Donald Briere et al. v. Greater Hartford Orthopedic Group, P.C. et al. (2013)

MEMORANDUM OF DECISION ON MOTION FOR SUMMARY JUDGMENT

The defendants, Greater Hartford Orthopedic Group, P.C., and Dr. David Kruger, have filed Motion for Summary Judgment on all counts of the complaint dated October 23, 2009 on the grounds that there has been no expert opinion disclosed to support the allegations of negligence in Count One and Count Two, the injury to the plaintiff could have been caused by something other than negligence so that the plaintiffs cannot prevail on Count Three for res ipsa loquitur, and Count Four and Count Five are for loss of consortium and derivative of Count One and Count Two.

Factual and Procedural Background

This action was brought by the plaintiffs by complaint dated October 23, 2009.   The original complaint alleged that on May 21, 2008, Donald Briere underwent a cervical laminectomy at Saint Francis Hospital.   The complaint further alleged:

9.  In order to perform the operation safely, the skull and neck have to be adequately immobilized.

10. One way to do so is through the use of a Mayfield skull clamp applied to the head, then attached to the operating table through a series of clamps and joints.

11. Dr. Kruger chose to do the operation in the face down position.

12. Dr. Kruger ordered the application of electro physiologic devices to monitor Don's spinal cord function during surgery.

13. After the anesthesiologist put Don to sleep, Dr. Kruger applied Mayfield tongs/skull clamp to Don's head.

14. Dr. Kruger performed or supervised the turning of Don face down on the operating room table with his body in a Wilson frame and with his head in a neutral position.

15. Dr. Kruger performed or supervised the attachment and positioning of the Mayfield skull clamp to the operating table.

16. As the operating surgeon, Dr. Kruger was responsible for positioning Don safely and securely for the operation.

17. Dr. Kruger began the operation by starting to remove bone at C6–7.

18. Before he could fully complete the removal of bone, the monitoring technician advised him that he had lost all electrical signals from the spinal monitoring.

19. Don's head had moved in the tongs and Wilson frame.

20. Don's head shifted up towards the head of the OR table.

21. Dr. Kruger repositioned Don's head and placed it into more flexion.

22. The electrical signals improved but did not return to normal.

23. Dr. Kruger aborted the operation.

24. Dr. Kruger then removed the Mayfield tongs.

* * * *

36. It is more likely than not that Dr. David Kruger was negligent or careless in one or more of the following ways:

A.  Dr. Kruger failed to plan a safe and effective operation.

B. Dr. Kruger failed to perform a safe and effective operation.

C. Dr. Kruger failed to position Don safely and securely on the operating table;  and/or

D. Dr. Kruger failed to make sure the skull clamp was safely and securely applied to Don's skull;  and/or

E.  Dr. Kruger failed to make sure the locking device connecting the skull clamp to the OR table was safely and securely applied;  and/or

F. Dr. Kruger failed to make sure that Don's positioning in the Wilson frame was safe and secure;  and/or

G. Dr. Kruger failed to make sure that Don would not move during the surgery.

The foregoing allegations focusing on the positioning of the plaintiff and the need to prevent the plaintiff's head and neck from moving are consistent with statements in the good faith letter that accompanied the complaint pursuant to Connecticut General Statutes § 52–190a.   That good faith letter was addressed to Roger Kaye, MD at Advocates Law Firm, LLC, was dated August 27, 2009 and stated in pertinent part:

I am a board certified orthopedic surgeon licensed in the states of New York and Connecticut.   I am familiar with the principles of positioning of patients for posterior spine surgery and SSEP (spinal cord monitoring).   I have reviewed the medical records in the above-captioned matter.

It is essential that the head and neck remain stable throughout this type of surgical procedure.   Positioning of the head in the skull clamp is the surgeon's responsibility.   In this case, the head appears to have slipped during the procedure, causing a spinal cord contusion and permanent neurological deficit.   After review of the available records of Donald Briere, it is my opinion there appears to be evidence of medical negligence.

The plaintiffs took the deposition of the defendant, Dr. Kruger on March 12, 2010.   The deposition of Gwen Moraski, M.D., the anesthesiologist for the surgery performed on Mr. Briere, was taken on August 4, 2010.   The deposition of Colin Hendsey, an electronic monitoring technician who was present during the surgery, was taken on August 6, 2010 and the deposition of Cheryl Irrizary, the nurse anesthetist involved in the procedure, was taken on March 4, 2011.

