Albert Ward, Administrator of the Estate of Elbart Ward v. William Ramsey, M.D. et al. (2011)

MEMORANDUM OF DECISION RE MOTION FOR SUMMARY JUDGMENT (# 131 and # 140)

FACTS

The plaintiff, Albert Ward, in his capacity as administrator of the estate of Elbart Ward (decedent), filed a two-count amended complaint against the defendants, William Ramsey, a doctor, and the Connecticut Gastroenterology Consultants (CGC), on July 24, 2009.   The amended complaint alleges that while Ramsey was inserting a feeding tube for the decedent on July 27, 2007, he perforated the decedent's small intestine.   The decedent subsequently experienced severe abdominal pain, had a distended abdomen, was tymphatic and had a large amount of free air in his abdomen.   As a result of the complications from the insertion of the feeding tube, the decedent died on August 13, 2007.¹

To comply with the requirements of General Statutes § 52-190a for filing a medical malpractice action, the plaintiff attached to the amended complaint a certificate of good faith and an amended letter from William Bisordi, a physician board certified in internal medicine and gastroenterology, which stated that Ramsey deviated from accepted medical standards in his care of the decedent.

On June 24, 2010, the defendants filed a motion for summary judgment as to the plaintiff's entire amended complaint on the ground that there is no genuine issue of material fact that “Ramsey did not provide any follow-up care and treatment, nor did he treat the plaintiff's decedent following placement of the PEG feeding tube on July 27, 2007.”   In support of their motion, the defendants submitted as evidence the amended opinion letter, an April 12, 2010 memorandum of decision on the defendants' motion to dismiss ² and an affidavit by Ramsey.   The plaintiff filed an objection to the motion for summary judgment on August 12, 2010 and submitted as evidence an affidavit by the plaintiff.   The defendants filed a reply to the plaintiff's objection on August 30, 2010 and a supplemental motion for summary judgment on September 16, 2010.   Subsequently, the plaintiff filed a reply to the supplemental motion for summary judgment on November 4, 2010.   The defendants filed a reply to the plaintiff's reply on November 15, 2010.   The matter was heard at short calendar on November 22, 2010.

DISCUSSION

“Summary judgment is a method of resolving litigation when pleadings, affidavits, and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.”  Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989).  “[S]ummary judgment [is appropriate] in a medical malpractice case when ․ it is evident that the plaintiff will be unable to produce at trial an expert witness to testify regarding the applicable standard of care.”   (Internal quotation marks omitted.)  Sullivan v. Yale-New Haven Hospital, Inc., 64 Conn.App. 750, 766, 785 A.2d 588 (2001).  “In seeking summary judgment, it is the movant who has the burden of showing the nonexistence of any issue of fact.   The courts are in entire agreement that the moving party for summary judgment has the burden of showing the absence of any genuine issue as to all the material facts, which, under applicable principles of substantive law, entitle him to a judgment as a matter of law.   The courts hold the movant to a strict standard.   To satisfy his burden the movant must make a showing that it is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.”  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10-11, 938 A.2d 576 (2008).

“On a motion by [the] defendant for summary judgment, the burden is on [the] defendant to negate each claim as framed by the complaint ․ It necessarily follows that it is only [o]nce [the] defendant's burden in establishing his entitlement to summary judgment is met [that] the burden shifts to [the] plaintiff to show that a genuine issue of fact exists justifying a trial ․ Accordingly, [w]hen documents submitted in support of a motion for summary judgment fail to establish that there is no genuine issue of material fact, the nonmoving party has no obligation to submit documents establishing the existence of such an issue.”  (Internal quotation marks omitted.)  Vitale v. Kowal, 101 Conn.App. 691, 696-97, 923 A.2d 778, cert. denied, 284 Conn. 904, 931 A.2d 268 (2007).  “Summary judgment should be denied where the affidavits of the moving party do not affirmatively show that there is no genuine issue of fact as to all of the relevant issues of the case.”  (Internal quotation marks omitted.)  Doty v. Shawmut Bank, 58 Conn.App. 427, 431, 755 A.2d 219 (2000).

