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Scott v. CCMC Faculty Practice Plan, Inc.

Court of Appeals of Connecticut

July 16, 2019


          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. [*]


          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 ...

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