The plaintiffs were originally ordered to disclose their expert witnesses by October 1, 2010.   That deadline was eventually extended to December 1, 2011.   On October 24, 2011, the plaintiffs disclosed neurological surgeon Dr. James Macon as the sole witness to support the claims of negligence against the defendants.   Dr. Macon's deposition was held on March 28, 2012.   He testified that he would not be testifying that Mr. Briere's injury was due to the position of Mr. Briere.   Instead, he opined that the injury sustained by the plaintiff was a result of the negligent placement of retractors used during the surgery.

On April 27, 2012 the plaintiffs filed a Request for Leave to Amend Complaint.   The defendants filed a timely Objection to that Request.   On July 9, 2012 this court sustained the Objection without opinion.   On July 19, 2012, the plaintiffs moved for reargument on the grounds that they had never actually presented argument on the defendants' Objection.   That motion was granted and on August 6, 2012, this court heard argument on the Request for Leave to Amend Complaint and the Objection thereto.

The proposed amended complaint alleged that after the skin incision, Dr. Kruger separated the paraspinal muscles from the left side of the spinous process and laminae starting at about C6–7 and working upward.   Dr. Kruger used a retractor to create a space in which to operate.   The lateral (outer) blade pushed the muscles to the side.   The inner (medial) blade was thinner and had a hook at the end.   See paragraphs 10–14.   The proposed amended complaint further alleged that the plaintiff suffered a spinal cord contusion as a result of the retractor at C3–4 pressing on the cord.

The defendants argued that the original complaint related solely to the placement, positioning and/or securing of the plaintiff in the skull clamp during surgery.   They further argued that nearly four years after the treatment at issue and after the defendants had completed the deposition of the plaintiff's disclosed liability expert, the plaintiffs had, essentially, abandoned the claims of negligence and facts underlying same in the original complaint and, instead focused on an entirely new set of facts and conduct which they claimed gave rise to the plaintiff's injuries.

The plaintiffs argued that the allegations concerning Dr. Kruger's negligent use of the retractor related back to the original complaint because that complaint contained the allegation that Dr. Kruger failed to plan and perform a “safe and effective operation.”

After giving the plaintiffs an opportunity to argue concerning the proposed amended complaint, this court ruled that the allegations of the proposed amended complaint alleged a new and different cause of action and did not relate back to the original complaint.   The court sustained the defendants' Objection to the amendment, relying on the cases of Alswanger v. Sego, 257 Conn. 66 (2001), Felsted v. Kimberly Auto Services, Inc., 25 Conn.App. 665, 667 (1991), Dimmock v. Lawrence and Memorial Hospital, 286 Conn. 789 (2008), and Sharp v. Mitchell, 209 Conn. 59, 73 (1988), and stated:

The allegations that the defendants failed to perform a safe operation is so generic that it could refer to anything.   When combined with the numerous allegations in the original complaint which pertained only to the positioning of Mr. Briere's head with the Mayfield clamp, the reference to the safe operation alerted the defendants only that the plaintiffs claimed the operation was unsafe due to head position.   It gave them no warning whatsoever that the plaintiffs claimed the operation was unsafe because Dr. Kruger misused a retractor.

Ruling on Objection to Request for Leave to Amend, August 7, 2012, p. 5. Emphasis added.

The plaintiffs filed a Notice of Intent to Appeal from the foregoing ruling on August 24, 2012.   Defendants then filed the Motion for Summary Judgment presently under consideration.   That motion was denied by this court, Domnarski, J. Thereafter, the undersigned advised counsel that she could not change the ruling of Judge Domnarski, but that at the trial the court would not allow evidence relating to the proposed amended complaint for the reasons set forth in the August 7, 2012 ruling.

The parties entered into a Stipulation dated May 31, 2013.   The effect of that Stipulation was that Judge Domnarski would vacate his denial of the summary judgment and the Motion for Summary Judgment would be argued before the undersigned.   It should be noted that the plaintiffs entered into the Stipulation under protest.   The obvious purpose of the Stipulation is to avoid the expense of a trial if this court's ruling on the Objection to the Request to Amend is correct.   If a higher court disagrees, and rules that the allegations of the proposed amended complaint do relate back to the original complaint, then the trial can proceed.

Discussion of the Law and Ruling

“Practice Book § 17–49 provides that summary judgment shall be rendered forthwith if the 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.   In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party.”  (Internal quotation marks omitted.)  Brooks v. Sweeney, 299 Conn. 196, 210, 9 A.3d 347 (2010).  “[T]he genuine issue aspect of summary judgment requires the parties to bring forward before trial evidentiary facts, or substantial evidence outside the pleadings, from which the material facts alleged in the pleadings can warrantably be inferred ․ A material fact has been defined adequately and simply as a fact which will make a difference in the result of the case.”  (Citation omitted;  internal quotation marks omitted.)  Buell Industries, Inc. v. Greater New York Mutual Ins. Co., 259 Conn. 527, 556, 791 A.2d 489 (2002).