The defendants argue that “Ramsey did not provide any follow up care and treatment, nor did he treat the plaintiff's decedent following the placement of the PEG feeding tube on July 27, 2007;  therefore the defendants are entitled to judgment as a matter of law.”   The crux of the defendants' argument is that Ramsey is not negligent because he did not provide any follow-up care during the time period that is outlined in the plaintiff's opinion letter.   The defendants assert that the negligence alleged in the complaint and asserted in the opinion letter is negligent follow-up care.   Moreover, since “no physician-relationship existed between Dr. Ramsey and the plaintiff's decedent following insertion of the PEG feeding tube,” there was no legal duty on Ramsey's part to provide follow-up care and treatment.   Further, even if there was a duty of care, the defendants contend that Ramsey was not negligent because evidence of complications was not apparent at the time of the insertion.   Complications only became evident two days later, after a CT scan was performed, when Ramsey was not even present to provide the follow-up care.

The plaintiff argues that “it was a breach of the standard of care for [Ramsey] to fail to follow up on the condition of the plaintiff's decedent immediately and subsequently to the procedure performed by [him].”   Thus, the plaintiff claims, it is a question of fact whether the failure to provide follow-up care is a breach of the standard of care.   He argues that the insertion of the feeding tube does create a physician-patient relationship such that there should have been follow-up care.   Moreover, the plaintiff argues, the decedent experienced symptoms as early as the day of the insertion, and that Ramsey should have known about those symptoms and the lack of follow-up care constituted negligence.

A. Existence of Physician-Patient Relationship

The defendants maintain that because “no physician-relationship existed between Dr. Ramsey and the plaintiff's decedent following insertion of the PEG feeding tube,” there was no legal duty imposed upon Ramsey to provide follow-up care and treatment to the decedent.  “In Connecticut in order to establish a duty of care there must be a physician/patient relationship.   The physician/patient relationship is a consensual one and is created when the professional services of a physician are rendered to or accepted by another for the purposes of medical or surgical treatment.”   Rumbin v. Baez, Superior Court, judicial district of New Haven, Docket No. CV 95 0378968 (December 8, 1997, O'Keefe, J.), aff'd, 52 Conn.App. 487, 727 A.2d 744 (1999).  “[W]here a medical professional-patient relationship exists, the physician owes ․ a duty to diagnose and treat in compliance with the prevailing professional standard of care for that health care provider.”   Batista v. Jacobs, Superior Court, judicial district of Hartford, Docket No. CV 09 6006080 (June 23, 2010, Sheldon, J.) [50 Conn. L. Rptr. 193].  “The prevailing professional standard of care for a given health care provider shall be that level of care, skill and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.”  General Statutes § 52-184c(a).

In the present case, Ramsey concedes in his own affidavit that he did provide medical treatment to the decedent, namely, the insertion of the feeding tube.   While the defendants assert that such actions do not create a physician-patient relationship that exist beyond the insertion of the feeding tube, they have failed to provide any evidence that the insertion of the feeding tube creates no obligation.   They cannot do so because such an argument ignores fundamental common sense.   Moreover, Drown v. Markowitz, Superior Court, judicial district of Hartford, Docket No. CV 05 4010740 (September 29, 2008, Elgo, J.), the case which the defendants cite to for the proposition that the failure to provide follow-up care, does not rise to the level of negligence, is factually distinguishable.   In that case, two defendants, Dr. Flowers and Dr. DeMarcaida, were granted summary judgment where the plaintiff alleged that the decedent died from septic shock due to their negligence.   The evidence submitted showed that the negligent care began when the decedent began experiencing symptoms of septic shock around 11:30 a.m. on November 28, 2003.   Summary judgment was granted as to Flowers because unrefuted evidence showed that she had given the case to other doctors, was on vacation at the time the decedent received negligent care and was specifically absolved from any negligent conduct by the plaintiff's expert.  Id. Summary judgment was granted as to DeMarcaida because the evidence established that, per hospital and her personal policy, she made her rounds early in the morning before the decedent experienced any symptoms, that she was not informed of the decedent's deteriorating condition and that the plaintiff could produce no hospital policy mandating visits such that DeMarcaida would have or should have known about the decedent's condition during the time which the negligence allegedly occurred.   Such evidence showed that she did not breach the standard of care that had been established by the plaintiff's expert witness.  Id.

