2004 Ct. Sup. 8769
No. CV 00 0092101 SConnecticut Superior Court, Judicial District of Middlesex at Middletown
June 7, 2004
MEMORANDUM OF DECISION ON 1) MOTION IN ARREST OF JUDGMENT AND/OR MOTION TO SET ASIDE VERDICT AND FOR A NEW TRIAL AND 2) MOTION TO SET ASIDE THE VERDICT AND FOR JUDGMENT NOTWITHSTANDING THE VERDICT
AURIGEMMA, JUDGE.
The trial in this medical malpractice action commenced on April 22, 2004 and ended on May 14, 2004 when the jury returned a verdict for the defendant. On May 21, 2004, the plaintiff filed a Motion in Arrest of Judgment and/or Motion to Set Aside Verdict and for a new Trial on the ground that the notes of three alternate jurors were reviewed by the jury during their deliberations. On that date the plaintiff also filed a Motion to Set Aside the Verdict and for Judgment Notwithstanding the Verdict on the grounds that the verdict was against the weight of credible evidence, and that the defendant failed to offer expert testimony on proximate cause of its special defenses.
The trial of this case included the testimony of fifteen witnesses, twelve of whom were expert witnesses. The following is a summary of the evidence presented. The plaintiff, Stephen Yanaros first saw the defendant, Dr. Kort Knudson, in February of 1995. At that time Dr. Knudson was practicing internal medicine with a subspecialty in endocrinology. At the time he first saw Dr. Knudson, Mr. Yanaros was 37 years old. He smoked one and one half packs of cigarettes a day, had been diagnosed with diabetes in 1993, and was overweight.
Mr. Yanaros started treating with Dr. Knudson because he wanted a physician who could be both his general physician, and treat him for his diabetes. During the time he treated Mr. Yanaros Dr. Knudson tried to persuade Mr. Yanaros to stop smoking and lose weight, but Mr. Yanaros, like many patients, did not do so. When he first saw Dr. Knudson, Mr. Yanaros did not want to take insulin. Dr. Knudson tried to treat Mr. Yanaros’ diabetes with oral medications, but after about a year, persuaded Mr. Yanaros CT Page 8770 to start taking insulin.
In May 1995 Mr. Yanaros was in Florida and experienced back pain. He went to the Tallahassee Memorial Hospital Emergency room. The emergency room records indicate that Mr. Yanaros complained of back pain which he attributed to physical exertion. The back pain was diagnosed as back strain and Mr. Yanaros was given pain medications.
When he returned to Connecticut a few days later Mr. Yanaros called Dr. Knudson’s office for a referral to a chiropractor for his back. Dr. Knudson requested that Mr. Yanaros come into the office and when he did, Dr. Knudson noted the complaint of back pain brought on by physical exertion and concurred with the Tallahassee Memorial Hospital finding that Mr. Yanaros’ back pain had a musculoskeletal origin.
Mr. Yanaros testified that he complained at the Tallahassee Memorial Hospital and to Dr. Knudson that he had pain in his back which radiated around to his chest and went down his arms. However, neither the records of the Tallahassee Memorial Hospital nor those of Dr. Knudson contained any reference to a pain in the chest or to a pain radiating down the arms. Dr. Knudson denied that Mr. Yanaros had ever made any complaints of chest pains and admitted that had he done so, Dr. Knudson would have taken some action to determine whether heart problems were the source of the chest pain.
Mr. Yanaros’ diabetes was under good control in May of 1997. Mr. Yanaros saw Dr. Knudson for a diabetes visit in August of 1997. At that time Mr. Yanaros was taking Rezulin and Insulin. Mr. Yanaros was supposed to see Dr. Knudson for a diabetes visit every three months, which would mean that he should have returned for a diabetes visit in November. He did not do so. Instead, he called for a prescription refill in January 1998. Dr. Knudson gave Mr. Yanaros a refill on his Rezulin and Insulin for only one month. He did so to prompt Mr. Yanaros to come in for another diabetes check-up. It was common for physicians to use prescription limits as a method to bring patients into the office for required visits.
