Deborah B. Goldberg, Admin. of the Estate of Mark Goldberg et al. v. Matthew F. Colliton, M.D. (2013)

MEMORANDUM OF DECISION ON PLAINTIFFS' MOTION FOR PREJUDGMENT REMEDY

This is a medical malpractice case in which the plaintiffs claim that the defendant who is board certified in internal medicine and was the doctor for Mark Goldberg violated the Standard of Care for an internist in negligently treating Mark Goldberg by not recognizing that he had a dangerous heart condition which resulted in his death.   The plaintiffs have brought this motion to attach real estate of the defendant in Bloomfield, Connecticut, in the amount of $500,000, alleging that Dr. Colliton is insured for $1,000,000 but the verdict, they claim, will be more than $1,500,000.

FACTS

STANDARD OF REVIEW

CGS Sec. 52–278d provides as to a prejudgment remedy that the Court is required to take into account any defenses, counterclaims or setoffs.   The Court is, however, to determine “whether or not there is probable cause that a judgment in the amount of the prejudgment remedy sought, or in an amount greater than the amount of the prejudgment remedy sought ․ will be rendered in the matter in favor of the plaintiff.”   The standard set for proof of probable cause is set forth in the case of TES Franchising, LLC v. Feldman, 286 Conn. 132, 137 (2008), as follows:  “Proof of probable cause as a condition of obtaining a prejudgment remedy is not as demanding as proof by a fair preponderance of the evidence ․ probable cause is a flexible common sense standard.   It does not demand that a belief be correct or more likely true than false ․ the trial court's function is to determine whether there is probable cause to believe that a judgment will be rendered in favor of the plaintiff in a trial on the merits ․ In its determining of probable cause, the trial court is vested with broad discretion which is not to be overruled in the absence of clear error.”

ISSUES AND FINDINGS

There is presently pending a motion to dismiss claiming violation of the Statute of Limitations which is the sole special defense, and which is before another judge.   There is also a motion for a Porter hearing as to an expert witness, but that was not claimed at the prejudgment remedy hearing.   A hearing was held on July 18, 2013, before this Court.   It consisted of oral argument but no evidence other than the documents submitted with the motion and the objection to said motion.

It is not the function of this Court to weigh the expertise of the experts who have been presented by the plaintiffs and the defendant.

The Court has reviewed the cases cited by the parties and the depositions of their experts.   The plaintiffs' expert, Stephen R. Payne, MD, is board certified in internal medicine.   In his deposition he asserted that “․ failing to adequately investigate the cardiac status (of Mr. Goldberg) ․ there were EKGs done in 2003 and 2004, and that is some type of investigation of cardiac status, so is listening to the heart, so it taking a pulse and that sort of thing;  failing to adequately investigate.”   Dr. Payne also cited the family history of heart disease in the father of Mark Goldberg.   Additionally, he testified that “It was known that the cholesterol was elevated and there had been an electrocardiogram that was done at the time.   The electrocardiogram showed a significant Q wave in limb lead 3 in a small Q wave in limb lead VF, which was suspicious for an inferior myocardio infarction ․ I believe that the failure to note those significant changes was below the standard of care ․ Dr. Colliton also failed to initiate any further cardiac evaluation which would have been mandated by the standard of care in the face of a patient with multiple cardiac risk factors and an abnormal EKG.” Dr. Payne goes on to comment that Mark Goldberg had shortness of breath on exertion and that in addition to the abnormal EKG that is also suspicious for underlying heart disease.   In effect he believed that the defendant failed to be suspicious of a cardiac problem and refer Mr. Goldberg for a full cardiac workup.

There was a deposition of Laurence J. Sloss, MD, board certified in internal medicine and cardiovascular disease.   On causation he testified that the death of Mark Goldberg was caused by an acute cardiac arrhythmia complicating unstable ischemic disease and that prompt diagnosis and appropriate intervention would more likely than not have saved and substantially prolonged Mr. Goldberg's life.   He also cited family history, the results of an electrocardiogram and that he most probably died of an acute cardiac arrhythmia complicating some form of unstable ischemic heart disease.

The defendant's experts disagree and do not believe that the defendant violated the standard of care, however, this Court finds sufficient evidence by the experts presented by the plaintiffs to conclude that there is probable cause that the death of Mr. Goldberg was caused by the defendant violating the standard of care.

DAMAGES

Plaintiffs have an expert witness who has opined that Mark Goldberg's loss of income up to age 65 will be approximately $500,000.   There is also a claim for loss of consortium by Deborah Goldberg, the wife of the 54–year–old Mark Goldberg, and, of course, there is the death of the plaintiff, Mark Goldberg, who had a life expectancy of at least 24 years.

Based upon the foregoing, the Court finds that there is probable cause that a judgment against the defendant will be for more than $1.5 million dollars.

Accordingly, the prejudgment remedy is granted in the amount of $500,000 and the plaintiff may attach the asset of the defendant, being, 4 Colonial Drive South, Bloomfield, Connecticut.

Rittenband, JTR

Rittenband, Richard M., J.T.R.