ERIC KLEIN et al. v. NORWALK HOSPITAL, SC 18395

Judicial District of Stamford-Norwalk

 

      Medical Malpractice; Causation; Harmless Error; Whether Appellate Court Properly Decided that any Error Committed by Trial Court in Prohibiting Plaintiff's Expert Witness from Testifying on an Issue of Causation was Harmless.  The plaintiff brought this medical malpractice action against the defendant hospital, alleging that he was injured when a hospital nurse attempted to insert an intravenous line into his left arm.  At trial, the plaintiff sought to establish, through the expert testimony of Clifford Gevirtz, that his injury was not caused by a condition known as Parsonage Turner Syndrome (PTS), but rather that it was caused by an attempted insertion of an intravenous line into his arm.  The trial court prohibited Gevirtz from providing testimony regarding PTS on the ground that the plaintiff's expert witness disclosure did not state that he would be presenting such testimony.  The court later permitted a defense expert, Robert Strauch, to testify that the plaintiff's alleged injury was, in fact, caused by PTS.  Thereafter, the jury determined that the plaintiff failed to prove that the defendant had breached the standard of care, and, accordingly, it returned a verdict in favor of the defendant.  On appeal, the plaintiff argued that the trial court improperly prohibited Gevirtz from testifying on the issue of whether the plaintiff's injury was caused by PTS while permitting Strauch to do so.  The Appellate Court (113 Conn. App. 771) disagreed, determining that because the jury found that the defendant had not breached the standard of care, it was not required to address the issue of causation, and, therefore, any error committed by the trial court in making its evidentiary rulings concerning the cause of the plaintiff's injury was harmless.  It further decided that, notwithstanding the plaintiff's claim to the contrary, there was no indication in the record that the question of what caused the plaintiff's injury was directly related to the issue of whether the defendant had breached the standard of care.  It also rejected the plaintiff's claim that, in permitting Strauch to give testimony regarding PTS while prohibiting Gevirtz from doing the same, the trial court undermined Gevirtz' credibility in the eyes of the jurors with respect to the opinions that he was allowed to provide.  The court explained that Gevirtz testified extensively about the issue of causation and was only prohibited from testifying on the narrow point that PTS did not cause the plaintiff's alleged injury.  Accordingly, the court determined that it was unlikely that the jurors discounted otherwise credible testimony as to the issue of causation or the alleged deviation from the standard of care merely because Gevirtz did not provide an opinion concerning PTS.  Based upon the foregoing, the court concluded that the plaintiff failed to satisfy his burden of establishing that the trial court's evidentiary rulings were harmful.  In this appeal, the Supreme Court will determine whether the Appellate Court's decision was proper.