“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 ․ As the burden of proof is on the movant, the evidence must be viewed in the light most favorable to the opponent ․ When 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 ․ Once the moving party has met its burden, however, the opposing party must present evidence that demonstrates the existence of some disputed factual issue ․ It is not enough, however, for the opposing party merely to assert the existence of such a disputed issue.   Mere assertions of fact ․ are insufficient to establish the existence of a material fact and, therefore, cannot refute evidence properly presented to the court under Practice Book § [17–45].”  (Internal quotation marks omitted.)  Ramirez v. Health Net of the Northeast, Inc., 285 Conn. 1, 10–11, 938 A.2d 576 (2008).

The defendants have supported their Motion for Summary Judgment with deposition testimony of the defendant, Dr. Kruger, the plaintiff's expert, Dr. Macon, Cheryl Irrizary, and Dr. Gwendolyn Moraski.   The plaintiffs filed the affidavit of Roger Kaye, MD, a Board Certified Neurosurgeon and attorney, employed by the plaintiffs' law firm, in opposition to the summary judgment.   After the Stipulation and prior to the second argument on the Motion for Summary Judgment, the plaintiffs filed the deposition transcripts of Dr. Kruger and Dr. Macon, with a commentary thereon.   The depositions and the commentary were only pertinent to the Second Amended Complaint which the court had not allowed.

The plaintiffs have not offered any evidence in opposition to the Motion for Summary Judgment.   This is consistent with prior statements in pleadings in which they indicated that the failure to allow an amendment would lead to the granting of a summary judgment.   For example in the Plaintiffs' Motion to Reargue/Reconsider Denial of Leave to File Amended Complaint date July 18, 2012, p. 10, the plaintiffs state that “[u]nless the decision [disallowing the amendment] is reversed, or the court stipulates that the denial of the amended complaint does not estop the plaintiff from arguing the particularized allegations of the amended complaint at trial, then the case is essentially over ․ and appeal will be pursued.”

The plaintiffs' Objection to the Motion for Summary Judgment is, essentially, an attempt to reargue the Objection to the Request to Amend the complaint.¹  Although the court has already denied the plaintiffs' second Motion to Amend the complaint because it seeks to add a completely new cause of action, the court will address the plaintiffs' arguments in opposition to summary judgment, which were really arguments that they had been unfairly denied the right to amend their complaint.

In their Commentary to the depositions transcripts of Dr. Kruger and Dr. Macon the plaintiffs have inaccurately described some deposition testimony.   For example, in arguing that statements made by Dr. Kruger confirmed some negligence on his part or at least “confused” the plaintiffs, they claim that Mrs. Briere “testified that Dr. Kruger said an ‘oopsie’ had occurred during the operation.”   See Commentary, July 19, 2013, p. 7. However, the deposition transcript of Mrs. Briere reflects that Mrs. Briere actually testified at her deposition that after the operation Dr. Kruger came in to explain that he had reviewed the surgery and concluded that “[h]e did everything right, by the book, not an ‘oopsy ’ “ Deposition, Nancy Briere, p. 121.   Emphasis added.

At oral argument, the plaintiffs argued that the real negligence (misplacement of the retractor) had been hidden from the plaintiffs, the medical records were vague, and/or that something beyond their control prevented their experts from realizing until April 2012 that a misplaced retractor caused the plaintiff's injury.   These arguments are difficult to accept.   The deposition of Nancy Briere confirms that the surgery occurred on May 21, 2008 and the plaintiffs retained counsel on June 8, 2008.   Dr. Kaye, who is associated with the plaintiffs' counsel's firm, and is a board-certified neurosurgeon with forty years of experience could have reviewed the records and surely knew that the spine had to be exposed by a retractor during the procedure.   There is no dispute that the intraoperative x-ray showing the retractor in place was available to the plaintiffs from the beginning of the case.   The plaintiffs took the deposition of the defendant, Dr. Kruger on March 12, 2010.   At that deposition, the plaintiffs had the opportunity to clear up any “vagueness” that hampered their ability to determine the ways in which the defendants violated the standard of care.   The deposition of Gwen Moraski, M.D., the anesthesiologist for the surgery performed on Mr. Briere, was taken on August 4, 2010.   The deposition of Colin Hendsey, an electronic monitoring technician who was present during the surgery, was taken on August 6, 2010 and the deposition of Cheryl Irrizary, the nurse anesthetist involved in the procedure, was taken on March 4, 2011.   If the medical record was as vague as the plaintiffs imply, surely they could have become aware of the problem with their original claim of negligence well before April 2012, when they first moved to amend their complaint.