By February of 1998, Mr. Yanaros’ prescriptions for Rezulin and Insulin had run out. However, Mr. Yanaros did not return to see Dr. Knudson. Pharmacy records indicated that after February 1998, Mr. Yanaros had no Rezulin or Insulin. At his deposition Mr. CT Page 8771 Yanaros testified that after January 1998 he continued to take Rezulin and Insulin until May 8, 1998 when he suffered a myocardial infarction. At trial Mr. Yanaros changed his testimony, stating that he had heard that Rezulin had been recalled, and therefore, he stopped taking it. He further testified that when his Insulin prescription ran out he found that his sister-in-law’s deceased mother had been taking the same Insulin prescription that he used, and he continued using her insulin supply until the time of his heart attack.
Both the plaintiff’s and the defendant’s expert witness internists, Dr. Lewinter, and Dr. Caldwell agreed that Rezulin had the effect of reducing the risk of myocardial infarction. Dr. Lewinter stated that if a patient wanted to discontinue Rezulin, the patient should consult his physician for a substitute drug. There was no evidence that Mr. Yanaros ever did so.
During the first week of May 1998 Mr. Yanaros again experienced back pain. He went to see Dr. Geist, an orthopedic surgeon. Dr. Geist diagnosed the pain as being musculoskeletal in origin. Dr. Geist’s records do not indicate that Mr. Yanaros complained of chest pain at that time. The next day, Mr. Yanaros went to Dr. Maryott, a chiropractor. Dr. Maryott’s records do show a complaint of chest pain. However, Dr. Maryott also considered that Mr. Yanaros’ problem was musculoskeletal and did not refer Mr. Yanaros for any treatment or tests with respect to his heart.
On May 7, 1998 Mr. Yanaros telephoned Dr. Knudson after business hours. He was advised that Dr. Knudson was away. The physician covering for Dr. Knudson telephoned Mr. Yanaros later that evening. There was some doubt as to the identity of the covering doctor, who did not testify at trial. Mr. Yanaros testified that he advised the covering doctor about the pain in his back which radiated around to his chest. According to Mr. Yanaros that doctor told him that he thought it could be a heart problem. Mr. Yanaros also testified that the covering doctor told him that he could either go to the emergency room that night, or wait until the following morning. Mr. Yanaros chose to wait until the following morning.
When he went to the emergency room at Middlesex Hospital the following morning, Mr. Yanaros was having or had had a serious myocardial infarction. He was immediately taken by ambulance to Hartford Hospital, where he underwent a quintuple bypass and other lengthy surgical procedures. He remained in Hartford CT Page 8772 Hospital for three months, suffering a serious chest infection, which necessitated further surgical procedures. The myocardial infarction and the multiple surgeries left Mr. Yanaros in a severely impaired state of health.
All expert witnesses who were questioned about the supposed advice given by the doctor covering for Dr. Knudson, that is, that Mr. Yanaros could wait until the following morning to go to the emergency room about a suspected heart problem, expressed surprise that any doctor would not have advised Mr. Yanaros to go immediately to the emergency room.
The plaintiff’s expert, Dr. Lewinter, testified that Mr. Yanaros’ complaints of back pain suggested a cardiac problem and that the standard of care for an internist required that Dr. Knudson refer Mr. Yanaros for an electrocardiogram at some time between 1995 and 1998. The defendant’s experts, Dr. CaIdwell, Dr. Hoffbauer and Dr. Alexander testified that Mr. Yanaros’ records showed absolutely no indication of a heart problem and that the standard of care for an internist did not require that Mr. Yanaros receive an electrocardiogram or referral to a cardiologist.
Dr. Knudson testified that his practice was to obtain a baseline electrocardiagram for his diabetic patients, like Mr. Yanaros, when they reached age 40. Mr. Yanaros was 40 in September 1997. Therefore, had he seen Dr. Yanaros for his three-month diabetes check up in November 1997, or in January 1998, when he called for his prescription refill, an electocardiagram would probably have been performed on him.
