of the
trial court, rendered following a jury trial, in favor of the
defendants, Paul Kanev, a neurosurgeon, and CCMC Faculty
Practice Plan, Inc. On appeal, the plaintiff claims that the
trial court (1) improperly permitted the defendants to
introduce evidence that the plaintiff's pain
substantially resolved due to a syrinx that had developed
within his spinal cord to establish a reduction in damages
(syrinx evidence), and (2) erred when it failed to instruct
the jury with respect to such evidence. We affirm the
judgment of the trial court.
The
jury reasonably could have found the following facts. In
December, 2004, the plaintiff began to experience severe and
intractable neuropathic pain in his groin area.[1] To treat the
pain, the plaintiff was
pre-scribeda‘‘remarkable'' amount
ofvarious narcotic medications. The plaintiff became
bedridden and could not walk more than a few steps at a time.
He experienced severe anxiety and was diagnosed with major
depressive disorder. In addition, he gained approximately 100
pounds, and his physician described him as morbidly obese.
The Social Security Administration classified him as totally
and permanently disabled.
The
plaintiff first visited Dr. Kanev, a neurosurgeon with CCMC
Faculty Practice Plan, Inc., on April 9, 2007. Dr. Kanev
recommended that he implant a spinal cord
stimulator[2] to control the pain and considered it
‘‘the last resort and only option'' for
the plaintiff. On May 8, 2007, Dr. Kanev performed surgery on
the plaintiff to implant the spinal cord stimulator. During
the course of the procedure, the plaintiff sustained a spinal
cord injury. Dr. Kanev, upon realizing that the plaintiff had
lost sensation in the lower portion of his body, made no
further attempt to implant the spinal cord stimulator and
terminated the procedure. The spinal cord injury left the
plaintiff paralyzed from the waist down.
Following
the surgery, the plaintiff continuedto experience severe
neuropathic pain. By January, 2008, a syrinx began to form
within the plaintiff's spinal cord.[3]In June, 2009,
doctors drained the syrinx. That same year, the plaintiff had
a morphine pump surgically implanted to control the pain, and
he was able to begin reducing the amount of narcotic
medications he was taking. By September, 2011, the
plaintiff's neuropathic pain substantially
resolved.[4]
The
plaintiff subsequently brought this medical malpractice
action against the defendants.[5] In his operative complaint,
[6] the
plaintiff alleged that the defendants breached the applicable
standard of care when Dr. Kanev performed surgery on the
plaintiff by (1) inserting the needle at the tenth and
eleventh vertebrae, (2) inserting the needle at the eleventh
and twelfth vertebrae, (3) failing to enter the epidural
space below the level of the spinal cord, (4) inserting the
needle at an improper angle, and (5) attempting a retrograde
placement of the electrode. The plaintiff alleged that, as a
result of the injuries caused by the defendants'
negligence, he ‘‘has been permanently deprived of
his ability to carry on and enjoy life's activities and
his earning capacity has been permanently
diminished.''
During
discovery, in addition to their initial disclosure of expert
witnesses, the defendants filed a supplemental expert witness
disclosure, in which they indicated that they planned to call
Robert Levy, a neuro-surgeon, to testify regarding the syrinx
evidence. Specifically, the disclosure stated that Dr. Levy
would testify ‘‘that following injury to the
spinal cord, [the plaintiff] developed what is referred to as
a syrinx, which is a fluid filled cyst within the spinal
cord. . . . Dr. Levy is expected to testify that the
development of [the plaintiff's] syrinx and its
subsequent drainage, on a more probable than not basis,
explains why [the plaintiff's] pudendal pain has
substantially resolved.''
On
April 14, 2016, the plaintiff filed a motion in limine to
preclude the admission of the syrinx evidence. The plaintiff
argued that the defendants were attempting to use the
evidence to claim ‘‘that although they paralyzed
[the plaintiff], their actions resulted in an improvement of
his condition, which entitles them to a damages
credit.'' The plaintiff argued that this evidence,
and any argument related to this evidence, must be precluded
because it is ‘‘completely outside the
pleadings'' and ‘‘would need to be
pleaded as a special defense.'' The plaintiff also
argued that ‘‘[t]he theory the defendants are
advancing through their experts is . . . completely
inconsistent with the goals of Connecticut tort law''
with respect to ‘‘deterrence and compensation of
[an] innocent, injured party.'' On May 3, 2016, the
defendants filed an objection to the plaintiff's motion.
They argued that the evidence was admissible, under §
920 of the Restatement (Second) of Torts, to mitigate
damages.
On May
9 and 12, 2016, the court held a hearing on the
plaintiff's motion in limine. The court concluded that
although § 920 of the Restatement (Second) of Torts was
not implicated, the defendants' evidence was admissible
with respect to the plaintiff's claim of damages for loss
of life's enjoyment. The court explained:
‘‘It's in the nature of [the plaintiff's]
ability to engage in and enjoy life's daily activities
from this day forward or from whenever the pain stopped
forward. That's what it's about. It's about [the
plaintiff's] damages, one category of [his]
damages.''
A jury
trial commenced on May 12, 2016. During trial, the plaintiff
submitted a written request to charge that asked the court to
instruct the jury to disregard the syrinx evidence or, in the
alternative, to instruct the jury that the defendants had the
burden to prove that (1) their negligent acts proximately
caused the resolution of the plaintiff's pain in 2011,
and (2) in the absence of their negligence, the
plaintiff's pain would have continued for the rest of his
life ...