In the present case, the defendants have not presented any evidence that Ramsey had given the case to another doctor or even attempted to secure follow-up care for the decedent by other physicians.   Nor have the defendants presented evidence that hospital policy was such that Ramsey did not have to provide follow-up care to patients following the insertion of a feeding tube or that he should not have become aware of the decedent's deteriorating condition.   Only at oral argument did the defendants even raise a claim that Ramsey was on vacation following the insertion of the feeding tube.   This oral assertion is inadequate.  “It is not enough for the moving party merely to assert the absence of any disputed factual issue;  the moving party is required ‘to bring forward ․ evidentiary facts, or substantial evidence outside the pleadings ’ to show the absence of any material dispute.”   (Emphasis in original;  internal quotation marks omitted.)  Gambardella v. Kaoud, 38 Conn.App. 355, 358, 660 A.2d 877 (1995).   While the defendants have provided evidence that Ramsey did not provide follow-up care, they have not provided any evidence that the duty to provide follow-up care did not exist as a result of the physician-patient relationship created by the insertion of the feeding tube.   Thus, they have failed to meet their burden to show that a genuine issue of fact does not exist as to whether a physician-patient relationship existed between Ramsey and the decedent.

B. The Standard of Care

“[P]rofessional negligence or malpractice. .[is] defined as the failure of one rendering professional services to exercise that degree of skill and learning commonly applied under all the circumstances in the community by the average prudent reputable member of the profession with the result of injury, loss, or damage to the recipient of those services ․ Furthermore, malpractice presupposes some improper conduct in the treatment or operative skill [or] ․ the failure to exercise requisite medical skill ․” (Internal quotation marks omitted.)  Hayes v. Camel, 283 Conn. 475, 483 n.12, 927 A.2d 880 (2007).   The well established elements of a medical malpractice claim that the plaintiff must establish are:  “(1) the requisite standard of care for treatment, (2) a deviation from that standard of care, and (3) a causal connection between the deviation and the claimed injury ․” (Internal quotation marks omitted.)   Id., 483-4.

As noted above, the defendants claim that there was no legal duty imposed upon Ramsey to provide follow-up care.   Therefore, the defendants claim, the lack of follow-up care is not a breach of the standard of care.   The defendants point to the opinion letter which states that “Dr. William Ramsey, in his follow up care and treatment of Elbert Ward following the placement of the PEG feeding tube, deviated from the standard of care” and argue that the letter does not include the failure to provide follow-up care to support their position that the plaintiff cannot establish that Ramsey committed medical malpractice.   In addition to relying upon the opinion letter, the defendants rely on the affidavit of Ramsey.   While the opinion letter does not explicitly state that the failure to provide follow-up care and treatment is a breach of the standard of care, the letter in and of itself is not sufficient to establish that there is no question of material fact.   Nor does Ramsey's affidavit demonstrate that he was not negligent.   Moreover, the plaintiff, in his affidavit, states that “according to my understanding, it is routine or protocol and the appropriate standard of care for the doctor who performed a procedure on the patient to follow up with the patient's condition subsequent to the procedure” and that “Dr. Ramsey should have followed up on the condition of Mr. Elbart Ward immediately and subsequent to the procedure and reviewed any and all test results taken following the procedure.”   At the summary judgment stage, the defendants must show that there are no questions of material fact and that they are entitled to judgment as a matter of law based on uncontroverted evidence.   The defendants have not provided evidence to refute the plaintiff's statements, thus, there is a question of material fact as to whether the failure to provide any follow-up care is a breach of the standard of care.