Various expert witnesses, including Dr. Caldwell, testified that if Mr. Yanaros had gone to the emergency room the evening of May 7, 1998, rather than the morning of May 8, 1998, he probably would have avoided many of the health problems that he experienced.
In the Complaint, the plaintiff alleges, inter alia, that Stephen Yanaros’ injuries were caused by the failure of Dr. Knudson to perform an electrocardiogram or refer Mr. Yanaros for an electrocardiogram, or refer Mr. Yanaros to a cardiologist, or properly diagnose Mr. Yanaros’ back pain as being a symptom of a cardiac problem.
In the Special Defense, the defendant alleges, inter alia, CT Page 8773 that Stephen Yanaros was himself negligent in that he steadfastly refused to stop smoking, he let his prescriptions for Insulin and Rezulin lapse, he failed to follow Dr. Knudson’s advice to change his lifestyle, and he failed to report to the hospital emergency room on the evening prior to the date that his myocardial infarction was diagnosed, as requested and advised to do so by the physician covering for Dr. Knudson that evening and his negligence was a substantial factor in causing the injuries and damages of which he now complains.
In the preliminary charge, the jury was advised that if they chose to take notes, their notes should govern their verdict, and not the notes of their fellow jurors. They were also advised that their notebooks would be destroyed after the trial. In the charge, the jury was advised that their verdict was to be based solely on the evidence, which was defined as testimony, full exhibits, stipulations by counsel, and facts which the court instructed them that they could find.
With respect to the Special Defense, the jury was advised as follows:
If you find that the plaintiffs have failed to prove that Dr. Knudson was negligent, then you must cease deliberations and find in favor of the defendant, Dr. Knudson.
If you find that Dr. Knudson was negligent, then you must consider the fault of the plaintiff Stephen Yanaros and compare it with that of Dr. Knudson.
The plaintiff presented suggested interrogatories to the jury. Those proposed jury interrogatories did not address the subject of the special defense. Counsel agreed with the court that two verdict forms would be presented to the jury, a defendant’s verdict form and a plaintiffs’ verdict form. The plaintiffs’ verdict form contained lines for four categories of economic damage: past medical expenses, future medical expenses, past lost wages, future lost wages; and two categories of non-economic damages: past and future non-economic damages. It also contained a place for the jury to assess percentage negligence of Dr. Knudson and Mr. Yanaros with the total negligence adding up to 100%.
The charge was given on May 14, 2004 and on that date the jury CT Page 8774 rendered a verdict in favor of the defendant, Dr. Knudson. On May 21, 2004 the plaintiff filed the Motions under consideration. The plaintiff’s attorney, James Horwitz, filed an affidavit in connection with the first Motion in which he stated:
5. After the jury returned the verdict and had been dismissed by the court, Aurigemma, J., I discussed the above-captioned case with the foreman of the jury, Stephen Baronowski.
6. Mr. Baronowski told me that a court clerk placed the notes of the alternate jurors in the jury room. The alternate jurors’ notes were available to the jurors during the course of their deliberations.
7. Mr. Baronowski also told me that certain jurors on the panel read or reviewed the alternate jurors’ notes during the course of the deliberations.
After contacting counsel and the former jurors as to their availability, the court held a hearing on June 3, 2004. Counsel and all six former jurors attended. At the hearing each former juror was sworn and the court asked each one whether he or she had reviewed any portion of the alternate juror notebooks. Two stated that they had not, and were not further questioned. The remaining four stated that Mr. Baronowski, the jury foreman, had read some or all of the notebooks. No juror could recall specifically what those notebooks stated, but three of the four stated that the notebooks contained information which was consistent with the testimony all the jurors had heard at trial. The fourth former juror could not recall what the notebooks of the alternates stated and could not say whether or not the information in the notebook was consistent with the evidence at trial.