It is difficult for the court to conclude that anything the defendants did or failed to do was responsible for this late amendment.   At the oral argument the plaintiffs' counsel stated that his experts, presumably Dr. Kaye and the surgeon who provided the good faith opinion, “missed” the retractor issue when they first looked at the operative x-ray.   This may have been “unfair,” but was not an unfairness caused by the defendants.   The court's ruling preventing the plaintiffs from changing their negligence claims some three years after the filing of this suit was consistent with the law.   See Alswanger v. Sego, 257 Conn. 66 (2001), Felsted v. Kimberly Auto Services, Inc., 25 Conn.App. 665, 667 (1991), Dimmock v. Lawrence and Memorial Hospital, 286 Conn. 789 (2008), and Sharp v. Mitchell, 209 Conn. 59, 73 (1988).

The defendants have presented the testimony of the Dr. Kruger, Cheryl Irrizary and Dr. Macon, all of which agree that the position of the plaintiff's head during surgery was neutral.   That evidence shows no malpositioning of the patient's head.   Most importantly, Dr. Macon, the plaintiffs' expert witness, testified at his deposition that he would not be testifying that Mr. Briere's injury was due to the positioning of his head or neck.   Deposition, James B. Macon, M.D., pp. 111–12.   As the allegations of improper positioning of Mr. Briere are the only substantive allegations of negligence in Counts One and Two, summary judgment enters on those counts.

In Count Three, the plaintiffs allege res ipsa loquitur.   The defendants have presented evidence both from Dr. Kruger and Dr. Macon that the plaintiff's injury could have occurred in the absence of negligence.   Dr. Kruger testified that the injury to the plaintiff most likely resulted from a low-flow, relative-hypotensive state leading to a cervical infarct.   Deposition, David Kruger, M.D., pp. 30–33.   Dr. Macon acknowledged that the plaintiff suffered from diabetes and hypercholesterolemia and that these conditions frequently give rise to the narrowing of blood vessels and that it was plausible that the cervical blood vessels in the plaintiff were narrowed.   Deposition, Dr. James B. Macon, M.D., pp. 46–47.   He also agreed that it was possible that the plaintiff's condition resulted from a spinal infarct.  Id., pp. 47, 58–59.

“The doctrine of res ipsa loquitur, literally the thing speaks for itself, permits a jury to infer negligence when no direct evidence of negligence has been introduced ․ The doctrine of res ipsa loquitur applies only when two prerequisites are satisfied.   First, the situation, condition or apparatus causing the injury must be such that in the ordinary course of event no injury would have occurred unless someone had been negligent.   Second, at the time of the injury, both inspection and operation must have been in the control of the party charged with neglect ․ When both of these prerequisites are satisfied, a fact finder properly may conclude that it is more likely than not that the injury in question was caused by the defendant's negligence.”  Boone v. William W. Backus Hospital, 272 Conn. 551, 575–76 (2005) (quoting Godwin v. Danbury Eye Physicians & Surgeons, P.C., 254 Conn. 131, 140 (2000) (citation omitted;  internal quotation marks omitted)).

This case is analogous to Boone, where the plaintiff sought to recover under theories of negligence, recklessness and res ipsa loquitur for the improper administration of Rocephin, an antibiotic, and failure to recognize and treat the patient's adverse reaction to the drug.   The court rejected the plaintiffs' claim of res ipsa loquitur, stating that “the fact that an operation or treatment has resulted unfavorably does not, of itself, raise any presumption of want of proper care or skill.”  Boone, supra, at 576.   The court held that the plaintiff had not satisfied the first requirement of res ipsa loquitur:  that the situation causing the injury must be such that in the ordinary course of events no injury would have occurred absent negligence.   The jury could reasonably conclude that the injuries and death could have occurred in the absence of negligence.  Id. In light of the opinions of Dr. Kruger and Dr. Macon as to the possible causes of the plaintiff's injury which were not related to any negligence, the plaintiff will not be able to prove the required first element of the res ipsa loquitur claim.   Summary judgment enters on Count Three.

Counts Four and Five are loss of consortiums claims filed by Mrs. Briere.   As such they are derivative of the causes of action alleged in Counts One and Two. Since summary judgment has entered on those counts, summary judgment must also enter on Count Four and Count Five.

By the Court,

Aurigemma, J.

FOOTNOTES

FN1. The plaintiffs filed a Second Motion to Amend the Complaint.   This was denied for the same reasons set forth in the August 7, 2012 Ruling on August 15, 2013..  FN1. The plaintiffs filed a Second Motion to Amend the Complaint.   This was denied for the same reasons set forth in the August 7, 2012 Ruling on August 15, 2013.

Aurigemma, Julia L., J.