CONCLUSION

Accordingly, for the foregoing reasons, the motion for summary judgment should be denied.

Wilson, J.

FOOTNOTES

FN1. The amended complaint alleges that Ramsey and CGC were negligent in the following ways:  failure to exercise care when inserting the PEG feeding tube;  failure to recognize the signs and symptoms of a perforated small intestine/bowel;  failure to recognize the cause of the decedent's large pneuomoperitoneum;  failure to rule out a perforated viscus;  failure to take adequate steps to timely repair a perforated viscus;  failure to adequately follow up the care of decedent following insertion of the PEG feeding tube;  failure to adequately treat the decedent for the perforated small intestine/bowel;  failure to properly monitor the decedent's condition;  and failure to take reasonable and proper precautions to avoid the possibility of harm to decedent.   The count against CGC is alleged under a theory of vicarious liability..  FN1. The amended complaint alleges that Ramsey and CGC were negligent in the following ways:  failure to exercise care when inserting the PEG feeding tube;  failure to recognize the signs and symptoms of a perforated small intestine/bowel;  failure to recognize the cause of the decedent's large pneuomoperitoneum;  failure to rule out a perforated viscus;  failure to take adequate steps to timely repair a perforated viscus;  failure to adequately follow up the care of decedent following insertion of the PEG feeding tube;  failure to adequately treat the decedent for the perforated small intestine/bowel;  failure to properly monitor the decedent's condition;  and failure to take reasonable and proper precautions to avoid the possibility of harm to decedent.   The count against CGC is alleged under a theory of vicarious liability.

FN2. The defendants cite Judge Corradino's April 12, 2010 Memorandum of Decision to support their argument that the defendants are entitled to judgment as a matter of law because the court recognized that “the plaintiff's case surrounds only the alleged negligence of Dr. Ramsey” and “Ramsey did not provide care and treatment during the plaintiff's decedent during the period at issue in the plaintiff's opinion letter.”   It should be noted, however, that the Memorandum of Decision denied the defendants' motion to dismiss on the ground that it failed to specify which physician deviated from the standard of care.   Contrary to the defendants' characterizations, the court did not express an opinion as to the plaintiff's case, it merely found that “the failure to specifically refer to Dr. Ramsey in the first letter was inadvertent and at the time the original opinion letter was composed and sent to the plaintiff's attorney the writer of that letter and the attorney would have reason to know and did know that the letter referred to the negligence of Dr. Ramsey.   Common sense would seem to indicate this-the original letter which in the heading referred to the suit against Ramsey said the doctor reviewed the records on the above referenced patient from 7/12/97 to 8/13/08 and the autopsy report.”.  FN2. The defendants cite Judge Corradino's April 12, 2010 Memorandum of Decision to support their argument that the defendants are entitled to judgment as a matter of law because the court recognized that “the plaintiff's case surrounds only the alleged negligence of Dr. Ramsey” and “Ramsey did not provide care and treatment during the plaintiff's decedent during the period at issue in the plaintiff's opinion letter.”   It should be noted, however, that the Memorandum of Decision denied the defendants' motion to dismiss on the ground that it failed to specify which physician deviated from the standard of care.   Contrary to the defendants' characterizations, the court did not express an opinion as to the plaintiff's case, it merely found that “the failure to specifically refer to Dr. Ramsey in the first letter was inadvertent and at the time the original opinion letter was composed and sent to the plaintiff's attorney the writer of that letter and the attorney would have reason to know and did know that the letter referred to the negligence of Dr. Ramsey.   Common sense would seem to indicate this-the original letter which in the heading referred to the suit against Ramsey said the doctor reviewed the records on the above referenced patient from 7/12/97 to 8/13/08 and the autopsy report.”

Wilson, Robin L., J.