The jurors, alternates, and counsel were advised prior to the start of the evidence that the notebooks of jurors and alternates would be destroyed after the verdict. Immediately after the verdict, the only person who was aware that the alternate notebooks should not be destroyed was the plaintiff’s attorney. There was no evidence presented at the hearing as to 1) any effort made by Attorney Horwitz to attempt to preserve the alternate notebooks or 2) whether any such effort would have been successful. At the hearing the notebooks were not presented. The court assumes that they were destroyed immediately after the CT Page 8775 verdict.
If the notebooks of the alternates contained notes as to the evidence, it is difficult to imagine how a review of such notes could prejudice either party. Since the notebooks were not available, the only way to determine whether they contained prejudicial material was questioning the jurors. The purpose of the court’s inquiry was to determine whether the notebooks contained anything that could have had an improper influence on the jury such as a racial or ethnic epithet, cartoon, boldly stated opinion, etc. After the hearing the court concludes that nothing contained in the alternate jurors notebooks improperly influenced the jurors.
The court finds that the jury should not have had the alternate’s notebooks in the jury deliberation room. Those notebooks apparently found their way into the jury room due to an error by the court, and through no fault of either party.
“The rule, long ago enunciated by this court, is that `if it does not appear that [the juror misconduct in question] was occasioned by the prevailing party, or any one in his behalf; if it do[es] not indicate any improper bias upon the juror’s mind, and [if] the court cannot see, that it either had, or might have had, an effect unfavorable to the party moving for a new trial; the verdict ought not to be set aside.’ “Bernier v. National Fence Co., 176 Conn. 622, 628, 410 A.2d 1007 (1979), quoting Pettibone v. Phelps, 13 Conn. 445, 450 (1840).
Williams v. Salamone, 192 Conn. 116, 119, 470 A.2d 694 (1984)
The burden is on the moving party in a civil proceeding to establish that juror misconduct denied him a fair trial Williams v. Salamone, supra at 120. For the reasons set forth above the plaintiff has not established that the presence of the alternate juror notebooks in the jury room denied him a fair trial. The Motion in Arrest of Judgment and/or Motion to Set Aside Verdict and for a new Trial is, therefore, denied.
The basis of the Motion to Set Aside the Verdict and for Judgment Notwithstanding the Verdict is that there was no expert testimony that the plaintiff’s negligence was a proximate cause of his injuries and damages. Since the jury was instructed that CT Page 8776 it did not need to consider the question of the plaintiff’s negligence unless it found that the defendant was negligent, any deficit in the proof with respect to the defendant’s special defense cannot be the basis of setting aside the defendant’s verdict.
Moreover, there was ample expert testimony that the plaintiff’s conduct with respect to his own health care was a proximate cause of his injuries and damages. As set forth above, there was expert opinion expressed by both the plaintiff’s and the defendant’s expert witnesses that the cessation of Rezulin without replacing it with another similar drug could have adverse cardiac consequences. There was uniform agreement amongst all medical experts that a diabetic patient has a responsibility to follow his doctor’s instructions and that failure to do so can increase a patient’s health risks. There was also agreement amongst all medical experts who opined on the subject that the plaintiff’s delay in going to the emergency room probably caused the effects of his myocardial infarction to be more serious than they would have been had he gone to the emergency room earlier. Finally, the plaintiff’s experts stressed that an electrocardiogram performed on the plaintiff would have shown that he had cardiac problems. There was ample evidence that the plaintiff was supposed to have returned for a diabetes checkup with Dr. Knudson in November, December 1997 or January 1998. There is also evidence that Dr. Knudson would have administered an electrocardiogram to the plaintiff at that time. The trier of fact could have found that Mr. Yanaros’s failure to keep his regular appointment at which he would probably have received an electrocardiogram was a proximate cause of his injuries and damages. For the foregoing reasons the Motion to Set Aside the Verdict and for Judgment Notwithstanding the Verdict is denied.
By the court,
Aurigemma, J. CT Page 8777